Evidence - Federal Circuit and Family Court

Evidence in the Federal Circuit and Family Court of Australia is usually given by affidavit. An affidavit is a written statement that is sworn or affirmed to be true. The Judge in charge of your case may have made orders that:

• you prepare affidavits, then file and serve them on (give them to) your employer (the respondent)
• the respondent prepare affidavits, then file and serve them on you
• you prepare affidavits in response to the respondent's affidavits, then file and serve them on the respondent. 

 Before preparing an affidavit, you should get legal advice. 

Where can I get a blank affidavit form?

You can get a copy of a blank affidavit form from the:

• registry of the Court that is hearing your case, or
• General federal law forms page on the Federal Circuit and Family Court of Australia website.

Instructions: Instructions - Affidavit 

Sample:  Sample affidavit 

What should I put in an affidavit?

Before you start writing your Affidavit, you may want to plan:

• what information you will include
• what documents you will include
• how your Affidavit will be structured.

It is important that your Affidavit is easy to read so the court can understand what you are trying to say. To do this:

• write in chronological order (the order in which things occurred)
• divide your Affidavit by topics using headings
• keep it brief
• remember who you are writing to - the court has no personal knowledge of your relationship so you must tell them all of the facts.

You should only include information that you have direct knowledge of. A person has direct knowledge of something if they saw or heard it or otherwise witnessed it.

You should only include information that is relevant to the orders you want the court to make. The court can’t consider irrelevant or unnecessary information. If you include too much irrelevant or unnecessary information in your Affidavit, the court may refuse to read it.

Your affidavit should not include:

• your personal opinion, for example, ‘I could tell he wanted to get rid of me’
• hearsay evidence - evidence of what someone else saw, heard, or otherwise witnessed, for example, ‘Jane told me what our boss had been saying about me’
• hypothetical statements, for example, ‘If I hadn’t been so good at my job he wouldn’t have fired me’
• generalisations, for example, ‘All bosses are mean’
• offensive comments, for example, ‘my employer was a bastard’
• submissions, for example, ‘The court can be satisfied that I was dismissed in breach of a general protection’
• legal advice you have received
• your interpretation of the law.

How should I set out an affidavit?

When you are preparing your Affidavit, you must:

• use plain language
• write in the first person
• only state the facts
• be specific - use dates, times, amounts, locations and names where possible
• refer to any conversations using the actual words spoken, for example, I said to Jane words to the effect, “That’s fine.”
• separate each topic using headings
• include only one issue per paragraph
• number each paragraph
• number each page consecutively, including any annexures.

Don’t include any information or documents that suggest or prove you have committed a criminal offence. This can be used as evidence against you later if you are charged. If you are not sure what to include, you should get legal advice.

Formatting

Your Affidavit should be:

• double spaced
• left aligned
• size 12 font
• in an easy to read font, for example Arial or Calibri
• written in English.

Don’t sign your Affidavit until you are ready to have it witnessed.

How do I include a document or an object?

If you want to include a document or object as part of your evidence, you can 'annex' or 'exhibit' it to your affidavit. Annex means to attach it to the back of the affidavit, and then it becomes an 'annexure'. An exhibit is referred to in the affidavit but is not attached to the affidavit. Annexures are used for smaller documents while exhibits can be used for larger groups of documents and objects.

To annex documents to your Affidavit:

• refer to each of the documents in the text of your Affidavit - if there is more than one document, give it a number or letter, for example ‘Annexure 1’
• attach the documents to the back of your Affidavit in the order that they are mentioned in your Affidavit
• create a cover page for each document, with the statement:

‘This is the document referred to as Annexure [insert reference number] in the Affidavit of [insert deponent’s name], sworn/affirmed at [insert place] on [insert date] before me [authorised person to sign and provide name and qualification].’

• continue the page numbering in your Affidavit across all annexures.

Make sure the documents you attach to your Affidavit are clear and easy to read. If they are not, the court may not consider them, or they may ask you to provide another copy.

Don’t include original documents in your Affidavit - only attach photocopies. The documents you file become the courts property. You will not be able to get them back once your case in finished.

Can I include evidence of conversations?

You can include evidence of conversations if they are relevant. Affidavits should be written in the first person (from the point of view of the person making the affidavit) and using the word 'I'. If the affidavit refers to a conversation, you should write down the exact words used by the people in the conversation.

Signing and witnessing an affidavit

Once you have finished your affidavit, you need to sign it in front of a witness. The witness should be either a lawyer or a Justice of the Peace.

You must swear (religious oath) or affirm (non-religious oath) that the contents of your Affidavit are true.

You and the witness should sign every page, including the last page.

To fix any error(s) in your Affidavit, cross out the error(s) and write your initials next to your change(s). The person witnessing your Affidavit must also write their initials next to each change.

For more information about where to find a Justice of the Peace, see Finding a JP on the Department of Communities and Justice website.

 If you are unsure what to write in an Affidavit, or what documents to attach, you should get legal advice.

The respondent's affidavits will be similar to yours. The first page will have the same details about the registry, case number and parties. It will have different details at the bottom of the first page because it will be filed on behalf of, and prepared by, different parties.

Because the respondent's affidavits are usually written after having read yours, they may refer to sections of your affidavits. For example, if an affidavit was being written by Gary Irons in response to the sample above, the other person involved in that conversation, it might say:

4. I refer to the affidavit made by Erich Johansson on 8 August 2012 ('the Johansson affidavit') and I deny I had a conversation with Eric Johansson on 27 July 2012 as described in paragraph 10 or at all. 

5. I deny I said the words in paragraph 11 of the Johansson affidavit.

6. On 27 July 2012, Erich Johansson and I had a conversation with words to the effect:  I said: "Erich we have to let you go." 

He said: "Why what did I do wrong?" 

I said: "You've been warned in the past that if you keep turning up to work late that we would terminate your employment. You are supposed to start at 7.30am each morning that you are at work. You consistently turn up at 8am. You didn't turn up until 8am this morning. We can't have our workers turning up late. I'm sorry Erich but you have to pack up your things and finish today. We'll pay you out two weeks wages in lieu of notice, plus any holiday time owing." 

He said: "Oh.'   

The Judge may make an order about you filing and serving affidavit evidence in reply to the respondent's affidavits. If there is anything raised in the respondent's affidavits you don't agree with, you can prepare affidavits to specifically address those parts.

Continuing with the example above, the applicant may write an affidavit in reply to the affidavit of Gary Irons. It might say:

4. ​I refer to the affidavit made by Gary Irons on 17 August 2012 ('the Irons affidavit'). I deny that the conversation between Gary Irons and I took place as described in paragraph 6. I deny that Gary Irons ever warned me for arriving late at work.

5. It was my understanding from the first day I worked at Steelrod Pty Ltd that on any day that I worked my hours would be from 8am to 5pm, with an hour for lunch from 1pm to 2pm. 

6. From the first day to the last day I worked at Steelrod Pty Ltd I never arrived at work any earlier than 7.55am. I was never told by Gary Irons, Rod Steel or anyone else that I was late, and I was never told that I must start at 7.30am.​​

You can get a blank subpoena from the:

• registry of the Court that is hearing your case, or
• General federal law forms page on the Federal Circuit and Family Court of Australia website.

At the bottom of each subpoena you need to fill out the box with the details of:

• which party the subpoena was filed for
• who prepared it
• details of that party's lawyer (if they have one).

The second page will have the details of the order to attend and/or to produce documents, including the time, date and place the witness must attend or produce documents. There are three parts. Which part you use will depend on the type of subpoena you want to serve.

• Part A is used where you just want a witness to give evidence
• Part B is used where you want the witness to give evidence and produce documents
• Part C is used where you just want documents produced.

You can cross out the two parts you don't want to use, and fill in the details of the part you do want to use.

The third page will list the documents and items that need to be produced under the subpoena.

You need to be clear about what documents you want. If you are too vague, the Court might order that the subpoena doesn't have to be complied with.

Instructions : Instructions for completing a subpoena

Sample: Sample subpoena

The subpoena must be served on (given to) the person it is addressed to on or before last date for service.

A person doesn’t need to comply with a subpoena if it is served out of time.

You can pay for a professional process server to serve the subpoena or do it yourself. 

You can serve a subpoena by:

• handing it to the person it is addressed to 
• emailing it to them, or 
• posting or faxing it to their residential address. 

When you serve the subpoena you must also give the person or organisation you are serving with the subpoena some money, called 'conduct money'.

The amount should be at least $25. This must be enough to cover the cost of travelling to and from the court or the cost of looking for, photocopying and sending the documents to the court. 

The conduct money can be paid by cash, bank cheques, or money transferred electronically, through online banking or other digital payment methods. Prepaid travel options, such as petrol vouchers, may also count as conduct money.

The recipient doesn’t have to comply with a subpoena unless they are given or offered conduct money  a reasonable time before they need to attend court. You may be ordered by the court to pay the amount requested by the person subpoenaed. 

 Before you serve your subpoena, you should contact the subpoenaed person to find out how much conduct money they will require to comply with the subpoena. 

You should make sure you give the person the extra pages that are attached to the back of the subpoena when you serve it, including:

• notes relating to the subpoena
• a Notice of Objection form.

You can leave the Notice of Objection form blank.

A Notice of Objection can be filed by the person who is served with the subpoena if they object to the subpoena for any reason. Once a Notice of Objection is filed, the Court will list the objection for hearing. If a person or company you subpoenaed has filed a Notice of Objection, you should get legal advice.