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Affidavits and Interim Hearings - Part 3


Tuesday, 9 July 2013

Drafting helpful Affidavits

The result in Chapa [2012] FMCAfam 1420 (18 December 2012) (see Part 1 of this Article) may have been very different if the father had provided one coherent and comprehensive affidavit by himself, setting out the facts and supporting evidence for his own case, and facts which provided evidence and support for his denials of the mother’s vast and vague allegations of family violence against him.

Likewise the mother’s case would have been much stronger if she had provided one coherent and comprehensive affidavit by herself setting out the facts supporting her case, and containing evidence, not just allegations, of family violence.

How to provide Factual Evidence in an Affidavit?

I always ask my clients, when preparing their affidavit material, to “Write me their story” (their version) of what has occurred during the relationship, and try to tell this story to the Court by following these guidelines.

By following these rules of “nonfiction storytelling” we that can move away from broad allegations, and into the realm of good factual evidence:

1. WHEN

2. WHERE

3. WHAT

4. WHO

5. HOW

6. WHY

1. WHEN = (DATES AND TIMES)

  • When a particular fact or incident took place (the relevant date, as precise as possible, should come first);
  • The facts and factual incidents should be listed in chronological (date) order.

2. WHERE

  • Where did the fact occur or the incident happen.
  • E.g. On the bottom step at the southern entrance to Tweed City Shopping Centre.

3. WHAT

  • What happened.
  • E.g. Bob punched me in the head with a closed fist;
  • E.g. we were married;
  • E.g. Stacey was born in the Gold Coast hospital etc.

4. WHO

  • Who were the parties to the incident;
  • Who said it;
  • Who did it, and;
  • WHO WAS PRESENT at the time – these are your WITNESSES.
  • E.g. Leanne was watching (the incident) and I even saw her take her iphone out to record it.
  • Provide full names, (dates of birth if possible), address and telephone numbers of all witnesses and ask them to write and sign a statement of what  they witnessed, what they did and said and how they reacted (their statements are also to follow these guidelines).

5. HOW

  • How it was said or done.
  • E.g. Jack contacted me by telephone at 8.05 am. Marilyn arrived by train at Varsity Lakes Station, Gillian sent me an email at 5.09 pm, Amanda sent me a text message to my mobile number being 0433 etc;
  • How you reacted; E.g. I reacted by throwing my plate of pickled octopus over his head, because (see WHY Below) I was angry with what he had just  said);
  • How the other party reacted; E.g. Ted reacted by slamming the door shut with his left hand.

6. WHY (BECAUSE)

  • Because;
  • Why do think it happened? (this may extend beyond the raw facts and into subjectively but it will allow the Court to understand any relevant thought  processes and my help explain the facts to the Court, and this is acceptable in Family Court parenting proceedings).
  • E.g. Greg ran to the drawer in the bathroom to get bandages because: He needed to stop the flow of blood;
  • E.g. I fell over because I slipped on the wet road.

For purposes of providing evidence in parenting proceedings in the Family Court, I find that if my clients try to follow these 6 simple steps with their Affidavits, then they are 6 steps ahead of the parties in the case of Chapa!


Gary Mallett
Associate Director
Wiltshire Lawyers

Liability limited by a scheme approved under Professional Standards legislation.

This article should not be considered as either formal or informal legal advice.  This article should only be read as general information relating to the particular subject matter it is written about.  The information may or may not apply to the reader's particular circumstances. Wiltshire Lawyers only purport to provide legal advice to clients who have provided detailed instructions and who have formally retained our services.


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Drafting helpful Affidavits

The result in Chapa [2012] FMCAfam 1420 (18 December 2012) (see Part 1 of this Article) may have been very different if the father had provided one coherent and comprehensive affidavit by himself, setting out the facts and supporting evidence for his own case, and facts which provided evidence and support for his denials of the mother’s vast and vague allegations of family violence against him.

Readmore