How to prepare for the first procedural hearing before the judge
Both parties must finalise the Balance Sheet and comply with any other orders made by the registrar at the procedural hearing.
How is the case prepared for the trial?
The judge manages the preparation for trial, conducting the following events:
- First procedural hearing before the judge
- Further days before the judge.
The judge determines the issues in dispute and decides what evidence is required to decide those issues including any expert reports.
The registrar may deal with aspects of the preparation for the trial including reviewing the following matters:
- Review compliance with orders
The parties must obtain expert reports and prepare their evidence as ordered by the Court.
What happens at a trial?
The trial, also known as the final hearing, is a hearing before a judge in a courtroom. The judge conducts the trial and makes a decision about your case (makes orders).
Getting ready for the trial
The court will make orders at or after the first procedural hearing before the judge. These may include both the applicant and the respondent needing to:
- file affidavits of their evidence and that of any witnesses as directed by the judge
- obtain and file any expert reports directed by the judge
- file any other document directed by the judge
How can you present your case to the Court?
At the trial, the Court will need to know the final outcome you want and the facts you are relying on.
You will have told the Court what you wanted when you filed (or responded to) the original or amended Initiating Application. The facts you are relying on to support your case are set out in your affidavit, and in the affidavits of your witnesses. See the fact sheet Preparing an affidavit.
See ‘What will happen in the trial’ below for an outline of the stages in the trial.
Tips and hints
The following hints may help you prepare for the actual day in court:
- Make sure your witnesses know when and where to come to court.
- Read the trial plan and make sure you understand what will happen.
- Read all the affidavits from your case and the other party’s case to make sure you are familiar with the evidence.
- Prepare questions if you want to cross-examine any of the witnesses.
- Consider making an opening explanation (address) to the Court.
- If possible, visit a family law registry (office) to watch the proceedings in another case
What can you do if someone won't come to court?
If you want to call someone to be a witness for your case, but that person will not agree to come to the trial, you may ask the Court to issue a subpoena. A subpoena can be used to get a person to give evidence (tell the facts) to the Court, or bring documents to the trial. To apply for a subpoena, use the Court's Subpoena form.
If you do not have a lawyer, you need to request the Court’s to issue a subpoena. You do so by writing a letter to the Court, stating why you seek the issue of the subpoena and what relevance it has in the case. You should raise the issue of requiring a subpoena at the procedural hearings before the judge or registrar.
See the brochure Subpoena: Information for a person requesting issue of a subpoena.
Adjournment of the trial
If you seek to adjourn a trial you need to file the form an Application in a Case well before the date on which the trial is due to start, and an affidavit setting out the facts as to why the adjournment is sought. The documents must be served on all parties.
Generally trials will not be adjourned unless unforeseen or exceptional circumstances arise. If an adjournment is granted the person who asked for it may be ordered to pay the other person's costs.
The table outlines the basic stages of the trial. If you are not sure, you should ask the judge what is happening. Some of the terms are explained in the table below.
What to expect
At the beginning of the trial the judge will usually take objections. This means listening to each party as they point out any parts of the other party's affidavits that they say are inadmissible based on the rules of evidence. The judge then rules whether it is acceptable as evidence.
The applicant's evidence
The respondent's evidence
The respondent presents their case using the same process as the applicant in steps 1-6.
Next stage (optional)
The applicant may respond to the case of the respondent with a case in reply.
Any single expert gives their evidence and can be cross-examined by each party.
Both the applicant and respondent make their closing address.
You must limit your opening explanation to the orders you want and what your evidence will be. In some cases the trial judge may ask the respondent to give his or her opening explanation after the applicant's opening explanation. This helps to clarify the matters in dispute (in issue) and helps the judge arrange for the fair and timely conduct of the trial.
Evidence-in-chief is the main evidence of the party (person) which is contained in his/her affidavit plus any oral (spoken) evidence the judge allows. The first witness is usually the applicant.
Oral evidence is usually only permitted if you need to tell the judge about any relevant matters which have happened after you filed your affidavit, if any important matter has been left out in error or if you need to correct any error in the affidavit.
You may ask 'leave' to ask your witness further questions (or give further evidence if you are the witness) before they are cross-examined.
What is relevant?
Before determining if a piece of evidence is admissible, a court must be convinced that the evidence is relevant. Something is relevant if it proves (or tends to prove) something which is significant to the issues to be decided by the Court, or which may affect the credit (the believability) of a witness.
Evidence is relevant if it establishes one of the factors important to the final decision. For example, evidence which presents information to the Court about one of the factors set out in section 60CC(2) of the Family Law Act would probably be relevant in a parenting case. Similarly, evidence which presents information to Court about one of the factors set out in section79(4) of the Family Law Act would probably be relevant in a property case.
Sometimes a test of relevancy is to ask what ‘finding’ the Court will be asked to make at the end of the case. Credit (believability) questions are to provide reasons to the Court to disbelieve a witness (one of the functions of cross-examination). Discrediting a party is rarely accomplished by asserting that a person is a liar. If the person can be shown to have made prior inconsistent statements, this would normally strengthen a submission (argument) that this witness may not be telling the truth.
You may want to question a person who has signed an affidavit in support of the other party's case. This process is called cross-examination.
To do this you will need to make a formal request (preferably in writing and known as 'giving notice' ) to the other party (or their lawyer), so that they make sure the people who have sworn affidavits for them are available to come to court so you can question them.
You should make this request well before the hearing. If you do not make this request they may not be available to come to the hearing. If you make this request and they do not come, you can ask the judge not to rely on the facts in their affidavits.
The applicant may respond to the case of the respondent with a 'case in reply'. No new evidence is permitted in this stage.
After all of the witnesses have been questioned, you have the opportunity to summarise all the matters you say the Court should accept in support of your case. This is called a closing address and will include any legal matters, such as cases that have already been decided on similar issues ('precedents') and relevant sections of the Family Law Act. You should tie together the evidence with the law to demonstrate why the Court should make the orders you seek.
Adjournment (a break)
At any time during your hearing the Court may allow a brief break ('adjournment') so that you and the others involved can get together and talk about the matter to see if you can come to an agreement yourselves.
What happens next?
After hearing the case, the judge may stand the matter down for a short time. The judge will then resume and give reasons for their decision and make orders about the case. You should write down the orders - ask for the orders to be repeated if you do not understand them. If there is any obvious error, you should point this out once the judge has finished. You are not able to reopen and argue the case. The Court will, automatically and free of charge, send out a copy of any order made.
Alternatively, the judge may reserve (hold over) the decision about your case to another day, usually within three months. You will be told of the day and time the decision will be given so you can attend. On that day you will receive a copy of the decision, which includes the reasons and the orders made.