As the old saying goes, there are many sides to any story. But if you going to trial in a court, how do you ensure the court knows your story is true? Preparing an affidavit for your trial can help cement the evidence that you present and affirm your account of events. Keeping reading this Business Kitz blog to find out more!

What is an affidavit?

An affidavit is a written statement that outlines a sworn or affirmed version of events, supported by facts and evidence, to support the argument of one party in litigation. A legal dispute involves the disagreement of two parties. Throughout the legal proceedings of this dispute, evidence is required from both parties to justify their arguments. Affidavits also help provide context, timelines and details of the dispute during the trial stage.

When do I need to file an affidavit?

An affidavit must be filed with any application or response seeking interlocutory orders, or when it is demanded by the judge, such as in the court hearing. A deadline will therefore be set by the court. If you do not meet the deadline, your evidence may be dismissed by the court, or the other person may ask for your payment of their legal fees due to late lodgement. 

Can I prepare my own affidavit?

If you are for some reason unable to obtain legal assistance in creating your affidavit, you can complete the document as a respondent. There are numerous online resources such as templates to assist you with this process, especially ones specific to your state/territory. If you are struggling to put this together, feel free to reach out to our sister company, Legal Kitz, who can provide advice on structuring and putting your document together. Once the affidavit is written, you must complete an affidavit form which can be found online, provided by your relevant state/territory; QLD, NSW, VIC, SA, WA, TAS

Can witnesses be required to provide an affidavit?

An affidavit may also be required from a witness depending on any evidence that is required to support your case. If you are dependant upon a third party to support your case (e.g. family member, friend, professional), a separate affidavit must be filed on their behalf. This should only be conducted if the third party evidence is relevant to your case. A child under the age of 18 years old cannot prepare an affidavit, unless ordered and approved by the court.

Top tips on structure

• The format must be legible, concise and structured, allowing the court to easily read and analyse the evidence within the written statement. This means that an affidavit should contain a series of short, numbered paragraphs (statement) with each statement that explains a relevant fact.

• Although these paragraphs are structured, the document should tell a story, so it is important to make it easy to follow and sequential as the way it looks can shape the impression the person reading it forms of you. 

• Using headings will allow your reader to follow the story, whilst understanding and recognising the key points of your information.

• It is recommended to use size 12 font, with each page numbered consecutively.

• Follow the guidelines of the template affidavit forms provided by your state.

What content should be included?

An affidavit gives an overview of your entire case, evidence, and story. This holds the key to the understanding of your case through the eyes of the legal system. 

• Introduce yourself: State your full name, address and occupation. It is then important to explain why you are making the affidavit, whether that be in response to another parties application or to support your own. During your introduction, you have the opportunity to detail your family situation, qualifications or work history, which will humanise your statements, and create better understanding of you, as an individual to the courts. 
• State the facts: Use first person (“I saw”, “said to me”, etc.) to recount all the relevant facts to your case, including what you saw, said, or heard. It is important to remain factual and not include any opinion-based wording (“I think”, “I assume”, etc.). If any information you submit is deemed oppressive or irrelevant, the affidavit will be deemed inadmissible. You must also not include any facts that you have heard, as it is considered ‘hearsay’.
• No guessing: If there is certain evidence that you may not fully recall or are unsure about, do not include this, as your statement must be fully accurate.

What is the process of an affidavit?

1. Primary evidence - Collect and detail all of the direct evidence that you have personally witnessed or heard.
2. Affirming the document - Once you or your lawyer has finished drafting the affidavit you must get it sworn or affirmed. This means that you are confirming that everything is 100% honest and truthful. This will typically occur by taking an oath whilst holding a religious text. In front of an authorised witness (solicitor, barrister, or Justice of the Peace) you must sign the document, as well as have a witness sign the document, for it to become legally tenable. 
3. Attaching documents - If there are any additional documents that are referred to as evidence you may include these as either an ‘annexure’ or ‘exhibit’. Each additional document must be signed by the witness to attest that the document is what is being referred to in the affidavit. These must be numbered chronologically e.g. “exhibit A, exhibit B, etc”. Typically annexures are used for smaller affidavits, whereas an exhibit is used to submit a longer-form affidavit with more evidence. 

Legal Advice

If you require any assistance in preparing an affidavit or simply need legal advice on your specific case or the structure of the document, please do not hesitate to contact our sister company, Legal Kitz. You can contact us by phone on 1300 988 954 or email to info@legalkitz.com.au. We offer a FREE 30-minute consultation for all your legal needs.

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