CHECKLIST FOR PREPARING A FAMILY LAW AFFIDAVIT

Disclaimer
The author of this checklist has assumed that lawyers will exercise their professional judgement with respect to the correctness and applicability of the material. This checklist should be used only as an initial reference point. Reliance on this checklist to the exclusion of other resources is irresponsible, as conduct of each file depends on its own particular circumstances and instructions of the client. This checklist should be used only as a secondary reference. For definitive answers, lawyers should refer to applicable statutes, regulations, practice directions and case law. The author of this checklist accepts no responsibility for any errors or omissions, and expressly disclaims any such responsibility. Checklists are generally used for the purposes of protecting your clients interests and managing professional liability risks.

No.

FAMILY LAW AFFIDAVIT CHECKLIST Family Court of Western Australia THINGS YOU SHOULD DO
Do the Family Law Rules 2004 allow for the affidavit to be filed and if not do you have leave of the Family Court?

REFERENCE

YES /NO

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Rule15.05 Rule 15.06

Are you relying on evidence in the affidavit only for the purpose of the application for which it was filed?
Did you address the relevant issues under s60B FLA 1975 and s60CC FLA 1975 in parenting cases? Did you address the relevant issues under s79 FLA 1975 and s75(2) FLA 1975 in financial cases by using the four - step process as the basic structure? Did you use two clearly marked and distinct sections of the affidavit - one for parenting issues and the other for financial issues? Did you include facts about what the deponent heard, saw, felt, smelt or tasted? Avoid stating the state of mind: "I thought..", "I understood", I intended..." Did you comply with the rules about hearsay in property and children's matters?

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Do you have records of all your sources of evidence? Did you include evidence that is anticipated to be adduced by the other party?

10 Did you include evidence that is admissible and relevant? 11 Did the deponent and the witness sign at the bottom of each page of the affidavit? 12 Did the the deponent and the witness initialled any corrections made? 13 Did you identify the parties and refer to them as husband and wife? 14 Did you include date of birth of the parties and their children? 15 Did you include the dates of start of cohabitation, marriage and separation? 16 Did you lay out the affidavit in chronological order?

Rule 15.09 Rule 15.09(1)(d) Rule 15.09(2)

Did you include no more than 3 sentences in each paragraph, confined to a distinct part of Rule 15.08(9) 17 the subject matter? Ideally you should use one sentence per paragraph so that there will be only one question on one fact at a time. 18 Did you number all pages of the affidavit including the annexures? Did you refer to annexures (or exhibits) by page number? E.g. "Annexed hereto and 19 marked "B" (page 7) is a copy of my employment contract." Makes it easier for the judicial officer to find. Did you highlight references to annexures (or exhibits) in bold? E.g. "Annexed hereto and 20 marked "B" (page 7) is a copy of my employment contract." Makes it easier for the judicial officer to find. 21 Did you include diary entries, letters and file notes? Did you include all conversations in direct speech? Did you preface the conversation with evidence of: 1) When the conversation took place; 22 2) where the conversation took place; 3) which the conversation took place with; 4) if relevant the title, position or status of the other speaker; and 5) who if anyone was also present when the conversation took place. 23 If the deponent cannot recall the exact words used, did you include the following clause: "A conversation took place with words to the effect of:"

Rule 15.12 Practice Management Guidelines - s 35.2

24 Did you use the active form and avoided passive forms? Did you write any reference to dates, numbers and amounts in figures, not words, except 25 for the name of the month.The second of July, Nineteen Hundred and Sixty-Four must be written as 2 July 1964. Twenty dollars must be written as $20.00 26 Did you tab the annexures if you had 5 or more of them? 27 Did you include an index as the first page of your annexures if more than 10? 28 29 Did you use an exhibit in the form of a folder if your annexures were more than 2.5 cm thick? Did you state the source of information and the evidence of delay or hardship if information and belief is to be relied upon?

Rule 15.09(3) Practice Management Guidelines - s 35.2

Rule 15.12(3)

30 Are you expressly replying to another deponent's evidence in a response to an affidavit? 31 Did you include a table of contents if the affidavit is 10 pages or longer? 32 Did you check the affidavit for grammatical mistakes and spelling errors? 33 Did you type the affidavit? (unless there was a danger of harm to a child)

Practice Management

Guidelines - s 35.1
34 Did you comply with the general requirements for documents for filing?

Rule 24.01

If a deponent is illiterate, blind, or physically incapable of signing an affidavit, did the witness before whom the affidavit was made certify, at the end of the affidavit, that:
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a) the affidavit was read to the deponent; b) the deponent seemed to understand the affidavit; and c) for a deponent physically incapable of signing -- the deponent indicated that the contents were true.
If you have answered NO to any of 1 to 31 above you may wish to review the affidavit.

Rule 15.10(1)

THINGS YOU SHOULDN'T DO

36 Did you annex illegible copies? 37 Did you annex copies of leases, mortgages or transfer documents if adequate discovery? Documents should be annexed only for the purpose of proving contentious facts independently. Did you quote a document instead of just annexing it? It is sufficient to say that a document was prepared and sent off by the witness or that a document was received, 38 read and acted on and describe the action. Did you interpret a document? "What I meant in paragraph 2 was..." is not likely to be admissible. Did you use forms like: " He talked about...", "I informed her...", "I related to him my concern about...", We discussed...", "We agreed..."

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41 Did you use lawyer speak instead of plain English? Did you include unqualified opinion evidence, or evidence that is inadmissible, unnecessary, irrelevant, unreasonably long, scandalous, speculative or argumentative? 42 Such evidence may be struck out and your client ordered to pay the costs of the other party. 43 Did you include any pleadings, submissions or conclusions? 44 Did you ask the Honourable Court to do this or that? Affidavit is not the documents for seeking orders. 45 Did you include a statement such as this I do not know and cannot admit.... 46 Did you crave leave from the Honourable Court? 47 Did you use present instead of past tense? 48 Did you admit, deny or not admit paragraphs in the other party's affidavit? 49 Did you use capital letters or big fonts to emphasize particular text? If you have answered YES to any of 32 to 45 above you may wish to review the affidavit. Example of objectionable content

Rule 15.13 s 135 Evidence Act

Rule 15.13

A third cheque for $10,000 was issued to my daughter who deposited the amount Secondary evidence of a document into the loan account on 19 February 1996. As far as I know, my daughter and her husband managed to buy the property with the funds borrowed from my wife and me. This was money for the deposit and for completion of the purchase of the property.
Speculation Conclusion

A third cheque for $10,000 was issued to my daughter who deposited the amount Hearsay into the loan account on 19 February 1996. I also know that my son-in-law has been taking money from the loan.
Conclusion without foundation