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Seeking urgent recovery orders in the Family Court

What should be included in your client's affidavit

This affidavit is a guide only to the sort of information which could be included in an application. It is important that any information you include in your affidavit reflects the clear instructions given to you by your client. If you were filing an affidavit in matters where there are urgent or clear risks to the child/ren you would need to act quickly and ensure that your affidavit concentrated on the urgent issues.

Personal history

It is important to provide the court with a clear chronology in relation to the relationship. You would normally include the parties, dates of birth, when the relationship commenced, dates of marriage and dates of separation.

Details of the children

Provide the Court with:

  • Names and dates of birth of the children;
  • Parenting and family violence orders.

If there is an Apprehended Violence Order (AVO) provide details of where and when it was made, and include a clear statement about who is the protected person. It is important to attach a copy of the AVO to the affidavit.

Specify any current Parenting Orders or any parenting plans that are in place and detail the particulars of the orders. Attach a copy of the orders to the affidavit.

Arrangements for child/ren before separation

Provide information as to who did what with the child/ren during the relationship. If your client asserts they are the primary caregiver then it is important to provide details of what your client did to support the assertion. Include details of how your client cared for the children, whether they were responsible for ensuring homework was done or for taking the children to a doctor.

If the other party was responsible for assisting in the care of the children it is useful to include a statement about how this occurred.

Family violence during the relationship

If your client alleges specific incidents of violence by the other party, detail those allegations, preferably in chronological order. Ensure that each allegation is specified as well as possible with dates, detailed description of behavior and action that was taken afterwards (for example seeing the doctor).

Involvement by DoCS

Include any details of involvement by the Department of Community Services with the family. Include details of when, why and how it occurred.

Risk issues

Ensure that any risk issues such as drug use, alcohol use, Airport Watch List are covered in specific detail. Provide a detailed description of what occurred and whether there was any report made of; for example, any violence or any treatment sought in relation to violence.

If your client is asserting that the risk arises from drug or alcohol use by the other party it is important that your client provide details about what has led them to form the view that there is a risk.

Issues about your client

If there are issues about your client, for example mental health issues, health issues, drug or alcohol issues, you need to disclose these to the court and show how your client has addressed the issues.

For example if your client has suffered from post natal depression:

“I suffered from post natal depression from the birth of John in 2007 through to January 2008. I was under the care of my GP, Dr Jones who provided me with counselling and support. I say I no longer suffer from post natal depression.”

Arrangements for the child/ren following separation

If separation has already occurred and your client is now the sole caregiver, detail the current routine for the client and the child/ren - paint a picture for the Court of your client as primary parent.

Time spent between the child/ren and applicant/respondent following separation

If child/ren live with your client, detail the arrangements between the parties for contact including routines, how it was agreed, and how it worked.

Events surrounding the child/ren being taken by the respondent

Specifically outline the events surrounding the child/ren being taken by the respondent. Outline the concern that your client has for the child/ren in the care of the respondent including any risks.

Current arrangements for the care of the child/ren

Provide a good summary of all issues relating to your client’s life if the child/ren live with your client. This should include:

  • Accommodation arrangements – what kind of home, how many bedrooms, who shares with whom, who else lives there;
  • Schooling – where do the children go to school, how are they going, are there specific concerns or problems. Annex a recent school report if the children are doing well;
  • Financial – where does the money come from and does the other party pay child support;
  • Practical issues – how far apart do the parties live, how far is that from school.

Proposal for spending time

Set out your client’s proposal for how the other party will spend time with the children.

If your client seeks that the other party’s time be supervised provide details of how the supervision is to occur: for example at a Centre or by a nominated supervisor. If it is at a Centre, include what waiting times there are before the parties can commence attending and if by a nominated supervisor, provide details of why that person is appropriate and give an indication that they have been asked, and have agreed to supervise the children.

If any other restrictions on contact are sought, explain why.

Refuting allegations

If you already know the allegations that will be made, or you have the other party’s affidavit that details those allegations, resist the temptation to respond directly to each allegation. There is nothing worse than an affidavit that reads:

“In relation to paragraph 6(a) of the respondent’s affidavit, I deny the allegation”

and then doesn’t give any further detail to specify the issue. It just encourages the judicial officer to read the other side’s affidavit again!

Anticipate the allegations and respond as part of the body of the affidavit in your client’s own words. For example:

“I deny that I have ever used any prohibitive substances, including speed, heroin or marijuana. I admit that during the relationship I consumed alcohol and generally drank 2-3 middies of beer each night.”

“I deny that I have ever struck the respondent during any argument and say that during our relationship, during arguments I only ever pushed her on one occasion on x/x/x. On that occasion, the following occurred.... “

Ex parte Applications

It is important that you read the rules in relation to what the Court must consider when making Ex parte Orders. If your client has tried to contact the other party or any member of their family or friends, your client should provide details of the attempts they have made. For example:

“I have tried to speak to the respondent by telephoning the mobile number I have. I have not been able to speak to the respondent and I have been diverted to a message bank. I have left 12 messages for the respondent to telephone me on my mobile telephone number 123 444 234. They have not done so.”


“I have spoken to the respondent’s mother Eileen at 9.00am on the XX February 2008 and said to her: “I need to know where John is. He has Amy.” She has replied: “I am not telling you. Get off my property before I call the police.”

Dispense with section 60I certificate

It is important to specify the reasons why your client is seeking to dispense with the requirement for a section 60I certificate. For example:

“I request that I be permitted to file this application before attending family dispute resolution on the grounds that this matter is (stipulate the grounds for seeking the exemption; that is urgency, violence, risk to the child).

I refer to the matters sworn in this affidavit to support my application to file the proceedings before attending family dispute resolution.”