What happens at 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 assessment 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

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 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:

  • disclosure.
  • subpoenas.
  • review compliance with orders.

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