The affidavit walkthrough
I was at the kitchen table at half past ten on a Tuesday night, three weeks before mediation, trying to write the first draft of my own affidavit. The cursor blinked. I had a coffee gone cold and a stack of text message exports printed out next to the laptop. The instruction from my lawyer had been simple. "First person, factual, numbered paragraphs, no opinions." I sat there for forty minutes and wrote nothing. Every sentence I tried wanted to argue, to plead, to explain. None of them sounded like an affidavit.
What I learnt that night, and over the next dozen drafts, is that an affidavit is a strange piece of writing. It looks like a story. It is not a story. It is a pile of bricks. Each brick is a fact you can prove. The barrister picks up the bricks and builds something with them later. Your job is to make the bricks square and clean.
This is plain explanation, not legal advice. For your specific situation, see a solicitor.
What an affidavit actually is
An affidavit is sworn evidence in writing. It is a statement made on oath or affirmation, signed in front of a witness who is authorised to take it (a solicitor, a justice of the peace, a notary). When you sign it, you are saying, under threat of perjury, that the contents are true to the best of your knowledge.
In the Federal Circuit and Family Court of Australia, almost every contested step happens on affidavit evidence first. The interim hearings, the procedural applications, the consent order applications, the property and parenting cases. You file affidavits. The other side files affidavits. The judge reads them. Witnesses might be cross-examined on what they said in their affidavit, but the affidavit itself is the spine of the case.
The format is regulated. Numbered paragraphs. First person. The deponent's name and address at the top. A jurat at the end (the bit where you swear or affirm in front of the witness). Annexures at the back, each one labelled and referenced in the body. The court has a template. Use it. Do not get creative with the layout.
What gets in
The rule of thumb is this. If a polite stranger could verify it, it can go in. If only you and your feelings know about it, it probably cannot.
- Events you saw or heard, with dates and locations
- Conversations you were part of, in direct speech where possible ("she said, 'I am taking the children to my sister's'")
- Documents you wrote, received, or signed (attached as annexures)
- Text messages and emails (annexed in full, not paraphrased)
- Financial records, bank statements, payslips
- Photographs, where relevant and dated
- What a child said to you, attributed and dated, kept short
For each fact, the affidavit needs to make clear how you know it. "On 14 March 2026 at approximately 6.40 pm, I returned home from work and saw that the front door was open." That is admissible. "She had been planning to leave for months." That is not, unless you can say how you know.
Direct speech is gold. The court is much happier with "she said, 'I want a divorce'" than with "she told me she wanted a divorce". The first is what you heard. The second is your interpretation. They look similar on the page. They behave differently in cross-examination.
What stays out
The single biggest mistake men make in their first affidavit is treating it as a chance to tell the judge what kind of person their ex is. It is not. The judge does not want to know. Character attacks land badly, get struck out, and make you look unreliable on the bits that were factual.
Out it goes:
- Opinions about the other party's character, parenting, or motives
- Allegations you cannot back up with a date, a witness, or a document
- Hearsay (what someone else told you, unless an exception applies)
- Argument and submission ("the court should find that...")
- Editorialising adjectives ("she manipulatively withheld the children")
- Long histories of the relationship, unless the court asked for them
- Anything you would not want read aloud at your daughter's wedding in twenty years
The hearsay rule trips everyone up. If you write, "my mother told me that the children were upset when they came back from their mother's", that is hearsay and it gets struck. If your mother has something to say, your mother files her own affidavit. You stick to what you saw.
The body metaphor is this. Drafting an affidavit is like packing a parachute. Every fold has to lie flat. Every line has to hold. Anything bunched up or sloppy will catch on something on the way down, and at that point it is too late to fix.
The discovery rules
Once you file your affidavit, the other side gets a copy. Their lawyer will read it line by line, looking for two things. Things they can disprove. Things they can use against you. Anything you exaggerate, anything you guess at, anything you describe in language warmer than the facts justify, is a place they will dig.
There is also a duty of disclosure that runs alongside the affidavit. In property matters especially, you must disclose your full financial position. Bank statements for the relevant period, tax returns, super statements, business records, any trust or company you have an interest in. Holding back is not a strategy. It is a cost order waiting to happen, and judges have a long memory for it.
If you find a document after you have filed your affidavit that contradicts something you said, tell your lawyer immediately. A supplementary affidavit correcting yourself, filed early, is a small embarrassment. The same correction extracted under cross-examination is a disaster.
The cross-examination risk
If your matter goes to a final hearing, you will be cross-examined on your affidavit. The barrister for the other side has had your document for weeks. They have marked it up. They have a list. They are going to walk you through the parts where you reached for a stronger word than the facts supported, and they are going to ask you, slowly, whether you really meant that, or whether you were just expressing how you felt at the time.
If you exaggerated, this is where it costs you. Not because the exaggeration mattered to the case, but because once the judge sees you back away from one paragraph, every other paragraph gets weighed differently. Credibility is not a single brick. It is the mortar that holds the whole wall.
The defence against this is simple, and it is dull. Write the affidavit at the level of certainty you can actually defend under pressure. If you "think" something happened in March, write that you "recall" it happened "in or around March". If you cannot remember the exact words she said, write that you cannot remember the exact words but the substance was X. The barrister cannot break a paragraph that already admits its own limits.
PAUSE before each adjective. Most of them are decorative. The factual paragraph reads stronger without them.
The drafting process
A good affidavit is drafted three or four times. The first draft is yours, sitting at the kitchen table, getting the events down in roughly the right order. The second draft is the lawyer's, where they cut out the inadmissible parts and reshape the rest. The third draft is yours again, where you check that the trimmed version is still true to what happened. The fourth, if needed, fixes the last edges.
Take your time. Do not file it the day it is due. The court has deadlines for a reason, but a rushed affidavit is the document you will regret most when you are sitting in the witness box. If you need an extension, ask early. Most judges will give one for a first affidavit if you have a sensible reason.
When you sign, read it once more, slowly, out loud if you can. The deponent's clause says "I believe the contents to be true". You are saying that under oath. Take the minute it costs to mean it.
Final note
The affidavit is the most powerful piece of writing you will do in the whole process, and the easiest one to get wrong. Plain. Numbered. Dated. Provable. No adjectives that cannot be defended. No allegations that cannot be sourced. No opinions, no character attacks, no speeches. Just the bricks.
The lawyer builds the wall. You square the bricks.
Square the bricks. Sign clean.