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Amended Response to Initiating Application. Affidavit Requirments.

What must new affidavit be?

I want to file an "Amended Response to Initiating Application" hereafter referred to as "Amended Response".

The orders I seek in the "Amended Response" are polar opposite the orders I sought in the "Response to Initiating Application".      

My question is…

1. Does the affidavit I relied on to support "Response to Initiating Application", become invalid or obsolete, when I file an "Amended Response" and associated affidavit?

2. Would the old affidavit be usable or relevant in any proceedings in the future?

2. Can it be withdrawn?
jimbxb22 said
I want to file an "Amended Response to Initiating Application" hereafter referred to as "Amended Response".

The orders I seek in the "Amended Response" are polar opposite the orders I sought in the "Response to Initiating Application".      

My question is…

1. Does the affidavit I relied on to support "Response to Initiating Application", become invalid or obsolete, when I file an "Amended Response" and associated affidavit? …… Would the old affidavit be usable or relevant in any proceedings in the future?…. Can it be withdrawn?
Generally you would refer to relying on "My Affidavit filed on…."

The other side would most certainly use your earlier Affidavit if it contained contradictions to a later Affidavit. Since these are 'fact' documents that you have signed as 'true' any serious contradictions calls into doubt the accuracy of any facts in later Affidavits.
There are a number of issues to consider relating to Division 11.2.2 Amendment and Rules 11.10(1) through Rule 11.14

Firstly yes you may amend the application or response but only in a case started by an initiating application, up until the procedural hearing.. You will need to get court approval to do so after the first procedural hearing (rule11.10(1) ii)

The important issue is that if an amendment is made to either an initiating application or a response to an initiating application (Rule 11.10(2)) then Rule 11.10(3) applies. That is after the first court date the Registry Manager for that court must set down a date for a further procedural hearing. It is somewhat confusing because it appears the court may allow an amending response application (rule11.10(1) ii) and then in 11.10(2) suggests a further procedural hearing is required.

Rule 11.04 kicks in as well and you will need to give advice to the other party that such a hearing is set down.

Once that permission is give you have seven days to file the amendment. Regardless if you file and amendment you will need to ensure the other side has it as well. Rule 11.12 kicks in and the amendment must be clearly marked as Amendment and if the court has given permission then the date when the amendment was approved to be filed.

A word of caution. When you are amending the document you are supposed to amend it by (firstly following rule 11.12(2) ONLY. That is a line THROUGH the text to be changed and (b) underlining any new text or using a different type face to indicate clearly new text. There are different rules for amending financial statements. However I think you only have 14 days to amend the affected document.

A word of caution… DO NOT try and amend a document with frivolous, vexatious or immaterial issues as it wont go down well nor will it be accepted and could be thrown out by the other side which may be a problem if some of the material was required. Unless it is in affidavit form you cannot raise the issues although I have known some learned colleagues to pitch new material from the bench… Hopefully they were not before Federal Magistrate Halligan.

If in doubt call up the Registry and work through what exactly you are wanting to do… They will know what will be accepted.




Executive Secretary - Shared Parenting Council of Australia
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