Gavin Howe
An affidavit is a written statement that is used to set out the facts of a case and is the main way of presenting evidence in court. In family law matters, affidavits are used to support applications and responses. Affidavits must be sworn or affirmed, and signed in front of an authorised witness, who is usually a Justice of the Peace or a lawyer. The person making the affidavit must sign the bottom of each page in the presence of the authorised witness. The purpose of using an authorised person as the witness is to act independently and objectively to witness documents used for official or legal reasons.
| Characteristics | Values |
|---|---|
| Who can witness a family law affidavit | An "authorised person", such as a Justice of the Peace, Commissioner of Oaths, solicitor or barrister. |
| A lawyer, as long as they have not participated in preparing the affidavit or in the proceedings in which the affidavit is intended to be used. | |
| A police officer of or above the rank of sergeant or for the time being in charge of a police station. | |
| A Notary Public or Australian Diplomatic/Consulate Officer (if overseas). | |
| A court registrar. | |
| What to bring | Photographic identification or a driver's license or passport. |
| Any alterations made to the affidavit must be initialed by both the deponent and the witness. |
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What You'll Learn
Authorised persons
In Australia, an affidavit is a written statement that is confirmed by the oath or affirmation of the party making it before a person authorised to receive affidavits. The purpose of using an "authorised person" as the witness to your affidavit evidence is to act independently and objectively to witness documents that will be used for official or legal reasons.
The most common "authorised person" used for witnessing affidavits is a Justice of the Peace (JP). A Justice of the Peace is a voluntary position, and there is no charge for their services. Other authorised people may charge a fee for their services, but there is no set fee.
Other "authorised persons" include:
- A lawyer, as long as they have not participated in preparing the affidavit or in the proceedings in which the affidavit is intended to be used.
- A Commissioner of Oaths.
- A solicitor or barrister.
- A police officer of or above the rank of sergeant or for the time being in charge of a police station.
- A court registrar.
- A Notary Public or Australian Diplomatic/Consulate Officer (if you are overseas).
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Justice of the Peace (JP)
A Justice of the Peace (JP) is an authorised person who can act as an independent and objective witness to documents used for official or legal purposes. In Australia, a JP is typically the most common "authorised person" used for witnessing affidavits.
JPs are trained to be independent and objective witnesses, ensuring that documents are signed and executed properly. They can assist with family law affidavits, which are written statements prepared by a party or witness to present evidence to a court. These affidavits are crucial in family law cases as there is often limited opportunity to give a personal account of evidence in court. By providing an affidavit, your case can run more efficiently as all parties are aware of the evidence beforehand.
When preparing an affidavit, it is essential to follow specific guidelines. The affidavit should be typed with a size 12 font and divided into paragraphs. Each paragraph should ideally cover a single topic, and separate headings can be included to organise the content further. Annexures or exhibits, such as relevant documents or reports, may be attached to support the statements made in the affidavit.
It is important to note that the person making the affidavit, known as the deponent, must sign each page in the presence of the JP. The JP will also witness the signing of the final page, known as the jurat, which includes the full name of the deponent, their signature, and other relevant details. Both the deponent and the JP should sign at the bottom of each page, and any alterations should be initialled by both parties.
In Western Australia, JP document witnessing centres can be found at local government offices, libraries, and shopping centres. Additionally, online search facilities are available to locate a JP in your area. These JPs provide their services to the community free of charge.
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Lawyers
Affidavits are written statements that are used to present evidence (the facts of the case) to a court. They are the main way to present evidence, as there is limited opportunity to give a personal account of your evidence in court. Most evidence is provided by affidavit.
Affidavits must be sworn or affirmed before an authorised witness, who is usually a Justice of the Peace or lawyer. The person making the affidavit needs to sign the bottom of each page in the presence of the authorised witness. The witness must also sign the affidavit and seal the document with their stamp or credentials.
If you need help preparing your affidavit, you can seek legal advice from a lawyer. Lawyers can help you with the affidavit's structure and content to ensure it complies with the relevant court rules. For example, they can advise on the number of pages and attachments allowed, as well as the font size and paragraph format.
In addition to helping with the preparation, a lawyer can act as an authorised witness to the affidavit. This means they will witness and sign the affidavit, confirming that it has been sworn or affirmed by the deponent (the person making the affidavit).
It is important to note that the authorised witness must witness the actual signing of the affidavit and cannot simply witness a pre-signed document. The deponent should also provide identification and ensure that their affidavit is comprehensive, factual, and specific.
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Australian legal practitioners
In Australia, an affidavit is a legal document used in court and tribunal proceedings, as well as for other purposes authorised by law. It is a written statement made by one person, known as the deponent, in the presence of an authorised witness. The deponent must sign the affidavit in the presence of the authorised witness, who will then sign and seal the document with their credentials.
In the context of family law affidavits, it is crucial to use an "authorised person" as the witness to your affidavit evidence, rather than a neighbour or family member. This ensures that the affidavit is independently and objectively witnessed, as it will be used for official or legal reasons. The most common "authorised person" used for witnessing affidavits is a Justice of the Peace ('JP'), a voluntary position that does not charge a fee for witnessing. Other "authorised persons" include a Commissioner for taking Affidavits, a solicitor, or a barrister, who may charge for their services.
When making an application to the Federal Circuit Court and Family Court of Australia ('FCFCOA'), you may be required to supply an affidavit as evidence of the circumstances and facts of your case. This is because there is limited opportunity to give a personal account of your evidence in court, and providing evidence by affidavit allows your family law case to run more efficiently. It is important to note that your affidavit should only include facts that are relevant to your case and support the orders you have requested the Court to make. If you are unsure about what can and cannot be included in your affidavit, you should seek legal advice.
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Court registrars
In the context of family law affidavits, court registrars typically play a role in ensuring compliance with procedural requirements. They may provide guidance on the correct format and content of affidavits, including any applicable page limits, annexure restrictions, and font size specifications. Court registrars can answer questions about court forms and processes, ensuring that affidavits meet the necessary standards for filing.
When it comes to witnessing affidavits, the specific rules vary depending on the legal system. In some jurisdictions, court registrars may be authorised to witness affidavits, particularly for administrative or procedural matters. However, in family law cases, where affidavits serve as evidence, the requirements for authorised witnesses may differ.
In Australia, for example, the Federal Circuit and Family Court of Australia (FCFCOA) specifies that affidavits must be sworn or affirmed before an "authorised witness," typically a Justice of the Peace (JP) or a lawyer who has not participated in preparing the affidavit or the related proceedings. While court staff can provide guidance, they generally cannot offer legal advice. Therefore, individuals seeking assistance with the substantive aspects of their affidavits, beyond administrative guidance, are advised to consult legal professionals.
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Frequently asked questions
A family law affidavit must be witnessed by an "authorised person", such as a Justice of the Peace (JP), Commissioner of Oaths, solicitor, barrister, or lawyer.
The purpose of using an authorised person as a witness is to have someone act as an independent and objective witness to documents that will be used for official or legal reasons.
If you need help finding an authorised person to witness your affidavit, you can search the online directory in your state to find a JP near you.
When going to get your affidavit witnessed, you should bring photographic identification to present to the authorised person. You and the witness should both sign the affidavit, and the witness must seal the document with their stamp or credentials.
