Documents to be used in conjunction with affidavits
As of 1 March 2018, in the Family Court, a document that is to be used in conjunction with an affidavit and tendered in evidence in a court proceeding, must be identified in the affidavit but must not be attached to or annexed to the affidavit, or filed as an exhibit to the affidavit.
There may be exceptions where court orders or the Rules provide otherwise: for example r 15.62 in relation to expert reports.
Any document referred to in the affidavit must be served with the affidavit on the other parties after filing. The document must then be tendered in evidence at the court event when the relevant affidavit is relied upon or as required: r 15.08(2)
While as of 1 March 2018, the Family Law Rules have changed, providing for annexures not to be attached to affidavits: r 15.08, in matters in the Family Court, the Federal Circuit Court continues to permit annexures to be attached. Given the majority of matters are filed in the Federal Circuit Court, not the Family Court, in practice the norm will continue to be that relevant annexures are attached to affidavits.
Undertakings
Rule 17.06 has been added, relating to undertakings. The rule sets out the form of undertakings and, in summary provides:
- Undertakings may be given orally or in writing.
- If they are in writing, it must be signed and filed.
- If they are given orally, a written record must be made, signed, filed and served.
- A definition of undertakings as to damages.
We have updated our Property Settlement and Children commentaries accordingly.