In Family Court proceedings, each party is required to file at least one statement of facts setting out the evidence they rely upon in support of the relief they are seeking from the Court. These statements of fact are known as Affidavits. A party may also be required to file Affidavits from each of the witnesses they intend to rely upon.
Until recently parties were generally able to attach as many documents as they wished to their Affidavits. In many instances this resulted in unnecessarily long Affidavits where some or all of the attachments were not relevant to the proceedings. This was causing problems for the Court and the parties, including wasting the time of the Judicial Officers.
The Family Law Rules 2004 (Cth) relating to the requirements for the filing of Affidavits have now been amended to prohibit the attachment of documents to Affidavits. These amendments apply to everywhere in Australia, except in Western Australia. The Family Court of Western Australia has not adopted those amendments and they do not apply.
The Family Court of Western Australia has not prohibited the attachment of documents to Affidavits but instead put in place restrictions on the amount of documents that may be attached to Affidavits. Chief Judge Thackray made Practice Directions as follows, in summary:
If documents are sought to be used in conjunction with an Affidavit in support of an application for an interim or procedural order:
- no more than five documents are to be attached to an Affidavit of a party; and;
- no more than two documents are to be attached to an Affidavit of a witness.
If documents are sought to be used in conjunction with an Affidavit to be relied upon at trial:
- no more than 15 documents are to be attached to the Affidavit of a party; and
- no more than five documents are to be attached to an Affidavit of a witness.
More documents than prescribed
If a party seeks to rely at the hearing/trial on more documents than the number prescribed above:
- each additional document must be identified in, but not attached to, the Affidavit; and
- if the document is in the possession of the party on whose behalf the Affidavit is filed, a copy must be served at the same time as the Affidavit is served.
Applications to rely on more documents than the number prescribed above will only be considered at the hearing/trial and only if there has been compliance with the Practice Direction.
All pages of Affidavits must be numbered consecutively, beginning with the first page of the Affidavit and concluding with the last page of any document/s attached.
- All references in the Practice Direction to documents being attached to an affidavit are to be taken as including documents being annexed to an affidavit or filed as an exhibit to an affidavit.
- The Practice Direction:
- is subject to any Order to the contrary; and
- came into effect on 2 July 2018.
If you are involved in Family Court proceedings, it is prudent to consider having a Lawyer prepare your Affidavits as their content and form may play a large role in the determination of those proceedings.