WA Application for Parenting Orders - Preparing Own Affidavit

[Match]

Hi there,

I'm helping my partner file an application for parenting orders with the Family Court (WA). We have the certificate from Family Dispute Resolution, and I've more or less got a handle on the final and interim orders sought in Form 1 (Initiating Application) and the basic background the Form NP3 (Case Information Affidavit) gives you space to provide.

As I understand it (based on the dot points below), when we lodge the application we also need to file an affidavit not exceeding 10 pages, that can reference (but not include as attachments) up to 5 annexures.

• if you make an application for interim parenting or property Orders, your affidavit must not be longer than 10 pages in length
• There is no page limit for affidavits seeking final parenting or property Orders
• there is no requirement to initially file an Affidavit with your initiating Application if you are seeking only final property Orders
• When filing any Affidavit in the Family Court, as of 1 March 2018, you are not to file any annexures. Whilst you can still refer to annexure in the Affidavit, they are not filed with the Court. They are however served on the other party with the Affidavit. Therefore, there is increased importance on explaining your case within the body of the Affidavit as the Court will not read the annexures unless they are tendered to the judge at the day of the interim or final hearing.

I can only find one or two very short template examples of affidavits online, but I've found some good resources intended for lawyers, and I'm doing my best to follow best practice as far as I understand it:

• I'm structuring it in numbered paragraphs not exceeding 6 lines each
• I'm using headings to try and group the main issues
• I'm ordering the paragraphs chronologically under each issue heading
• I'm using Arial font in 11 point size, with 12 point spacing after each paragraph, and page margins at 2.5 cm all around
• I'm going to use the cover page from the court's template affidavit (the editing is too restricted to use the whole template - it starts with a numbered paragraph - stuffs up my headings! Is it me or do their forms in general seem to really suck?)
• We're going to file in person rather than via the online portal so we can get feedback about any mistakes in person

I understand how legal bills could rack up quickly - going through more than a year's worth of short novels written from his - and I know it's a cliche, absolute nutter of an ex - is time consuming in itself, let alone forming them into a coherent 10 page summary that references all the critical evidence and goes into enough detail to show the argument without actually making the argument.

So, my questions are:

1. Is there anywhere I could source actual examples of well vs. poorly prepared affidavits from old cases?
2. Would anyone on this forum be open to sharing theirs privately (with identifiable information removed)?
3. Should this affidavit focus on supporting the interim orders sought only?
4. Will we have a chance to file an additional (longer) affidavit in support of the final orders sought later?
5. If all the written correspondence that would be included in annexures was written either by the ex or to the ex, do we still need to include copies of her emails, texts, letters etc. when serving her with the affidavit?
6. What's the best way to quote key sections of an email? (I'm trying to keep the paragraphs to 6 lines each, but her sentences alone frequently exceed that length.) This is how I've been introducing them (names changed and a made up but typical example of content):
   1. On 23 November 2019, Agatha wrote in an email to me and Matilda's school: "You're a worthless pig of a father" ... "you don't deserve to live." [continued until 6 line limit]
   2. Agatha continued: "I've told Matilda it's your fault you won't be seeing her this weekend." [continued until 6 line limit]

Thank you all in advance!

 

[sammy01]

There is a book called "breaking Up" by a guy called Robert Larkins. Read it.

Dont spend so much time trying to prove that she is a nutter and that he is not a pig of a father. Family law isn't about proving she is a nutter, it is about proving it is a good thing for the kid to spend time with dad. It is also a good idea to establish that mum and dad can peacefully co-exist. I know, I know, trust me I know... SHE wins by causing conflict, kids should not be exposed to conflict so if there is high conflict then the magistrate might decide to avoid kids being exposed to ongoing conflict it would be best to spend minimal time with one parent. You can guess who that would be.

So you guys wanna establish that the parents get along and have similar parenting styles, sure there is conflict right now, but on the whole mummy and daddy get on great. (I know, I know). So don't bother quoting from vindictive ex's emails. They're of little relevance.

Post your stuff here - redact names etc etc - change some details like age / names of kids just incase the ex bumps into this site and hopefully the good folk here will give you some good advice.

 

[Atticus]

There is a very comprehensive free guide on 'how to run your family law case' from legal aid... Link below.. (click on the link in the page to open in a word document). Chapter 7 is devoted entirely to how to structure & write affidavits.. You will learn much about not only how to write, but what is & is not allowed
How to run a family law case | Victoria Legal Aid

As Sammy has eluded to, don't waste too much time & effort in denigrating the other party..... Spend a great deal of time on the interim orders you are seeking because there may be quite a gap between interim orders & a final hearing, so the pattern of care is established during that interim period, & 90% of the time, consent orders are agree to before a final hearing.... So make sure your interim orders are practical, achievable... You don't want to be seeking xxxx amount of care as an interim, have it granted, & then fess up that oh, actually, this & that is going to be difficult

 

[Match]

Thank you both.

Re: showing that it's a good thing for the kid to spend time with dad - he's pretty much 'Disney dad' at the moment - we have routines (reading aloud before bed etc.) but try to do something new and different and engaging every week - science, art, outdoorsy stuff... always one-on-one time with kid and dad... we threw the last birthday party, have sleepovers with friends, he's involved with the school, with extra-curricular activities... It's honestly a great time when we have the kid, and kid seems very happy and adores his dad. But is this kind of stuff what should be going in an affidavit? I hadn't really thought about including all the positive good time stuff because the conflict is all about trying to protect/get more time to enjoy all that - hence, going to court.

There have been incidents where, for example, the kid will invite us to attend something at school, he'll give the ex a heads up that he's going to be there - and she'll, without saying she's doing so, keep the kid home from school - so that we book the time off work and arrive at the school only find out the kid is absent. That's kind of tip of the iceberg. However, he's been careful the whole time, tried to stay positive and peaceful, not react etc. I can show that he's made consistent attempts to get along, requests to communicate, co-parent, reach an agreement, see more of the kid - but I've got no evidence of them actually getting along unfortunately.

Atticus, thank you, the VLA resource is what I've been using. That's a good point about practicality of interim orders. He's not asking for 50/50, but I'll definitely go through the proposed schedule with a fine tooth comb and make sure it's achievable before we file.

sammy01, it does make me paranoid that she'll stumble across a thread, but the most it would trigger I guess is another series of lengthy emails and possibly a Facebook post. I'll write up some positive points with amended details and post them here to hopefully get some feedback. He has seen a lawyer a couple of times - cost between $400-$500 per appointment and both were super pushy to 'go to battle' so to speak. I'll try and download Larkins' book. I've been reading through a heap of cases on austlii.edu.au but they do tend to deal with situations that either a) involve severe family violence or b) huge sums of money. Neither is applicable in this case - although Wade and Braun (2013) was pretty enlightening!

 

[SophieW]

Hi Match,

I've been a lurker on this forum for a while but your post has motivated me to create an account, due to my own frustrations with the info online re affidavits! The following is drawn from two one-hour convos with a lawyer (paid for), a huge amount of online research, plus the affidavit in question (mine) being successfully filed and heard by the judge.

Re the 10-page limit: This is for the entire Affidavit form, which you will see is three pages. This means the affidavit itself that you write is max 7 pages. Even though you need to seek both interim and final orders on the Initiating Application form, you are still limited to the 10-page interim limit (annoying). I have been assured you have chances to either ask for "leave to add" to an affidavit, and file another one as you get closer to final orders, so for now stick to the 10 (or actually 7) page limit.

I agree that the forms are useless! For the affidavit one, I filled in the three substantive pages (names, signatures etc). In the section where they tell you to start typing your affidavit, I left the lines blank and then inserted by own seven pages after that (a Word doc). This worked perfectly.

Your info re font sounds fine. I didn't leave any gaps in between the headings and the next lot of numbers. I made all the numbers flow through the whole document, i.e., didn't restart numbering after each heading. This makes it easier to refer to "paragraph 60" in the courtroom, rather than saying "paragraph 2 under heading X". The lawyer told us that we could extend the page margins to the max, which we did, which really gives you a lot more room. I didn't know about the six-line paragraph length thing - there were a couple of paragraphs in there that might have been 10 lines, but most paragraphs were two to three lines (one substantive point per numbered paragraph).

Re annexures, this is INCREDIBLY confusing per the online info!! I DID file annexures with the affidavit (lawyer confirmed this is OK), and they were all served and read by the judge. You file five annexures, but Annexure 1 could be, say, "Emails". Then you can include 10 emails in that annexure and number them 1A, 1B etc. You should still serve the emails to her that you quote, because they will be read by the judge as well. Each annexure needs a title page, saying "Annexure 1: Emails" or similar.

Every quote or reference to an annexure in the affidavit needs to be followed by the language "Annexed & marked 1A is a true copy of this email" (where substitute email for text message, handwritten note etc) (this was told to us by the lawyer).

Make sure you stick to the Rules of Evidence (1995), which means you must only report what you (i.e. current partner) heard, saw, smelled, tasted or touched. If you don't have an exact quote e.g. from an email, i.e., if reporting an in-person argument, you need to use the language "Agatha said words to the effect, 'I'll never let you see Martha again.'"

You have to get the entire affidavit witnessed by a JP which involves stamping every annexure and filling in info on the stamp (date, etc), which I thought would be straightforward but it took about an hour and the woman was pretty grumpy - she said she had 10 out the back to do. So possibly leave a few days before any deadlines in case the JP wants to take it away and do it at their leisure.

Very important: All forms, including affidavit annexures must be ONE-SIDED PAGES. We nearly got ours rejected because of this! I agree, file in person. They will tell you what to serve - ask for a Service Kit, because you need to fill that in, get it witnessed by a JP and then file it at the court.

I have never been able to find a sample affidavit online! If you reply with your email, I'd be happy to talk more and possibly share mine.

Sophie

 

[Match]

@SophieW, thank you soooo much for your reply. Sorry for such a late thank you, work took over last year and I had to put all the court stuff aside. But I've finished the draft now!

Would you mind if I messaged it to you? I've followed you, do you need to follow me to unlock the private messaging functionality on here? (I might just be completing overlooking a button somewhere!) @sammy01, I read Larkins' book! And listened to his interview about it online. Both very helpful. Please let me know if you'd be open to reviewing the affi as well. It's a tricky one to redact and publish for public comment, but I'm not too fussed about sending it directly.

 

[Match]

@SophieW Despite the little envelope icon in the corner, I can't for the life of me find a way to message another user (although it does say "Conversations allow you to exchange messages with other members directly." - @lawanswers, am I missing something obvious? If I post my email publicly it will be there forever )

 

[Match]

Hi all, just thought I'd give an update in case this thread comes in handy to someone in the future re: applying for parenting orders. (Also, found a thread saying the 'Conversations' functionality on here is not active.)

At the Family Court of WA, when you file your Initiating Application (Form 1), you do *not* file an Affidavit and/or Annexures.

You only need to file the 11 page "Case Information Affidavit" form (original witnessed by JOTP + 2 copies), along with the Form 1 (original + 2 copies), your Family Dispute Resolution Certificate (original + 2 copies), Marriage Certificate (or child/ren's birth certificates if unmarried).

I did read all this on Parenting but the comcourts portal has the option to upload both an affidavit *and* case information affidavit - confusing... at this point I'm not totally sure when we need to provide the affidavit, or if we'll be bound by the 10 page limit for interim orders... (as per Preparing an affidavit - Family Court of Australia:

Note: In interim proceedings, unless express leave is granted by the Judge into whose docket the matter has been allocated, affidavit material in support of an interim application must not exceed 10 pages in length for each affidavit or contain more than 5 annexures. See Practice Direction No 2 of 2017).

 

[SophieW]

@Match I also cannot find out the Conversations function at all!!! I've posted in the "Pool Room" re this, but just read your reply below saying Conversations isn't functional. Bugger!

All the forms are so confusing! I found that links between pages on the Federal Circuit Court website often didn't work, or directed you to the wrong place. If you DO file an affidavit, at least for the non-WA Fed Circuit Court, the affidavit you write is actually more like 7 pages (because there are 3 pages of official forms you need to use). You can get around the 5 annexures limit by making your annexes A, B, C, D and E and having annexures inside those "headings", e.g., Annexure A1, Annexure A2. We ordered them thematically e.g. A = photographs, B = emails and so on. You can extend the margins as much as you want.

You can also put in wording in the affidavit to ask the judge for leave to make the affidavit and annexures larger - something along the lines of "I am aware of the restriction on affidavit length, but I ask for leave to use more material as it is critical for the case" or something like that.