Family Court of Western Australia

Affidavits

An affidavit is a written statement prepared by a party or witness. It is the main way you present evidence (the facts of the case) to a court. This page has information on:

  • when to file an affidavit
  • how to write an affidavit
  • what you should say in an affidavit
  • affidavits by other witnesses
  • how to have the affidavit witnessed, and
  • how to file the affidavit.

Any affidavit you file must be served on all parties, including the independent children’s lawyer (if appointed).

When do I file an affidavit?

You need to file an affidavit with an application, response or when directed by the Court. The Court may make procedural orders giving you permission to file an affidavit.

Can I prepare my own affidavit?

Although you can prepare your own affidavit, it is often not easy. If you need help preparing your affidavit, you should seek legal advice. You can get legal advice from a:

  • legal aid office
  • community legal centre, or
  • private law firm.

Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.

How do I write an affidavit?

There are some general rules about how you should write the affidavit:

  • The affidavit must be divided into paragraphs. Each paragraph must deal with only one aspect of the subject matter. It is suggested that each paragraph contain no more than about 6 lines.
  • Each paragraph must be numbered.
  • The affidavit must be typed. Handwritten affidavits will be accepted only in circumstances of urgency, usually involving some immediate threat of harm to a child.
  • You can divide an affidavit into sections under separate hearings, for example, the heading might be ‘Arrangements for the children after separation’ or ‘Property accrued during the marriage’.

You can use the affidavit template to help format your affidavit.

See Practice Direction 1 of 2018 - Attachment of Documents to Affidavits

What can I say in an affidavit?

An affidavit is a statement of facts. Therefore, you should include all the facts that are relevant in your case. If the affidavit is accompanying an application, it is important that your affidavit supports the orders you are asking the Court to make. The affidavit must contain all of the evidence you are relying on. The Judicial Officer may not have time to hear more evidence in Court.

The length of your affidavit will depend on the complexity of your case. Your affidavit does not need to be lengthy as long as you include all the facts that you are relying on as evidence. Try and leave out things not relevant to what the Court has to decide.

What should not be included in an affidavit?

Generally, an affidavit should not set out the opinion of the person making the affidavit; that is, it must be based on facts not your beliefs or views. Include only what you saw and heard wherever possible, not your opinion (for example, you can include details of conversations with someone, but not what you think are the reasons they did something). The exception to including opinions is where the person is giving evidence as an expert; for instance, a psychologist or licensed valuer.

Where possible you should avoid referring to facts that are based on information received from others (known as hearsay evidence). There are, however, a number of exceptions to the hearsay rule. If you need to rely on hearsay evidence in your affidavit, get legal advice to see whether it would be admissible in court.

You should not refer to anything said or documents produced in connection with an attempt to negotiate a settlement of your dispute, as these are not admissible as evidence in Court. If you are unsure about what can and cannot be included in your affidavit, you should seek legal advice.

The judicial officer can make an order striking out any part of an affidavit that is irrelevant, or otherwise improper. This means that the affidavit is treated as if the improper parts do not exist. If you think words should be struck out of an affidavit filed on behalf of the other party, you need to state your objection in writing to the court and the other party at least 14 days before the trial.

Affidavits by other witnesses

If you are relying on evidence from a witness (not an applicant or respondent) to support your case, you will need to file a separate affidavit on their behalf. For example, you would need to file an affidavit if you want the Court to consider evidence from a family member, friend or professional. You should only file an affidavit by a witness if the evidence is relevant to your case.

Unless a court orders otherwise, a child (under the age of 18 years) should not prepare an affidavit to support your case.

Affidavits by witnesses will be discussed with the judicial officer as your case progresses. The initial stages of most family law cases focusses on coming to an agreement with the other party, as the vast majority of disputes are resolved without going to trial.

Can I give my evidence in court instead?

There is limited opportunity to give a personal account of your evidence in court. Most evidence is provided by affidavit. This allows a case to run more quickly and efficiently as all parties know what evidence is before the Court.

You must swear or affirm that the contents of the affidavit are true. When you say something in an affidavit, it is as serious as saying it directly to the judicial officer while you are in the witness box in court.

If you want a witness to give evidence, they should provide an affidavit; they can only give oral evidence instead if the judicial officer gives permission, or if the witness refuses to sign an affidavit. You may have to subpoena a witness to ensure that they attend the trial.

Attaching documents to an affidavit

If you refer to a document in your affidavit, you must attach a copy of it to the back of your affidavit (known as an annexure). Examples of an annexure are a contract of sale or a child’s school report. If there is more than one annexure, you need to refer to each one by a number or letter; for example, Annexure 1 or Annexure A. You also need to number the annexures consecutively, that is, from the first page of the first annexure to the last page of the last annexure.

Each annexure must have a statement signed by the authorised person identifying the annexure as the document referred to in the affidavit. The wording of the statement is:

This is the document referred to as Annexure [insert reference number] in the affidavit of [insert name of person making affidavit], sworn/affirmed at [insert place] on [insert date] before me [authorised person to sign and provide name and qualification].

The statement must be signed at the same time as the affidavit and by the same authorised person.

Where there are five or more annexures or exhibits to an affidavit, each must be clearly identified by tabbing or by numbering pages and making reference to the page number in the body of the affidavit.

Signing an affidavit

All affidavits must be sworn or affirmed before an authorised witness, who is usually a Justice of the Peace or lawyer (see further information on authorised witnesses below).

The person making an affidavit needs to sign the bottom of each page in the presence of the authorised witness. On the last page of the affidavit the following details must be set out:

  • the full name of the person making the affidavit, and their signature
  • whether the affidavit is sworn or affirmed
  • the day and place the person signs the affidavit, and
  • the full name and occupation of the authorised person, and their signature.

If  you are using the affidavit template, these details are included in the template. 

If any alterations (such as corrections, cross-outs or additions) are made to the affidavit, the person making the affidavit and the witness must initial each alteration.

Authorised Witnesses

If you are in Australia, you can have your affidavit witnessed by:

  • a Justice of the Peace
  • a lawyer (as long as they have not participated in preparing the affidavit or in the proceedings in which the affidavit is intended to be used)
  • a public notary
  • a judge or magistrate
  • a person authorised to administer oaths or affirmations for the purpose of court proceedings

If you are overseas, you can have your affidavit witnessed by:

  • an Australian Diplomatic Officer or an Australian Consular Officer
  • a judge, magistrate or justice of the peace from that place
  • a notary public
  • a person who can administer an oath to another person under the law of that place

Last updated: 11-Jun-2018

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