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Can I object that an affidavit be allowed in a FCoA final hearing?

Hi All,

I have noticed that a number of affidavits produced by my ex-partner and members of her family were sworn by Justice of the Peace (JP) parties only.

Somehow though, I cannot see any references to their identification as a JP on the affidavits which were produced.

I accessed the following URL and did a search on the names but the search against all names searched returned no results (ie. the names I put in were apparently not registered as JP's):

http://jp.lawlink.nsw.gov.au/public/welcomePublic.do

I searched the Internet and came across the following URL describing the guidelines for JP's:

http://www.lawlink.nsw.gov.au/lawlink/cru/ll_cru.nsf/pages/cru_jp_guidelines

I am of the understanding that JP's are complelled by law to include their identification (eg. include "JP" followed by a number) next to their name and signature. Otherwise, the document that they signed can be invalidated completely in a court of law in Australia.

1. Is this the case?

2. Can a JP simply not put his/her ID when swearing in or witnessing an affidavit?

3. Has there ever been a precedent set in that respect? If yes, what case was it?

Many Thanks,

JB
Did you use this site (link provided) to check the JP's name. Are they a JP or other?

http://jp.lawlink.nsw.gov.au/public/welcomePublic.do

If you can not find the JP registered with the AG then yes you can challenge the validity of the document if the witness was not an other authorised witness.

That means at the right time when you are in the Court you can object, or make a procedural application to challenge the document to stop the Court relying on the affidavit before you go to Court if there is no Court date set, as you have doubts that the affidavit is a properly sworn affidavit.

This would be on grounds that it is your understanding after making enquires the witness of the affidavit is not authorised to be a proper witness.

That is the witness is not listed as JP, Lawyer, and is not a Notary member of the public (usually Doctors, Teachers Chemists and the like) check out this Notary Locator site; http://www.notarylocator.com.au/

When making an objection to something you need to have good reason and grounds or you could fall foul of the Court.

Are any statements in the affidavit untrue if not there is no point objecting to it document unless it is to prove ongoing Contempt of the Court process, therefore other Contempts like false evidence would be provable.
In QLD, we have had notaries of the public refuse to sign our court documents.

We have also had documents refused from the Brisbane Registry, because the JP at the adjacent Brisbane court house used the wrong stamp! Apparently, he additionally needed his commisioner of declarations (?) stamp.

With JPs, they will mostly have 2 stamps. 1 stamp with their name and a line for their signature and another that has their JP number. In long affidavits, this saves a lot of hassle. They can use one but then have to write their JP number.

Hope this helps.

NJ makes some good points. There is little point making a fuss about a document if the contents are valid and FMs can get very tetchy about that sort of attitude.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Yes, I have heard Qld can be black letter (hard and fast) on the Law down to the right colour of the pen used.

FamCA in Vic is usually not so strict and there are different guidelines in each State even though it is a Commonwealth Court.

Some JPs have stamps here too, but usually only one starting with their printed name then address for contact.

Note the FamCA affidavit only requires a tick in the box for the authority that the witness is exercising, no number or address.

It makes it hard to qualify the witnesses authority hence as I said why bother if the affidavit is true and correct.

Yes, I checked the JP's details ...

Hi there,

First of all, I did check that the JP who witnessed the affidavit was no longer an active JP by sending a scanned copy of the last page of the affidavit to jp@agd.nsw.gov.au and then requesting confirmation by return email. I also spoke to the person from the Attoney's General Office who responded to my email and he verbally confirmed that the person who witnessed the affidavit was no longer a JP. Apparently, in the past in NSW, when JPs were sworn in, they were sworn in as JPs for life. The law changed in early Dec 2002 and all JPs were required to resign some documents to request that their JP status are maintained. Most did it but some didn't. By law, they automatically no longer had a JP status. Those who resigned the documents had a registration number assigned along with instructions on what to do when signing official documents. I then asked the person from the AGD whether the affidavit was 'official' and I was told that it was NOT an official document by law.

Secondly, the contents of the affidavit and the conduct of the medical expert in question are currently subject to an investigation by the Health Care Complaints Commission (HCCC) as the affidavit contents were written by a medical expert. Anyway, it's too long a story to mention on this public forum. Bottom line, I want to challenge the contents of the affidavit as being untrue, to challenge the authority of the witness to swear the affidavit and prove that the medical expert acted in a way unbecoming of a member of his profession (as written in a Magellan Report which the FCoA also has in its possession) in order to invalidate the entire affidavit on the 1st day of the court hearing.

Anyway, I appreciate your comments very much and any advice would be most welcome …

Cheers,

JB

Probably wasting yuor time

Trying to challenge the admissability of the affidavit is probably a waste of time. Time which could be much better used to challenge the validity of the evidence contained in the affidavit.

In the unlikely event that the court did reject the affidavit because it was incorrectly witnessed, the most likely scenario is the court would order it rewitnessed and refiled, causing a delay. In truth that could be a simple as adjorning for half an hour while the witness found a JP, probably one in the court anyway, and had the document re-signed. Or the judge could simply ask the witness to take the oath then ask if the information in the affidavit is true and accurate! The judge (or magistrate) certainly has the power to admit any evidence in any form they chose. The family law specificaly says the court can decide to what extent the evidence act applies, and the court rules specificaly state the rules do not apply if the judge decides the rules do not apply!


For me - Shared Parenting is a Reality - Maybe it can be for you too!
jbmj007 said
I want to challenge the contents of the affidavit as being untrue, to challenge the authority of the witness to swear the affidavit and prove that the medical expert acted in a way unbecoming of a member of his profession (as written in a Magellan Report which the FCoA also has in its possession) in order to invalidate the entire affidavit on the 1st day of the court hearing.
Does "I want to challenge the contents of the affidavit as being untrue," mean the contents are untrue or you are just not happy with the contents? Untrue Yes or No.

A lack of authority to witness the swearing of a document does not make an ability to challenge the contents of the document, only an ability denial of an ability to rely on the document it self.

It is not the witness who is swearing the affidavit, it is the Medical Expert. The witness is acting, on this occasion without authority by technicality, the witnessing of the swearing by the Expert thereby makes the document unusable.

If the Medical Expert in good faith believed the witness was properly authorised to witness the document then there was no impropriety on behalf of the Expert, only a mistaken authority of the witness.

This then would cause the Expert to have the affidavit re-sworn in front of a properly authorised witness, causing a delay of reliance but not removal of the evidence.

The only thing you could use to demonstrate an appropriate challenge to the evidence of the Expert is if the Expert made assumptions of fact or opinion without proper evidence to support those assumptions. Impropriety would require opinion or can to fact in contradiction to the evidence within the Experts knowledge or hands.

As I have said before if the Expert evidence is proper and just, you will do more harm than good seeking to disqualify evidence on a technicality.

Does the Magellan Report support the Expert opinion or not? If it does don't challenge it work around it, make use of it by following the recommendations and do things to disprove their belief of you and your behaviour.

That does not mean call their opinion false, it is their opinion and they are entitled to it.

If the Experts evidence is not in your favour, you need to make their opinion irrelevant by causing their opinion to be out of date and providing proper evidence their opinion is flawed.

You would be better off urgently doing things and courses that will contradict the Expert evidence by showing the opinion of the Expert is no longer relevant due to your willingness to improve in the areas identified that you are weak or lacking in.

Take it from 1 that learnt the hard way, when I challenged the Experts evidence the Judge did not want to hear it. The Judge prevented any more school holiday contact, is this the type of outcome you are looking for?

If you are not, and not enrolled in a course, enrol in a course NOW that will make the Experts evidence out of date, you are more likely to get the sympathy of the Court and they grant an extension for the hearing to be heard after you complete the course.

This would appease the Court and demonstrate you are willing to learn, trying to be the best parent you can be and putting the "Best Interest of the Children" before your wants and hurts.

Medical Expert vs Medical Expert

It sounds like the medical expert is the issue or the story they are telling.

I had this experience.

They are considered 'experts'. The only way to counter them is have your own 'experts'. I failed because I did not provide an expert to refute what her expert said - I provided my own research and public information - I relied on common sense of the judge. Unfortunately they are unable to have common sense - they need evidence from experts. That was one of my mistakes.

So if you are to challenge the story of an expert you have to get your own expert. This may require asking the judge to have an order made for people to be examined (which you can do) by your own doctor. This will cost money.

Doctors like money just as much as lawyers.

You may need an expert who is higher ranked.

Good luck.

 Maybe I am not explaining myself well enough
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