Interim Hearing Affidavits

Interim Hearings in the Federal Circuit Court & Affidavits 

This information sheet applies to Interim Hearings in the Federal Circuit Court of Australia including Affidavits for those Interim Hearings as from 1 January 2018.  Different Rules apply to Affidavits in the Family Court of Australia or the Family Court of Western Australia. You need to make sure that you comply with the Practice Direction setting out the management of Interim Proceedings in Family Law matters in the Federal Circuit Court.

The following rules apply to Interim Hearings whether Interim Orders are sought at the time the Initiating Affidavit is filed, or during the course of a matter if an Application in a Case is filed.

You should double check your Affidavit and make sure you are aware of and comply with all of the following:

 

 

• Pursuant to Section 51 of the Federal Circuit Court of Australia Act 1999 the Court directs that, unless specific express leave is granted by the Judge into whose docket the matter has been allocated, Affidavit material in support of an Interim Application must not:
  • exceed 10 pages in length for each Affidavit; and
  • contain more than five (5) Annexures. This is 5 separate Annexures referred to in the Affidavit, not 5 pages of Annexures.  One of the Annexures may for example be 2 or 3 pages in length, say for example a school record or medical report.
• Any Interim Hearing will be conducted as an abridged process with a circumscribed scope of inquiry.
• The Judge will determine whether he or she deals with all or part of the Application and/or the Response as filed.
• The relevant facts to be relied on by a party at an interim hearing must be set out succinctly in their Affidavit material complying with the limits of 10 pages and 5 annexures. Division 15.4 of the Federal Circuit Court Rules 2001 sets out the rules in relation to Affidavits.
• If a Respondent seeks Interim Orders additional to those sought by the Applicant and the Applicant opposes the Orders sought, the Applicant may file a second Affidavit in answer (complying with the Rule relating to 10 pages and 5 annexures) and setting out:
  • any additional Orders sought;
  • any additional relevant facts relied on in opposition to the Orders sought by the Respondent.
• Failure to Comply with Interim Hearing Rules & Practice Direction
  • Parties and Legal Practitioners should expect that failure to comply with any part of the Practice Direction may result in loss of hearing priority, or an adjournment of an interim hearing with costs orders.
  • If a Party tries to rely on an Affidavit which does not comply with the 10 page and 5 annexure limit, then:
    • In the discretion of the Judge,
      • non complying Affidavits will not be read by the Judge; or
      • the responsible party will be required to select 10 pages out of their non complying material that they seek to rely upon;
    • Specific costs orders may be made.
  • Documents filed less than 48 hours prior to the hearing (electronically in the comcourts portal or otherwise)(“a late document”) cannot be relied upon at the hearing without leave of the Court.  A party or practitioner seeking to rely upon a later document must seek leave to tender a copy of it at the commencement of the hearing.
• The Judge determines whether to conduct an Interim Hearing either on the first return date of an Initiating Application, or Application in a Case, during the course of the matter if an issue arrives that needs adjudication by a Interim Hearing, or in an urgent case, a Registrar may list the matter for an Interim Hearing when the urgent Initiating Application is filed in Court.

The stated objective of these changes is so as to simplify procedures to the greatest possible extent, whilst identifying the issues in dispute requiring a decision of the Court and for the efficient use of Judicial resources.

These requirements for Affidavits for Interim Hearings are set out in Practice Direction No. 2 of 2017 Interim Family Law Proceedings (from 1 January 2018) and can also be found on the Court’s website.

Affidavits – More Information

If you want the court to read any letters, reports or other documents you have then you need to attach those documents to your affidavit however as detailed above in the Federal Circuit Court you are limited to 5 separate Annexures. You can read how to annex a document to an Affidavit in our information sheet What are the requirements to attach documents (annexures) to affidavits.

Many people do not know whether they should be swearing their affidavit on oath or affirming their affidavit. We explain the difference in the information sheet Do you swear or affirm your Affidavit.

If your matter is in the Family Court of Australia then you need to read about the different Rules which apply to Affidavits in the Family Court of Australia.

You should also read our Information Sheet with tips on how to prepare a good Affidavit in a Family Law matter.

We also have an Information Sheet about the different types of Affidavits and when they are used.

 

  Connect with us on Facebook