Preparing for Trial

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Less Adversarial trial in parenting cases

Financial and other non child-related proceedings

The Trial

Magellan

Less Adversarial Trial in Parenting Cases

Your case will only go to a less adversarial Trial if you have not been able to reach agreement using dispute resolution in a Family Relationship Centre, other community-based organisation or at the Court. If this is your situation, you may need a judge to decide, or help you decide, what is best for your children.

Before being referred for a Less Adversarial Trial in the Family Court, you will have attended at least one court event or meeting, such as a Case Assessment Conference (which involves a meeting with a family consultant) or possibly an interim hearing.

If you are asking the court to make orders only about the children and you filed your original application after 1 July 2006, the Family Law Act requires the proceedings that deal with these applications to be conducted in a less adversarial way.

However, you will need to consent to the trial of your case being heard in this way if:

  • you filed your original application before 1 July 2006 and it relates only to children
  • you filed your application after 1 July 2006, and
    • you are asking the Court to make orders about financial matters as well as about the chidlren. Your consent is required to include the financila matters only.
    • you are asking the Court to make orders only about financial matters.

What are ‘less adversarial trials’?

The Family Law Act 1975 mandates a less adversarial approach (Division 12A of Part VII). This means that in the Family Court a trial:

bullet is flexible so that it can meet the needs of your particular situation
bullet is inclusive in so far as your involvement in the process
bulletanticipated to be less costly than traditional trials (hearings) and will save you time in court,
bullet may be less formal than is usually the case in a court.
 

The judge, rather than the parties or their lawyers, decides what information is put before the Court and how the trial is run.

 

Preparing your case in a Less Adversarial Trial

 

After your last dispute resolution meeting with the family consultant, when it is clear your case may need to go to a trial before a judge, you and the other parent will be given a parenting questionnaire by a registrar listing your case for the first day of trial. Answer the questionnaire as best you can. You will need to file and serve a Parenting questionnaire at least 28 days before the first day before the judge. The front page of the questionnaire tells you what needs to be done. Your case will not begin before the judge until the completed questionnaires have been returned. Try to answer the questionnaire in your own words, although you can get advice about your answers from your lawyer if you have one.

Once you and the other parent have exchanged questionnaires and given them to the Court, you will receive a trial date at the earliest date a judge is available.

You may not file any affidavit or issue any subpoena without an order from the judge hearing the trial.

What happens at Trial

The first day before the judge is the first day of the trial. This is when the trial starts.

The judge will have read each person's completed questionnaire, the original application and response, the joint Balance Sheet in a financial case and any children and parent's issues asessment in a parenting case.

The judge controls your case only addressing the relevant issues in dispute.

The focus in parenting cases is on what is best for the children.

The trial may finish on that first day of trial if agreement can be reached, or further hearings to continue and then conclude the trial, may be scheduled usually before the same judge. The final stage of the trial will only take place once all the evidence, including all expert evidence, is before the Court.

In a parenting case, the same family consultant who prepared the assessment will be available throughout the hearing.

On the first day of trial

  • If your case involves parenting arrangements for children, the family consultant will attend at court to give general expert evidence to the judge to help identify relevant issues in dispute.
  • You will usually be 'sworn in'. That is, you will promise the court that everything you say will be truthful and you will not hide anything that is relevant to the issues in dispute. From this point, everything you say will become part of the evidence in the case.
  • You will be asked to adopt the facts contained in the questionnaire(s) as part of your evidence before the court.
  • The judge will ask you to talk about your case in your own words, if you want to, or your lawyer can do this for you.

The judge will decide what happens next after identifying:

  • the issues to be decided
  • the evidence to be heard and which witnesses, if any, will need to attend
  • who should provide evidence in writing (in what is called an affidavit) and what it should be about
  • what expert reports will be required, if any, and
  • whether a family report will be required and if so the nature of that report. Wherever possible, this will be prepared by the family consultant who is in court on the first day of trial.

The judge may refer you to a community-based service for further help (such as counselling or parenting education) or make orders about your children that will run for a limited time, to see if they work.

The Continuation Hearing

  • Continuation of trial hearings before the judge may be by telephone
  • the affidavits and expert reports are considered and the issues in dispute reviewed
  • any further evidence is identified and appropriate orders made
  • procedural orders are made for the purposes of the final stage of the trial
  • the final stage of the trial is allocated

The final stage of the trial

The evidence is presented and final submissions made.

What if I am concerned about family violence?

The Court takes violence very seriously. You will be able to raise any concerns about family violence at the start of your case or at any point during its progress.

If family violence is raised as an issue steps will be taken to deal with it when it is raised, as quickly as possible. If at the trial stage you are still concerned about family violence, it is important that this be raised again when you first meet the judge. This lets the judge decide how the case should proceed to keep parties (or parents) safe and able to participate fully in the trial. This might involve a person being heard by video or teleconference. The Court is focused on the best arrangements for the children in the future, so where family violence is an issue, the judge will consider the adverse effects of violence on children who experience or witness violence.

What if I do not have a lawyer?

The Court always encourages people to be legally represented, if possible, but you do not have to have a lawyer to be able to effectively participate in a trial in a child-related proceeding. If you do not have a lawyer, you will need to familiarise yourself with the Family Law Act and the related legislation and you will still be required to comply with any orders made by the Court. You may however be able to bring a support person to sit with you in court. The judge will also explain the process (for example, what is happening next and why) as the trial goes along.

How will the judge get more information about me or my family?

The judge can order a Family Report as part of the evidence. Wherever possible it will be prepared by the family consultant who is at court on the first day of the trial, and ordered early in the trial. The judge decides on the questions to be answered and whether to ask the children their views on what is best for them. All parents involved in the case will get a copy of the Family Report before the trial continues. If the judge wants more detail, the family consultant will usually speak in court.

Sometimes the judge may order a report from a person from outside the Court who is an expert on a particular question to be answered (for example, about mental health or drug abuse). This report will be considered in the same way as the Family Report. The cost of this report is normally met by the parties.

 

How will the evidence be considered?

The technical rules of evidence will usually not be applied in this less adversarial approach to such trials. However, the judge may decide the rules of evidence should apply to particular issues for special reasons. So all the evidence that is given to the judge, both verbally and in writing, will be admissible and it will be for the judge to decide what weight it might be given. This allows the trial to be less formal and less complicated so that it is more like a normal discussion than court trials usually are.

If you need more detail about what rules of evidence are affected you should seek specific legal advice.

Financial and other non child-related proceedings

(those not conducted under Division 12A of the Family Law Act)

Preparing for a trial in financial cases

 

How to prepare for the first procedural hearing before the judge

Both parties must finalise the Balance Sheet and comply with any orders made by the registrar at the procedural hearing. This form is available from the Forms Section of the Family Law website.

 

How is the case prepared for the Trial?

The judge manages the preparation of the trial, conducting the following events:

  • first procedural hearing before the judge
  • further days before the judge

The judge determines the isssues 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:

  • disclosure
  • subpoenas
  • review compliance with orders

The parties must obtain expert reports and prepare their evidence as ordered by the court.

What happens at trial?

The trial, also known as the final hearing, is a hearing before the judge in a courtroom. The judge conducts the trial and makes a decision about your case (makes orders)

Getting ready for trial

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 on the Family Law website.

Tips and Hints

The following hints may help you prepare for the actual day in Court

bullet make sure your witnesses know when and where to come to court
bullet read the trial plan and make sure you understand what will happen
bullet read all the affidavits from your case and the other party's case to make sure you are familiar with the evidence
bullet prepare questions if you want to cross-examine any of the witnesses
bullet consider making an opening explanation (address) to the court
bullet 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.

When you act for yourself, you need to obtain the Court’s permission for it to issue a subpoena. You do so by letter, 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 hearing before the judge or registrar.

See the brochure ‘Subpoena: Information for a person requesting issue of a subpoena’ under the Publications section of the Family Law Courts website.

Adjournment of the Trial

If you seek to adjourn a Trial you need to file 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.

What will happen in the Trial

Steps in the Trial
The table outlines the basic steps 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. The Court's brochure 'The Trial Notice and the Trial' has more detail. It is available at the Publications section of the Family Law Courts website.

Stage of Trial
Steps
Hearing opening 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
1 The applicant makes a short opening explanation (address) if required by the Trial judge.

2 The applicant gives their evidence-in-chief. No further oral evidence is given, unless the judge agrees to it.

3. Witness gives evidence

4. The respondent may cross-examine the applicant and/or witness.

5. The applicant may re-examine the witness.

6 Steps 3-5 are repeated for each of the applicant’s witnesses.

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.

Final stage
Both the applicant and respondent make their closing address.


Opening explanation (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
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 of any relevant matters which have happened after you filed your affidavit or 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 admissable, 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 (believability) of a witness.

Evidence is relevant if it establishes one of the factors important to the final decision.

Sometimes a rest 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.

Cross-examination
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 or judicial registrar not to rely on the facts in their affidavits.

Case in reply
The applicant may respond to the case of the respondent with a 'case in reply'. No new evidence is permitted in this stage.

Closing address
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 or judicial registrar 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 or judicial registrar 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.

(Information in this section was obtained from the Family Law Website )

 

 

 

 

 

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