When making an application to the Federal Circuit Court and Family Court of Australia (‘FCFCOA’), you might be required to supply an affidavit in evidence of the circumstances and facts of your case. This is because there is limited opportunity for you to give a personal account of your evidence in court and submitting evidence by affidavit allows your family law case to run more quickly and efficiently.
Your affidavit statement must be prepared on the correct form and drafted and witnessed properly in accordance with the Court Rules. Non-compliant affidavit material may be struck out or uplifted from the Court file. Having your affidavit prepared professionally will ensure accuracy and acceptance by the Court.
The most common “authorised person” used for witnessing affidavits is a Justice of the Peace (‘JP’). Being a JP is a voluntary position and there is no charge to you to have a JP witness your affidavit.
Alternatively, you can also use a Commissioner for taking Affidavits, a solicitor or barrister. However, we should note that these other “authorised persons” may charge for their services, so it is a good idea to talk about fees with them in your initial meeting.
Generally, in most cases, using a Justice of the Peace or solicitor to witness your affidavit is recommended.
It is important to know that, once completed, affidavits must be sworn or affirmed, and then signed, by you (‘the deponent’) in front of a witness who is an “authorised person”.
The purpose of using “authorised persons” as the witness to your affidavit evidence, and not your neighbour or a family member, is so they can act to independently and objectively witness documents which will be used for official or legal reasons.
It is an easy mistake to make, but it is critical that you do not take a pre-signed affidavit to an authorised person for witnessing. They must witness you actually signing the document in front of them. You should also take personal identification with you (such as a driver’s licence or passport) to prove to the witness that you are the deponent.
You and the witness should both sign together at the bottom of each page in the affidavit, before signing the jurat (the final page) which details your name, the date and location of signing, and the credentials of the witness. Ensure that at least one (1) paragraph of the affidavit evidence is present at the top of the final page.
Once you have signed the affidavit in front of the witness, they must also sign and seal the document with their credentials. If you are using a JP, ensure that they provide their JP number.
It is important to remember that if you adjust any detail in your affidavit by hand after it has been printed, both you and your witness must initial next to the change.
Once your affidavit has been drafted and signed with an authorised witness, including any relevant annexures, it must be filed with the Court before any applicable time limits that may apply in your case. If you have a lawyer acting for you, they will handle the lodgement process to ensure your affidavit material is correctly filed with the Court.
If need help finding a witness (an authorised person) for your affidavit, you can search the online directory in your state to find a JP near you. The following links should help you to find an appropriate witness:
If you would like to discuss your situation in more detail, you can book a free no obligation phone consultation with one of our lawyers. We assist separated couples across Australia with all aspects of separation and family law.
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