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Solicitor Writes Affidavit for Client - any significance

Contravention case - Applicant asking for proceedings to be moved to another court because not happoy with date given by FM

I am in the middle of a contravention case against me.  It was brought to the court in Jan 2011 and after several court appearances and child dispute conference FM held off next hearing until Dec 2012 (to wait for new circumstances).  I have received an application in a case to move proceedings to another court because the Applicant is concerned at it being so far away and for a number of other unsubstantiated and easily dismissed reasons.

The Applicant's solicitor wrote the Affidavit and writes over and over 'My client is concerned …..'  'My client ……'.

I have never come across and affidavit written by the solicitor for his client before and my question is whether this is signficant and how I should deal with it.  I am an SRL.  I am not too worried about the proceedings being moved to another part of the city although the reasons cited are ridiculous.  I also need to check whether it will have to start right back at the beginning again somewhere else which makes it even more ridiculous.

I think that it may be because the Applicant didnt like what the FM said in court and how he is handling it, but that is only an opinion.

The solicitor is a particularly difficult one who is very aggressive and not giving his client good advice.

If anyone has any advice for me I would appreciate it.

thanks

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
The only affidavit's I have seen where someone has had *assistance* from a solicitor, were written in first person language. I don't think there is any hard and fast rule that they have to be though, I think it's just a general guideline that is followed.

It is legal for a 3rd party to wholly prepare and write an affidavit on some else behalf, however the person preparing it must acknowledge they were the ones that prepared and wrote it. In those circumstances, perhaps fist person language may not be the norm or appropriate but I am just guessing.

Maybe your ex didn't have an actual input into the affidavit and just told the solicitor to write what he thought was appropriate. I don't see the harm in querying at the next hearing whether or not your ex's views are truly reflected in his affidavit. Although if your ex has read and signed it, presumably they are.
The Affidavit is not signed by my ex, only by the solicitor.  He says he is the lawyer for ….. and my client has expressed concern about ….. the applicant instructs me …..

I will take your advice and ask about whether they are my exes views.  I have also heard that if a solicitor says in court 'my client wishes' 'or my client something or other' it can be 'code' for showing that the solicitor doesn't agree with the client.  Although I have only heard that from one or two people.  I wondered if this might be to do with that but probably not.

It is a bit difficult to understand why he did it this way.  He does live on the other side of the country but has done his own affidavits before now.  It could also be because he will not be in court but be represented by the lawyer.  It just seems rather strange.  I didn't know if I need to handle it in a particular manner.


anyway, I don't have that long to wait and see as it is on the duty list for mid March.

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
FEDERAL MAGISTRATES COURT RULES 2001RULE 15.26 MAKING AN AFFIDAVIT

Commentary on 15.26

15.26(1) [Each page signed]

The person making the affidavit must sign each page of the affidavit.

Note For the persons before whom an affidavit may be made: see section 59 of the Act.


15.26(2) [Inclusions in jurat]

The affidavit must:

(a) contain a jurat including:

(i) the full name of the person making the affidavit; and

(ii) whether the affidavit is sworn or affirmed; and

(iii) the day and place the person makes the affidavit; and

(iv) the full name and capacity of the person before whom the affidavit is made; and

(b) be signed by the person making the affidavit in the presence of the person before whom it is made; and


(c ) then be signed by the person before whom it is made.

Note A jurat is a clause placed at the end of an affidavit stating the time, place and officer before whom the affidavit is made.

    
15.26(3) [Alterations]

Any interlineation, erasure or other alteration in the affidavit must be initialled by the person making the affidavit and the person before whom the affidavit is made.

The affidavit will be signed by the solicitor as "I affirm or swear"

I have done a fairly extensive search through the FM's Handbook and cannot see any particular issue. It is unusual

I also bring to attention

RULE 15.27 AFFIDAVIT OF ILLITERATE OR VISION IMPAIRED PERSON ETC

Commentary on 15.27

    
15.27(1) If the person making an affidavit is unable to read, or is physically incapable of signing it, the person before whom the affidavit is made must certify in or below the jurat that:

 
(a) the affidavit was read to the person making it; and

(b) the person seemed to understand the affidavit; and

(c ) in the case of a person physically incapable of signing, the person indicated that the contents were true.

History

R 15.27(1) amended by No 215 of 2008, Sch 1[21], commenced 30 October 2008.

15.27(1A) Subrule (1) does not apply if the person making the affidavit has read the affidavit using:

(a) a computer with a screen reader, text-to-speech software or a braille display; or

(b) other technology for the vision impaired.

History

R 15.27(1A) inserted by No 215 of 2008, Sch 1[22], commenced 30 October 2008.

15.27(2) If the person making an affidavit does not have an adequate command of English:

(a) a translation of the affidavit and oath or affirmation must be read or given in writing to the person in a language that the person understands; and

(b) the translator must certify in or below the jurat that he or she has done so.


15.27(3) If an affidavit is made by a person who is incapable of reading it or incapable of signing it and a certificate under subrule (1) or (2) does not appear on the affidavit, it may not be used in a proceeding unless the Court or a Registrar is satisfied that:

(a) the affidavit was read, or if appropriate a translation read or given in writing, to the person; and

(b) the person seemed to understand the affidavit; and

( c) in the case of a person physically incapable of signing  the person indicated that the contents were true.

History

R 15.27 heading substituted by No 215 of 2008, Sch 1[20], commenced 30 October 2008.

AND
RULE 15.08 FORM OF AFFIDAVIT

15.08 An affidavit must:

(a) be divided into consecutively numbered paragraphs, with each paragraph being, as far as possible, confined to a distinct part of the subject matter;

(b) state, at the beginning of the first page:
(i) the file number of the case for which the affidavit is sworn;
(ii) the full name of the party on whose behalf the affidavit is filed; and
(iii) the full name of the deponent;

(c ) have a statement at the end specifying:
(i) the name of the witness before whom the affidavit is sworn and signed; and
(ii) the date when, and the place where, the affidavit is sworn and signed; and   

(d ) bear the name of the person who prepared the affidavit.

Note An affidavit must comply with subrule 24.01(1), including being legibly printed by machine.

Executive Secretary - Shared Parenting Council of Australia
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Thank you Secretary for your time and the information you provided. 

There is no issue with the Affidavit as such, it follows all the rules, it is as you say unusual for the solicitor to make it on behalf of the Applicant with no good reason.

I will have to wait and see how it unfolds.  I have a very good response ready which shows the Applicant in an even poorer light that he has already put himself in past court appearances so I am not concerned about the outcome.  I just wondered how I should deal with it in court.  I may see if I can find a duty solicitor to help me on the day.

Any other advice would be appreciated though. 

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
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