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Preparing an AFFIDAVIT

Updated: Mar 30, 2022

If you have experienced HARM, it is imperative to record that harm on a legal document.


An Affidavit is the best document to use.


Here is a little more about Affidavits:


What is an Affidavit?

1. An affidavit is the written statement of a person which sets out facts that are within that person’s own knowledge. Affidavits are often required in court proceedings as the evidence of the person giving the affidavit.


It is the main way you present evidence. An affidavit is a statement of facts.


Therefore, you should include all the facts that are relevant in your case.


An affidavit must be signed by the person giving the affidavit and their signature must be witnessed by a lawyer; either a barrister or solicitor, or another properly qualified person such as a Justice of the Peace.





How Do I Write an Affidavit?

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


(a) 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.


(b) Each paragraph must be numbered.


(c) 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.


(d) You can divide an affidavit into sections under separate hearings.


(e) Introduce yourself

  • Most template affidavit forms start with you setting out your full name, address and occupation.

  • It can be a good idea to use the next paragraph to explain why you are making the affidavit – is it to respond to something the other party has filed or to support an application you have made?

  • It is also okay to provide some small details about yourself at the beginning of your affidavit, like your family situation, qualifications or work history. This helps the court begin to form an impression of you and understand why you should be considered a trustworthy person.



Write in the first person about facts you know

3. If you are using an affidavit in court proceedings it will be the basis of your case, so you need to be sure that the things you put in your affidavit are true and accurate, as you can be cross-examined o this contents.


You need to write about what you did, saw, said or heard.


You should write your affidavit in first person (“I went”, “I said” etc).


You cannot include your opinion or what you think has happened – just what you know.


You should not include your submissions, or arguments about what the outcome of the case should be.


Be careful not to include facts about what someone else told you (this is called hearsay), unless you have evidence to back this up. Evidence may include text messages, emails, a third person present at the time of the incident.


Avoiding Hearsay

4. 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.


Where possible you should avoid referring to facts that are based on information received from others (known as hearsay evidence).


If you want to rely on a document as evidence, you can attach it to your affidavit, and you must then refer to the attachment in your affidavit. Where there are five or more attachments to an affidavit, each must be clearly identified.


Other Important tips to preparing an Affidavit

5. Keep it as simple as possible. The statements in each numbered paragraph in an affidavit should follow logically from the statement before. Sometimes this means facts need to be set out in chronological order.


Write your affidavit using the language you use in every day speech because this is the way you will talk when you are cross-examined about your affidavit.


Stick to what is relevant. The laws of evidence apply to any affidavit filed in a court proceeding so you need to make sure that the information you provide is relevant and otherwise admissible.


Your credibility is your reputation for telling the truth and being trustworthy.


Don’t guess. Your affidavit needs to be accurate.

If you are not sure about something or can’t really remember, be honest about this.


Be specific about conversations. Be specific about timing and frequency, if it is is relevant. Detail that does not add anything to the substance of your story should not be included.


Try to be factual, not emotional. Your Affidavit will be more persuasive if you put your emotions to one side while you prepare your affidavit. Exaggeration, statements designed to embarrass the other side or your personal opinion about the other side’s character will only harm your credibility.


If you include inappropriate or irrelevant material in an affidavit the other side may make an application for that material to be struck out (removed). If the court agrees, it might order you to pay the other party’s legal costs for bringing that application.


Give copies of all relevant documents and explain where you got them.


Signing an affidavit

6. Sign your affidavit, by including the following required fields:

  1. the full name of the person making the affidavit, and their signature.

  2. whether the affidavit is sworn or affirmed.

  3. the day and place the person signs the affidavit, and.

  4. the full name and occupation of the authorised person, and their signature.

Swearing an Affidavit

7. You must swear or affirm that the contents of the affidavit are true.

All affidavits must be sworn or affirmed before an authorised witness, who is usually a Justice of the Peace or lawyer.


If the person making the affidavit is illiterate, blind or physically incapable of signing, the authorised witness must certify, at the end of the affidavit, that:

  1. The affidavit was read to the person;

  2. The person making the affidavit seemed to understand the affidavit; and

  3. For a person who is physically incapable of signing, that the person indicated that the contents of their affidavit were true.

Authorised Witnesses

8. 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.

9. 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.


10. Spell check, grammar check, date check and fact check.

Make sure you do not hand in the first draft of your Affidavit.

Instead, be careful in reviewing its details and edit anything that is not consistent with the above.


RELEVANT DOCUEMNTS


An Affidavit Template in WORD format is attached here for your convenience:

CIV_Form_2
.doc
Download DOC • 35KB

Here is the Magistrates Court Affidavit Civil Fact Sheet:

Magistrates Court Affidavit Civil Factsheet
.pdf
Download PDF • 202KB

General Procedure Information Sheet:

Starting_general_procedure_claim
.pdf
Download PDF • 752KB

 

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