Certified Copy of an Affidavit in Australia

A certified copy of an affidavit is a copy of an already-sworn affidavit, with all its exhibits, that someone has compared with the sworn original or a court-sealed copy. A Justice of the Peace can often certify it for Australian use; overseas use needs a notary, then DFAT. First check the recipient does not want a new sworn statement instead.

Key takeaways

• "A certified copy of your affidavit" and "a notarised affidavit" are different requests. One copies an old document; the other means swearing a new one.
• The exhibits are part of the affidavit. A copy without them is incomplete, unless the certificate says it copies the affidavit only.
• Bring the sworn original or a court-sealed copy. A draft, a scan or a JP copy is not an original.
• For a filed affidavit, a sealed copy from the court may be a better document than any certified copy, and may go to DFAT directly.
• Affidavits from some proceedings, family law matters in particular, may be restricted. Check with the lawyer who acted before sending one overseas.

Copy of a sworn affidavit, or a new sworn statement?

An affidavit that has already been sworn is a finished document. Getting a certified copy of it is a different act from swearing one, and it answers a different question. Two requests sound alike:

• "A certified copy of your affidavit." You already swore an affidavit, usually for Australian proceedings, and a foreign court, authority or lawyer wants to see it. Someone certifies a copy of that existing document.
• "An affidavit, notarised." The recipient wants you to swear a statement now, in front of a notary, for their purposes. That is covered in notarising an affidavit.

The difference matters. An affidavit sworn for a family law matter, a probate application or a commercial dispute was written for that proceeding, in that court's format, about the facts as they stood then. A foreign authority asking for evidence of something today usually wants a fresh statement addressed to it. Ask the recipient which it means, in writing, before booking. If the answer is a new statement, see powers of attorney and declarations.

Who can certify the copy?

A certified copy is a copy that someone authorised has compared with the original and signed to say it matches. Who counts as authorised is decided by whoever receives it.

Recipient	Usually accepts	JP enough?
An Australian court, in the same proceedings	Its own file; ask the registry for a sealed copy	Rarely relevant
An Australian agency, bank or lawyer	A copy certified by an authorised person	Usually
A foreign court, authority or lawyer	A notarised copy, or a court-sealed copy, often with an apostille	No
Anyone asking for "a notarised affidavit"	Probably a new sworn statement; ask	No

A Justice of the Peace can certify a copy for Australian use, free. For overseas use, a JP certification is not accepted and DFAT will not apostille it, so an Australian notary public certifies the copy instead and records the act in their register. You cannot certify a copy of your own affidavit.

Think about how many copies you need before you start. A foreign court, the lawyer acting there and a registry may each want their own set, and every set going overseas usually needs its own apostille. Making them all at one appointment, from the same original, keeps the sets identical, which matters when a foreign court compares what different parties filed. Keep one uncertified photocopy of everything for yourself, so you can answer questions about the set without unbinding it.

The exhibits are part of the affidavit

Affidavits routinely annex documents, such as contracts, emails, bank records and photographs, marked as exhibits and usually introduced by an exhibit cover sheet signed by the person who took the oath. The affidavit refers to them by their marks: "annexed and marked A is a copy of...". A copy of the affidavit without the exhibits is not a complete copy. A certifier certifies a copy as true and complete, so either:

• the whole document, affidavit and every exhibit, is copied and certified; or
• the certificate states clearly that it is a copy of the affidavit only, excluding the exhibits, or of specified pages.

The second is sometimes acceptable and sometimes not. A foreign court reading "see exhibit C" with no exhibit C attached will usually ask for it. Exhibits can be long, so bring everything and let the recipient's requirements decide what is copied, rather than trimming at home. A partial copy must never be described as complete.

Which document counts as the original?

The certifier must sight an original. With affidavits that is less obvious than it sounds.

• If the affidavit was filed in court, the court usually holds the filed version. What you have may be a copy stamped by the registry, or an unstamped copy. The court may be able to supply a sealed or certified copy from its file, and for some purposes that is a better document than any certified copy. Ask the registry.
• If the affidavit was never filed, the signed and sworn original may be with you or your lawyer.
• An unsigned version, such as the draft your lawyer emailed you or the file saved on your computer, is not the sworn affidavit.
• A copy already certified by a JP or anyone else is not an original, and a notary cannot certify a copy of it as if it were.

Court documents are on the Department of Foreign Affairs and Trade's list of documents it can legalise, so a court-sealed copy may be able to go to DFAT directly, with no notary. Confirm with DFAT before relying on that. For court documents in general, see court documents and notaries.

What the certification does not say

Certifying the copy says the copy matches the document produced. It says nothing about whether the facts in the affidavit are true, whether it was validly sworn or by whom, or whether a court accepted, relied on or filed it. A notary never certifies that a document's contents are true. If the recipient needs proof that the affidavit was filed or used in proceedings, that comes from the court, not the certifier.

Are you allowed to send it?

Affidavits from some proceedings, family law matters in particular, can be subject to restrictions on who may see them or how they may be used outside the case. The rules vary with the kind of proceeding and the orders made, and a notary will not usually be in a position to advise on them. If the affidavit was sworn in court proceedings, check with the lawyer who acted, or get your own legal advice, before sending a copy overseas. This is the step people skip, and it is the one that can cause real trouble.

At the appointment

1. Bring the sworn original or court-sealed copy, with all exhibits and cover sheets, and your photo identification.
2. The notary sights the original, copies every page, and checks the exhibits against the affidavit's references.
3. The notarial certificate describes exactly what was copied: the whole document, or the affidavit without exhibits, or specified pages.
4. The copy is bound to the certificate so pages cannot be added or removed without it showing.

If your lawyer holds the original, they may prefer to bring it to the notary themselves rather than post it. What matters is that the notary sights the original itself. For the service, see document notarisation.

Overseas use: apostille and translation

If the destination is a member of the Hague Apostille Convention, DFAT issues an apostille on the notarial certificate, or on a court-sealed copy if DFAT accepts it directly. For a non-member, DFAT issues an authentication certificate and the destination's embassy or consulate then legalises it. Check membership on the HCCH status table on the day. Only DFAT issues apostilles; see apostille and authentication.

A certified translation is normally bound in where the recipient does not work in English. For an affidavit with long exhibits, ask whether the recipient needs everything translated or only the affidavit itself, because it changes the size of the job considerably. See document translation.

Here is an illustration, not a real case

A man in Sydney swore an affidavit with twelve exhibits in an estate dispute two years ago. A lawyer overseas handling a related property matter asks for "a certified copy of your affidavit". He first confirms in writing that the lawyer wants the existing affidavit, not a new statement, and checks with his Australian solicitor that nothing restricts sending it. The affidavit was filed, so he asks the court registry for a sealed copy, then asks DFAT whether it will apostille that directly. It will, so no notary is needed.

In short

A certified copy of an affidavit copies a sworn document; it is not a new sworn statement, so confirm which the recipient wants. Bring the sworn original or a court-sealed copy, with every exhibit and cover sheet, and make sure the certificate describes exactly what was copied. A JP is fine for Australian use; overseas use needs a notary or a court-sealed copy, then DFAT. Check with a lawyer before sending an affidavit from court proceedings abroad.

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Asked for a certified copy of an affidavit? Send us the recipient's request, and we will explain each step before you book.