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
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.
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 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.
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.
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