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08 Affidavits


Summary

An affidavit is a written statement of fact by a person (deponent) for use as evidence in court proceedings. The role of the JP is to ensure that the affidavit is correctly formatted. The format differs depending on the court it is to be presented in. However there are some standard features. The Uniform Civil Procedures Rules 1999 set out what is compulsory for affidavits used in Queensland Courts, Magistrates, District and Supreme Courts. The Family Law Rules 2004 set out the requirements of affidavits presented to the Family Court and Federal Circuit Court of Australia.

Affidavits must be sworn or affirmed with a jurat on the final page. Affidavits frequently contain additional information referred to in the affidavit, such as documents or photos, attached to the affidavit. For Queensland courts these are called "exhibits" and for the Federal Courts "annexures".

The Body of the Affidavit

Check

  • the affidavit is written in the first person
  • all paragraphs are numbered
  • all pages are numbered
  • at the start the affidavit contains the words "make oath and say" or "truly affirm and declare"
  • if annexures/exhibits are included they are referred to in the body of the affidavit either by letter or number e.g. Annexure A
  • all changes are initialled by the deponent and JP

Process

  • Check and note the identity of the person.
  • Determine the type of affidavit and carry out the checks listed above.
  • Give the requisite warning followed by the oath or affirmation.
  • Each page must be signed by the deponent and JP. This includes the first/front page, even if there is no requirement shown. The deponent signs in the left hand bottom corner and the JP in the right. Have the deponent sign first.
  • Have the deponent sign the jurat and then the JP completes, signs and seals it.

Notes

  • Usually the courts require three copies of an affidavit. The JP need only witness one and the deponent can copy signed affidavit. If the deponent presents three copies for signature it is up to the JP to decide whether to sign all three.
  • Where there is more than one deponent making the affidavit, ensure that all names and addresses appear at the beginning of the affidavit. The affidavit must be in the form of "we", not "I". Have each deponent swear/affirm separately and all deponents must sign each page. On the jurat each deponent must sign. If all deponents are present together only a single JP witness signature is needed, otherwise a JP witnesses each signature separately.

Insertions (Family/Federal Court)

The Family/Federal Courts make provisions for an addendum to the body of the affidavit. This is a continuation of evidence and forms part of the body of the affidavit. It is referred to as "attached". This is not an annexure. It must be placed between the first page of the affidavit and the jurat. Each page must be signed by the deponent and JP.

Annexures/Exhibits

Determine if additional information in the form of documents attached to the back of the affidavit is referred to within the affidavit. The additional information may be just one page, or it may comprise of a group of different documents to form several exhibits or annexures.

The first page of each exhibit or annexure must contain appropriate Certificate wording and be signed by the JP before whom the affidavit is sworn. Where there is no space to do this a separate Certificate of Exhibit/Annexure must be completed and placed at the beginning of the exhibit/annexure.

Check

  • the type of affidavit to determine if the attachments are referred to as annexures or exhibits.
  • that the annexure/exhibit is referred to in the body of the affidavit.
  • that each annexure/exhibit has a letter or number or identifying mark.
  • that the annexure/exhibit pages are numbered. Annexures/exhibits should be numbered consecutively i.e the first page of the first annexure/exhibit is page 1, then the numbering continues for the next and other annexures/exhibits. The last page of the last annexure/exhibit may be page 50. 
  • that each annexure/exhibit contains a Certificate of Annexure/Exhibit.

Exhibits (for Queensland Courts)

  • There must be a Certificate of Exhibit for each exhibit as the first page. Some courts have their own printed Certificate of Exhibit. If not completed then fill in the appropriate information. Both the deponent and the JP must sign. The JP adds name, qualification and number.
  • There may be a Certificate of Exhibit box on the bottom of the page. If not completed suggest the deponent completes this.
  • Where there is no printed format the following wording should be used: "This is the exhibit marked ... referred to in the affidavit of...deponent name, sworn/affirmed on ...date. Deponent then signs and JP signs with name, qualification, and number.
  • If there is more than one page add, "This and the following ... pages is the exhibit marked ... of ...".

Annexures (Family Court, Federal Court)

  • Each annexure must have a statement signed by the JP identifying the annexure as the document referred to in the affidavit of ....
  • If there is no space to place this on the first page of the annexure then insert a separate annexure cover page with the statement on it.
  • The statement wording is: "This is the document referred to as Annexure ... in the Affidavit of ...deponent, sworn/affirmed at ...place, on ...date, before me ...name", sign, qualification, number.
  • If there is more than one page to the annexure then add "This and the following ... pages is the annexure marked ... of ...".

Notes 

  • It is not necessary to use the seal on certificates of exhibits or statements of annexures, as they form part of the affidavit which you have already sealed.
  • Do not use the "certified copy" stamp when handling Family/Federal Court documents.
  • Statutory Declarations are not acceptable in the Family/Federal Court.

Oaths of Service

A number of courts may require a document to be served on another person, followed by an affidavit where the deponent swears that the document has been served. These are usually in a printed format. Treat them as any other affidavit.
  • Check and note the identity of the person.
  • Give the requisite warning followed by the oath or affirmation.
  • Have the deponent sign.
  • Then JP signs, seals, name, number and date.

Alterations to a Sworn Affidavit

There are situations when a sworn affidavit may need to be altered. This may be minor alterations, such as incorrect spelling of a name, date, which does not require a new affidavit to be made. In these circumstances the deponent of the original affidavit must present it to a JP to be resworn. This does not have to be the original JP.

Process

  • Check and note the identity of the person.
  • Give the requisite warning followed by the oath or affirmation.
  • The deponent and the JP initial each change/correction/addition.
  • The deponent and JP sign each page of the affidavit.
  • On the jurat page place: "Resworn/Reaffirmed by the deponent at ..., on ...date, before me ...JP name, signature, seal, number.

QCAT Affidavits

The Queensland Civil and Administrative Tribunal (QCAT) has its own format for affidavits being presented to QCAT. The QCAT affidavit consists of four parts, Parts A through D inclusive. Part A contains the full names of the Applicant and the Respondent. If known the QCAT case number is entered in Part B. Parts C (Details of the Affidavit) and D (Signature) conform to the contents and layout of a generic affidavit. A Word document template for a QCAT Affidavit appears on their site. Note this is not a blank form and Word or an equivalent app must be used to produce the final affidavit to include the full name of the applicant and the numbered paragraphs/pages.

Divorce Application Affidavits

References

  • JP handbook Chapter 5
  • QJA Guide Chapter 13
  • Uniform Civil Procedures Rules 1999, S 430 to 436
  • Family Court of Australia, Federal Circuit Court of Australia, Fact Sheet, Preparing and Affidavit