x. Writing affidavits
Purpose
This procedure outlines the process for writing affidavits when making application to the Childrens Court under the Child Protection Act 1999, to ensure the most relevant information is before the court to inform their decision.
Authority
- Child Protection Act 1999, section 6, 9, 10, 51, 59, 61, 83 and 149
- Childrens Court Rules 1997
Affidavits
The purpose of an affidavit is to provide sworn, factual information, to assist the magistrate in making a decision in relation to the application before the court. The Childrens Court Rules 1997 dictate what an affidavit should look like, and the information that it should contain. A Form 25 is the prescribed form for Childrens Court matters. In most cases a departmental officer is the applicant, and the information provided in an affidavit is aimed at supporting the application.
It is the responsibility of the CSO, in consultation with a court coordinator, to provide an acceptable standard of evidentiary material and ensure the most relevant information is before the court to inform their decision.
When an affidavit is required
An affidavit is always required when an application for a child protection order is filed with the Childrens Court.
An affidavit may also be required after an initial application and supporting affidavit have been filed in the following circumstances:
- updating the court on any relevant assessments or change in circumstances, during an adjournment period, including but not limited to:
- changes in applicant status (for example, when another CSO assumes case responsibility for a matter);
- proposed dates and/or outcomes of family group meetings;
- attempts to locate and/or serve parents with court documents; and
- a new case plan and/or updates (review) of an existing case plan;
- in preparation for a child protection hearing, in response to affidavits filed by respondents, including but not limited to:
- affidavits (written and filed separately to departmental affidavits) by witnesses, that the department intends to rely and/or call at the hearing;
- attaching relevant documents informing the other parties as to the evidence the department intends to rely at the hearing;
- when an application is made to revoke a child protection order;
- when an application is made to revoke a child protection order and make a new order;
- in support of extending a CAO, for the purpose/s of outlining the reasons for the need to extend the order, including but not limited to:
- the additional information and assessment that is required to make a decision as to whether the child is in need of protection;
- what attempts have been made by the department to ascertain the required information (for example, a scheduled professional assessment); and
- the likelihood of information becoming available during the course of the extension of the CAO.
- responding to applications filed by parents (for example, an application by the parents/respondents to revoke a child protection order); and
- where a party has initiated an appeal of a decision made by the court.
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Writing the affidavit
An affidavit outlines the evidence of the case to the court. It is important to set the scene and to ensure the evidence is written in a clear manner, without departmental jargon, so that the child's parents, the court and all relevant legal representatives are able to understand the content.
The following information is provided to guide and assist departmental officers in the process of completing an affidavit:
A. Purpose of an affidavit
When drafting an affidavit, the CSO needs to keep in mind:
- that an affidavit tells the story of a matter to someone who knows nothing about it, and who has little time to get across the relevant and pertinent issues;
- wherever possible, the affidavit must always be simple to read and easy to follow;
- that the reader does not have the same level of knowledge of the case that you do, and therefore, the affidavit must 'set the scene'.
B. Establishing the grounds of the application
The CSO will outline in the affidavit the following evidence, taking into consideration the Child Protection Act 1999, section 9, 10, 59 and 61.
- What are the child protection concerns? Wherever possible, this should be 'new' information and should not merely duplicate 'old' information. The court is interested only in what justifies the current application and not what was used to justify a previous application.
- Why the child is in need of protection.
- Why the order sought is the least intrusive (for example, the most appropriate, taking into account all the circumstances).
- The case plan for the child.
- The evidence you are relying on to support your decision-making.
- Wherever possible, the child's views and wishes in regards to the child protection order sought.
Where the application is in relation to an Aboriginal or Torres Strait Islander child, the CSO will also include evidence, having considered the Child Protection Act 1999, section 6 and 83.
Do's when completing an affidavit
- Ask yourself, why do you want that information before the court?
- Why is it relevant?
- What does it tell the court?
- Is the information your best evidence, or do you need to seek further reports, affidavits or assessments?
- Consider seeking affidavits from persons who have direct knowledge about the matter. At the time of seeking these affidavits, advise the author of their likelihood to be subpoenaed, or required for cross examination by other parties should the application proceed.
- Inform the other parties (parent/s legal representatives and the separate representative) of the department's assessment, and what order you are seeking.
Do not's when completing an affidavit
- Do not simply include a paragraph by paragraph summary of events on the file since you have had responsibility for the matter.
- Do not only attach or include a case history (for example, a copy and paste case notes) of a family into an affidavit without ensuring relevance and whether it supports the application.
- Do not identify notifier details in the affidavit, in accordance with the confidentiality provisions of the Child Protection Act 1999, section 186.
C. Contents and structure of an affidavit
1. Basic chronology
A chronology is a good starting point for working on your affidavit. A basic timeline (which you should be able to establish from your file notes) will give you the skeleton outline of what you need to cover.
At this point, a CSO needs to:
- establish who, what, why and how; and
- outline relevant dates, names of parties and places.
The above details are what lawyers and the court will be interested in. If it is not there, you will be asked about it.
Note: If you do not have direct knowledge of this information, then the chronology should be exhibited to your affidavit, with a brief summary contained in the body of the affidavit, linking the relevance of the chronology to the application.
2. Headings
Use headings to assist in understanding, but carefully consider whether headings placed at random (for example, family group meetings) actually break the flow of the story and make it disjointed.
Other options could be to bold the words family group meeting where they appear in the text of the affidavit to make them easy to find or cross refer the reader to other paragraphs of the affidavit where you deal with family group meetings. Requiring the reader to move all over the document should be avoided.
3. Family trees (genograms)
Ask the question, with complex family units, do you need to exhibit a family tree? The answer is yes because:
- you are telling the other parties, and ultimately the decision-maker, 'who is who' in this family; and
- providing this detail from the outset helps, especially with issues like sibling or extended family member contact.
Note: Wherever possible, provide full names, dates of birth, ages and clearly define relationships between family members (for example, biological father, half brother or step sister).
D. Case plans
A CSO must:
- attach a current case plan for the child and summarise the key points to ensure you explain why you seek the current proposed order;
- ensure that the affidavit clearly outlines the rationale for the case planning and the order sought;
- ensure that the case plan goal, outcomes and actions match the child protection order sought and address the stated child protection concerns; and
- detail:
- the particulars for how the case plan will be implemented;
- whether the services noted and/or sought are available;
- whether the case-plan has been discussed with the parents;
- consideration of the viability and/or workability of the plan?
Note: The Child Protection Act 1999, section 59, requires that an order should not be made without a case plan. A case plan will evolve over time and may need to change and adapt to the family's progression. A thorough and detailed case plan may mean that a matter can settle and will get the support of the parent's legal representative and the separate representative, so that a hearing is unnecessary and the application can be dealt with in a timely manner. For further information, refer to the procedures on case planning.
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E. Rationale for current application being the 'least intrusive' order
A CSO must:
- be clear that 'least intrusive' does not mean that you should not be seeking a long-term order. Be realistic, and with thorough case planning, it will be easier to determine the appropriate order to seek.
- remember that the ultimate question is whether the order you seek addresses the child protection concerns, and clearly justify why that is so. The principles of the Child Protection Act 1999, section 5, need to be addressed, and ultimately ask, what is in this child's
best interests?
Completing an affidavit
When completing an affidavit:
- the applicant for a matter is responsible for the completion of an affidavit as supporting material for the application;
- the CSO with case responsibility, is responsible for the completion of an affidavit for subsequent mention dates, to assist the court with updated evidence during the adjournment period (for example, a 'supplementary affidavit');
- the court co-ordinator is responsible for ensuring:
- the correct structure and format are used; and
- the content provides the best evidence and is consistent with the nature of the order applied for; and
- the team leader is responsible for approving the content of the affidavit.
Filing of an affidavit
The applicant must ensure that the supporting affidavit is filed:
- with an application (without exception); and
- on or before the expiry of an existing order; and
- for supplementary affidavits, a minimum of three business days before the next mention.
Note: The information contained in the application form for a child protection order is an unsworn document and is not considered evidence. Therefore, the applicant can not rely solely on it. Further, and only where necessary (for example, where something relevant and/or significant has occurred necessitating updating the court) for a subsequent mention date, the CSO will file an affidavit outlining any updated evidence during the adjournment period.
Service of an affidavit
All affidavits must be served on the respondents (Child Protection Act 1999, section 23, 37 and 52) and the separate representative. The Childrens Court Rules 1997, rule 22, requires a Form 22 Affidavit of Service to be filed in the court, as proof of service, as soon as possible following service of the documents.
Natural justice requires that affidavits must (without exception) be served on the respondents and, where applicable, the separate representative, three business days before the initial mention of the matter in the Childrens Court.
- Last updated
- 30 June 2007
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