Your Affidavit Is Not Your Autobiography: How to Tell Your Story So a Judge Can Actually Use It
By Nicole Evans, Managing Director at Barker Evan
There is a moment in many family law matters when a client is asked to prepare material for an affidavit. Their response is often some variation of:
“Finally. I get to tell the Judge what really happened.”
Yes. But perhaps not all of it.
An affidavit is not your autobiography. It is not a diary, a character reference for yourself, a psychological assessment of your former partner or an opportunity to document every irritating thing they have done since 2007.
And, despite how tempting it may be, it is definitely not the legal equivalent of:
“Dear Judge, you are not going to BELIEVE this…”
An affidavit is evidence.
In family law proceedings, it is one of the primary ways parties put evidence before the Federal Circuit and Family Court of Australia. The Court itself describes an affidavit as a written statement of facts and emphasises that it should contain relevant facts supporting the orders a party is asking the Court to make.
That distinction, between telling your story and giving useful evidence, is where many affidavits either succeed or go spectacularly off course. After many years of reading, drafting and responding to affidavits, there are some recurring lessons.
This can be difficult to accept when you are living through a separation. To you, everything feels connected.
The argument at Christmas. The comment his mother made. The school concert she missed. The strange text message. The credit card purchase. The incident involving the barbecue, three neighbours and apparently an unreasonable quantity of prosecco.
Emotionally, these things may all matter. Legally, they may not.
A Judge is ultimately trying to answer particular questions and make particular orders. Your affidavit should help the Judge do that. A very useful test for every paragraph is:
“What does this fact help the Court decide?”
If the answer is nothing, seriously consider deleting it. Good affidavit drafting is often less about what you put in than what you are disciplined enough to leave out.
One of the most common mistakes in affidavits is using conclusions instead of evidence. For example:
“The father is aggressive, controlling and intimidating.”
That tells the Judge what you think. Compare it with:
“On 14 March 2026, during changeover at the children’s school, the father stood approximately one metre from me and shouted, ‘You’ll regret this’. The children were standing beside me. Sophie began crying and asked me in the car why her father was angry.”
Now the Judge has something to assess. The evidence creates the picture. You do not need to colour it in with six adjectives.
The Court’s own guidance says affidavits should generally contain facts rather than opinions, except in circumstances such as properly qualified expert evidence.
There is an old advocacy principle that applies beautifully to affidavits:-
Don’t tell the Judge it was raining. Describe the wet umbrella.
Or, in family law:
Don’t tell the Judge your ex is impossible to communicate with.
Show the Judge the communication.
Compare:
“She constantly prevents me from seeing the children.”
with:
“Between 3 February and 24 March 2026, there were four occasions when my scheduled time with the children did not occur. Those dates were…”
The second version is more persuasive because it can be tested. Dates matter. Times matter. Who was present matters. What was actually said matters. Documents matter.
The more serious the allegation, generally the more important the detail. If you allege family violence, substance abuse, threats, neglect or serious parenting concerns, vague statements can sometimes weaken rather than strengthen your case.
“Many times”, “constantly”, “always” and “never” are dangerous words in affidavits. Family lawyers learn very quickly that there is almost always an exception to “never”. And unfortunately, opposing lawyers have an uncanny ability to locate it.
This sounds obvious. It frequently isn't.
If you are asking the Court to order that the children live primarily with you, your affidavit should contain evidence explaining why that proposed arrangement is in the children's best interests.
If you seek supervised time, explain the factual basis for supervision. If you seek equal or substantial time, explain how that arrangement would work in practice.
Schools.
Travel.
Work schedules.
Communication.
Medical appointments.
Extracurricular activities.
Changeovers.
The mundane practicalities of parenting are often more useful than grand declarations about who loves the children more.
In parenting matters, the child's best interests are the paramount consideration. The current legislation directs the Court to consider matters including safety, the child's views, their developmental, psychological, emotional and cultural needs, each proposed carer's capacity to meet those needs, and the benefit of relationships with parents and other significant people where it is safe to do so.
That tells you something important about affidavit drafting:-
A parenting affidavit should be about the child much more than it is about the parents.
This can be a particularly brutal realisation. Someone may have been a terrible husband and still be a capable father. Someone may have been a difficult wife and still be a loving mother. Marriage grievances and parenting issues are not automatically the same thing.
Affidavits sometimes devote pages to affairs, hurtful comments, emotional distance and the circumstances surrounding separation, only to arrive at the actual parenting issues somewhere around paragraph 87.
Unless those relationship events are relevant to an issue the Court must determine, they can distract from stronger evidence. The Judge does not have a trophy engraved:-
WINNER - BEST SPOUSE 2019 - 2025.
That is not the case being decided.
One of the most underrated characteristics in an affidavit is credibility. And credibility does not require pretending you have behaved perfectly. In fact, insisting that you have done absolutely nothing wrong while your former partner is responsible for every conflict that has occurred since separation can have the opposite effect.
Real relationships are messy.
Real people lose their temper.
Real parents make mistakes.
Sometimes a carefully expressed concession makes the rest of your evidence considerably stronger. For example:-
“I accept that my text message was angry and that I should not have used that language. I sent it after receiving the message referred to above. I have since tried to keep my communications limited to matters concerning the children.”
That sounds like a human being.
Compare:
“At all times I have communicated impeccably, respectfully and entirely in the children's best interests.”
There is a reasonable chance the other side has 437 screenshots suggesting otherwise. Credibility is an asset. Protect it.
Family law affidavits contain a surprising number of amateur psychiatrists.
“My former husband is a narcissist.”
“My former wife has borderline personality disorder.”
“He is clearly a sociopath.”
“She is delusional.”
Unless you have the appropriate professional qualifications and have somehow conducted an appropriate assessment of your former partner, which would raise several other questions, don't diagnose them.
Describe behaviour. Let appropriately qualified experts express expert opinions. The difference matters.
“He is a narcissist” is an opinion.
“During the telephone call, he said X, then did Y” is evidence.
One assists the Court. The other may simply demonstrate that you have recently discovered psychology TikTok.
Parents understandably want the Court to know what their children have told them. But children's statements can raise evidentiary issues and, more importantly, the Court is acutely conscious of children becoming caught in parental conflict.
The Court's guidance also states that, unless ordered otherwise, children under 18 should not prepare affidavits supporting a parent's case.
So resist the temptation to turn your affidavit into a running transcript of everything your child allegedly says about the other parent. There is also an important practical question:-
Why is the child having these conversations with you?
Sometimes there is a perfectly proper reason. Sometimes the affidavit unintentionally reveals that the child has been repeatedly questioned about the other household. That can create a very different impression from the one intended.
Where a children's contact or supervision service is involved, parents sometimes make the mistake of viewing the supervisor as another participant in the litigation.
They aren't your private investigator.
They aren't your advocate.
They aren't there to collect ammunition.
And they definitely do not need a 2,000 word email at 11.47 pm explaining the entire history of your separation before Saturday's visit.
Their neutrality is valuable. If supervised time is occurring, what can be particularly useful is objective observation:
How did the child present?
How did the parent interact with the child?
Was the child settled?
Were boundaries appropriate?
How did transitions occur?
Were directions followed?
Was the parent focused on the child?
Independent observations can be far more informative than two parents simply making competing assertions about one another.
So behave accordingly. A supervised visit is not an audition for Australia's Next Top Parent. It should be about spending safe, meaningful time with your child.
Another common affidavit phenomenon is the annexure avalanche.
Screenshots.
Emails.
School notices.
Photographs.
Bank statements.
Medical documents.
WhatsApp conversations stretching back to the invention of WhatsApp.
More documents do not necessarily equal more evidence. Choose documents because they prove something relevant. A three-line text message proving an important fact may be more powerful than 70 pages of hostile communication. And context matters.
Be very careful about selecting one message from the middle of an argument that began 45 messages earlier. Opposing lawyers tend to enjoy producing messages 1 through 44.
The Court permits relevant documents to be attached to affidavits as annexures, but there are formal requirements, and limits can apply to the number of annexures in interlocutory matters.
The general principle is simple:-
Curate. Don't dump.
Another trap is trying to become the lawyer. Paragraphs such as:
“The respondent's reprehensible conduct clearly demonstrates that it would be contrary to section 60CC and well-established authority for the Court to…”
Stop. That is argument. Your lawyer can argue. Your job as the person making the affidavit is generally to give the evidence from which the argument can be made.
A good affidavit makes the lawyer's submissions easier.
A bad affidavit attempts to make the submissions itself, usually while using the word “clearly” approximately 19 times.
For the record, whenever someone writes “clearly” in litigation, there is a reasonable chance the issue is not clear at all.
Judges are human. Making information easy to understand helps. Headings help. Numbered paragraphs help. A chronology usually helps. The Court itself recommends numbered paragraphs and suggests using headings to divide affidavits into topics or subject areas.
Useful headings might include:
Background
Care arrangements since separation
Current concerns
Communication between the parents
Supervised time
The children's schooling and medical needs
My proposed arrangement
This is much easier to navigate than 128 consecutive paragraphs beginning:
“On or about…”
But chronology should serve the issues. You do not need:-
“In May 2011 we attended Fiji. The holiday was mostly pleasant.”
Unless something legally significant happened in Fiji, let Fiji remain a holiday.
Where there are allegations of family violence or risks to children, affidavit drafting becomes particularly important.
Do not minimise serious conduct. But equally, don't exaggerate it. Explain what happened.
Explain when.
Explain whether children were present.
Explain what happened afterwards.
Explain whether police, doctors, schools or other agencies became involved.
Explain why the incident is relevant to the orders now sought.
Current family law legislation specifically requires the Court to consider safety and risk of family violence when determining parenting arrangements.
Precision is not about making serious allegations sound less serious. It is what makes serious allegations persuasive.
This sounds obvious but is sometimes forgotten during the cathartic drafting stage. An affidavit filed in support of your case must generally be served on the other parties.
Assume your former partner will read every word.
Assume their lawyer will read every word.
Assume someone will compare your affidavit to the text messages, emails, photographs, subpoenaed records and previous statements.
Because they probably will. Before swearing or affirming your affidavit, ask yourself:-
Can I defend this sentence if I am cross-examined about it?
If the answer is:
“Well… technically…”
rewrite it.
Clients sometimes want to include evidence that sounds irresistible:
“I offered them 55% at mediation and they refused!”
Generally, don't.
Communications made in genuine attempts to settle disputes are ordinarily subject to restrictions on admissibility, subject to exceptions. The Court expressly cautions people against putting negotiation and dispute-resolution communications into affidavits without understanding the evidentiary rules.
The fact that you believe your settlement offer proves you are the reasonable person in the case does not necessarily make it admissible evidence.
Perhaps one of the most important lessons is this:-
Longer does not mean stronger.
Judges have very large caseloads. They appreciate material that identifies the real issues.
In interlocutory proceedings there are also actual limits. The Court's current guidance states that, unless leave is obtained, affidavits supporting interlocutory orders must not exceed 25 pages and 10 annexures in Division 1, or 10 pages and five annexures in Division 2.
At interim hearings, the Court's Central Practice Direction also provides for parties generally relying upon one updated and consolidated affidavit from themselves, rather than creating an archaeological dig through every affidavit previously filed.
That should tell us something. The skill is not writing 40 pages. The skill is identifying the 10 pages that matter.
Not perfection. Not literary brilliance. Not the person who sounds the angriest. A useful affidavit allows the Judge to quickly understand:
What are the real issues?
What actually happened?
What evidence supports that version?
What risks, if any, need to be addressed?
What arrangements currently exist?
What orders are being sought?
Most importantly in parenting proceedings, how will those proposed orders serve the child's best interests?
The strongest affidavits often have another quality that is harder to define.
They feel reliable.
They don't exaggerate every disagreement into a catastrophe.
They don't turn every flaw in the other parent into a diagnosis.
They acknowledge inconvenient facts.
They distinguish suspicion from knowledge.
They focus on the children rather than winning the breakup.
And they respect the Judge enough not to make the Judge search through 70 pages to discover what the case is actually about.
Before filing your affidavit, read it once more and ask:
If the Judge only remembered five things from this affidavit, have I made sure they are the right five things?
If not, keep editing. Because the purpose of an affidavit is not to make sure the Court knows everything that happened during your relationship. It is to make sure the Court understands the evidence that matters.
And sometimes the most powerful paragraph in an affidavit is the one you had the good sense to delete.
