The Trial or Hearing

Trials, also known as Final Hearings are held the Family Court and Federal Circuit Court to determine applications for Final Orders.

You will be given a Trial or Hearing date after all interim applications have been finalised and you have participated in the pre-trial procedure, which includes a Direction’s Hearing.

Evidence in chief

Evidence in chief is the evidence a party wants the Court to consider. It is included in your Affidavit and your witnesses’ Affidavits. It sets out your side of the story. You can only give evidence in person, without an Affidavit, in limited circumstances.

When it is your turn to give evidence, you can ask the Judge if you can take a copy of your Affidavit, and pen and paper, with you. You will then take an ‘oath’ or ‘affirmation’, which is where you promise to tell the truth. Remember that everything you say in Court will be recorded.

If you want to change anything in your Affidavit, such as mistakes or typing errors, tell the Court now. If things have changed since you first prepared your Affidavit, you may need to prepare an updated one. Do this at least 14 days before the Final Trial and serve it on all other parties.

The Family Court generally allows only 1 Affidavit per witness. If things change after the new Affidavit is served, you may be allowed to give this information yourself from the witness box.

You must go through this process with all your witnesses. Ask each witness at the beginning of their evidence if they remember affirming their Affidavit, and if it is true and correct.

Cross-examination

Cross-examination is where you get to ask the other party and the other party’s witnesses about their evidence. Your questions should try to show the Court that the other party’s story is wrong or weak and that yours is right. Questions that are asked do not form part of the evidence, only the answers given in response.

To challenge the evidence in an Affidavit, you need to give the other party notice that their witness must come to Court for cross-examination. Do this by letter, once the date for Trial has been set. Ask early. Bring a copy of the letter to Court.

Preparing your cross-examination

You need to be well prepared to cross-examine. Read all the Affidavit material – for your own case and for the other party’s case.

Some key tips are:

• prepare questions about the areas of weakness, and differences between each Affidavit
• if you have evidence that proves the other party’s statements are wrong, you must put (tell) that evidence to the witness. If you do not question or tell them about this, you are not allowed to use this evidence at all.
• write down the main points you want to make (see the Family Law Act 1975 and Family Law Rules about cross-examination).
• write a list of questions you want to ask a witness so you do not forget anything and use this to help you stay on track.
• you are allowed to ask leading questions (questions in which the answer is suggested). For example, ‘You were late to pick up Peter, weren’t you?’
• you cannot ask questions that are offensive or abusive.
• you cannot repeatedly ask the same question hoping to get a different answer.

Example of cross-examination

Ms Jones is being cross-examined about not letting Mr Jones see their son Peter. The parties had previously made Consent Orders where they both agreed to this.

Ms Jones said in her Affidavit that Mr Jones made no contact with Peter. She implied that he does not care about him. Mr Jones says that Ms Jones stops him seeing Peter. He has copies of his telephone records showing calls to Ms Jones’s number.

In cross examining Ms Jones, he might say:

1. Now on 6 January 2008, you went to the Family Court at Brisbane, didn’t you?
2. You had a lawyer representing you on that day, isn’t that right?
3. It is correct that we signed Consent Orders written by your lawyer, isn’t it?
4. Before signing the Consent Orders, you read them carefully didn’t you?
5. It is also true that you were given a copy of the Consent Orders, isn’t it?
6. Would you agree that the Orders clearly state that Peter is allowed to get a call from me each Wednesday between the hours of 6.30 pm and 7.00 pm?
7. It is correct that your home number is 3123 4567, isn’t it?
8. Since the Orders were made, it is true that I have called your home and asked to speak to Peter each Wednesday at 6.30 pm, isn’t it?
9. It is also true that on each and every occasion that I have called to speak to Peter, you have answered the telephone, isn’t it?
10. It is true, isn’t it, that as soon as you hear my voice you hang up the telephone?

If Ms Jones does not agree that the phone calls took place, Mr Jones can tender (show) the phone records. However, the phone records only show that a phone call was made from Mr Jones’s phone to Ms Jones’s phone. The records do not prove that it was Ms Jones who answered the call or that she hung up the phone. She might say that Peter took the calls and hung up.

If that is the case, the information should have been in her Affidavit. Not including this information may affect her credibility.

Re-examination

Re-examination happens after witnesses have been cross-examined. This gives the witness a chance to explain things further that came up during cross-examination.

The witness cannot give the Court new information or go back to earlier evidence during re-examination. In some circumstances, witnesses may bring in new evidence. However, they must ask the Court first.

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