This website is for use by legal professionals (lawyers and law practices) only. If the information is used incorrectly, you could risk losing money or your legal rights. If you are a member of the public looking for free advice about your legal problems please visit legalaid.vic.gov.au, or contact our Legal Help advice line on 1300 792 387, Monday to Friday from 8 am to 6 pm. 

If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

Drafting affidavits

Information about how to draft an affidavit for a family law matter.

Taking instructions and preparing to draft

When gathering material for an affidavit it is important to think about:

  • the kinds of orders that are being sought
  • what evidence is needed to persuade the court to make these orders.

Start by making a list of the main headings of the matter that need to be considered.

Getting instructions

Get instructions from the client that are relevant to the main headings. It is usually best to structure the document in chronological order.

Look for gaps in the client's story

Review the plan and think critically about whether there are any gaps. If there are, get further instructions. Play devil's advocate and question the client as though in a cross examination. This may help to tease out the facts and to test for weaknesses in the client's story. If so, can these weaknesses be remedied?

Probe the client's history

Are there any particular historical events in client's past that need to be added? For example, do they have a criminal record, or a history of drug and alcohol abuse. Make it clear to them that it is better to know now, rather than finding this out under cross examination.

When drafting, keep checking to make sure that the affidavit is relevant to providing evidence to prove your case.

See version (reviewed in April 2013) 'Affidavits the good, the bad and the very ugly' in Practice resources—Family law resources—Conference papers and articles.

Editing the document

A well drafted affidavit can be very persuasive in court. A poorly drafted one can just make the court cross. It is worth taking time to make sure that it is well laid out, clearly written, concise, easy to scan and read.

This means:

  • using short sentences
  • having one idea per paragraph
  • using language that your client can understand (important because they have to swear to the truthfulness of the document)
  • checking and double-check that this is the 'best evidence'
  • checking that the contents is admissible
  • making sure that your client understands what is in the document (close as possible to their idioms of speech)
  • making sure they understand that they are likely to be asked questions about it will be
  • consider reading to the client if they may have difficulty reading
  • checking if it have all of the information that is necessary to support the orders sought
  • making sure that the client agrees that each statement is true
  • no spelling errors
  • ensuring that all of the contents are relevant to the case to be proven
  • checking that all of the contentious issues have been addressed (those raised by the other side?)
  • checking to make sure the affidavit has enough information for the orders to be granted?
  • checking that you are happy to put your name to the document.

More information

Legislation

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

  • Chapter 8—Part 8.3—affidavits

See Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

Reference

VLA website — Information for lawyers

The family law practice resources link to a paper delivered by Debra Harris at an affidavits workshop on 29 September 2011.

Note: This resource is only available to staff at Victoria Legal Aid.

See version (reviewed in April 2013) 'Affidavits the good, the bad and the very ugly' in Practice resources—Family law resources—Conference papers and articles.

Updated