If you cannot reach an agreement about parenting arrangements for children or property settlement outside of Court or in family dispute resolution, you may need to apply to Court so that the Court can make a decision. This decision may be one neither of you is happy with.
The final part of a Court case in the Family Court is called a ‘Trial’. In the Federal Circuit Court this is called the ‘Final Hearing’.
If you are representing yourself in a family law matter, there are some things that you will need to do to prepare for Trial or Final Hearing.
Work out the issues in dispute
The first thing to do is work out the legal issues that you and your ex-partner cannot agree on.
Be clear about what you want to get. Work out what the other party wants. You need to identify the differences between what you want and what they want.
In working out the differences, make a list of the strengths and weaknesses of your case. Note down your response to any weak points in the other side’s case. Make sure that you prepare thoroughly before your case goes to Court.
When your case goes to Court, every detail of what you say can be questioned or challenged. Do not assume that something will go unchallenged just because it seems obvious and right to you. Have your evidence ready to support your case.
Gather evidence in support of your case
The Court can only look at evidence that is relevant to the case and ‘admissible’ (able to be used in Court). Evidence is relevant if it supports a party’s argument, or helps to go against the other side of the argument.
Be objective about the evidence required. The evidence must be directly linked to your argument.
Do not use unnecessary evidence which may be distracting. At the same time, you must keep in mind your duty to disclose material relevant to the issues in dispute.
Sometimes evidence that might seem relevant cannot be used in Court.
Division 12A cases
If your case is being run using Division 12A, the Judge decides:
- the evidence to be used and how the Court uses it.
- the documents to be filed or served by either party.
- the witnesses to be used, the issues that the witnesses can give evidence on and when and how they can do so.
- the order of questions to be asked and how they are asked. The case may run as a discussion between everyone involved or more formally (for example, using cross-examination).
- whether subpoenasare to be issued, the documents (or witnesses) to be subpoenaed and the date for when the parties can see subpoenaed documents.
In Division 12A cases you normally give evidence by an Affidavit. Expert witnesses also give their evidence by Affidavit in most cases. Evidence by other witnesses is given by Affidavit wherever possible, or else in person or by telephone or video-link unless the Judge says not to.
While some of the rules of evidence may not be used in a Division 12A case, it is important to know about the rules. The Court may use some of these rules. This is usually decided on the first day of your Court case or during a ‘call over’ or ‘Directions Hearing’ (a pre-trial Court meeting).
It may strengthen your case if you use the rules of evidence. For example, the rules stop a person telling the Court about something they did not hear or see for themselves but were only told about by someone else. This is called the law against hearsay evidence.
If you want to use the rules of evidence in your Division 12A case, you need to ask for this on the first day. Section 69ZT(3) allows the Court to use the Evidence Act 1977 if the situation is exceptional and the Court has taken into account:
- the importance of the evidence
- the type of situation the case is about
- how strongly the evidence might prove that something is correct
- whether the Court can adjourn (delay) the Hearing to make another Order.
Make sure you are prepared for your first day in Court. Have a list of witnesses and evidence you would like to use, and any subpoenas you may need. List in detail the Orders you seek and the reasons you need the witnesses and evidence to support your case.
How to get evidence
You may be able to get evidence to support your arguments from:
- witnesses who can say that your version of events is true.
- written documents which support what you say.
- reports from professionals.
- financial records (for example, bank statements, copies of invoices, bills, receipts).
- letters or other correspondence.
- photos or videos that can support what you say.
What if there is no independent evidence available?
Often there is no independent evidence or witnesses to support your case. This is often the case with family violence.
If you do not have any independent evidence, you can still go ahead with your case. In this situation, the evidence given to the Court is your story written in an Affidavit.
If this is the case, it is important that the Court believes you are giving truthful and accurate evidence. Do not exaggerate details to try to make your case seem more impressive. Stick to the facts.
What if someone else has the evidence I need?
If another person, such as a family member, friend or work colleague, saw something, you can ask that person to tell the Court. They do this by making an Affidavit.
The person who makes the Affidavit is known as the ‘witness’. If the other party disagrees with the Affidavit, the witness may have to come to Court. If the witness does not want to do this, you may issue a subpoena. A subpoena compels (makes) them come to Court to answer questions about their Affidavit.
Some important rules about evidence
Not all evidence that is relevant can be shown to the Court. The rules about evidence are complicated. Evidence that cannot be used in Court is called ‘inadmissible evidence’.
The common types of inadmissible evidence include:
- hearsay evidence.
- opinion evidence.
- character evidence.
- past behaviour.
- legally privileged information.
- expert witnesses.
Hearsay is something you heard from someone else that you did not see or hear for yourself. Usually, you cannot rely on hearsay in your evidence to the Court. So, for example, you cannot talk about a conversation between your sister and ex-partner, which happened when you were not there.
There are exceptions to this rule. Evidence about a conversation might be allowed to work out the time and place of an event or why a person acted in such a way. So, you can say that a conversation took place, but not what was said. Also, hearsay can be allowed in cross-examination.
If you try to use hearsay evidence, for example in a Division 12A case, the other party may challenge its use. To avoid this, you can call the person who made the statement as a witness.
Usually witnesses can only give evidence about things they know as fact. So, a witness can give evidence of what they saw but not what they think about it. One exception to this is the evidence of an expert, who has qualifications or experience that they use to give an opinion. An example might include a psychologist or forensics expert.
Usually evidence used to harm a witness is inadmissible. If a party uses evidence to show their good character, you may be allowed to use evidence to show otherwise.
How a witness behaved in the past, if not relevant to the current case, is not usually admissible. However, you may be allowed to use evidence that shows a pattern of behaviour in certain circumstances. For example, you may be able to show evidence of previous incidents of family violence if violence is an issue in your case.
Legally privileged information
Confidential information that you have given to or got from your lawyer (including negotiations to settle the case) are inadmissible. Things said at mediation or in family dispute resolution are also inadmissible.
Confidential information may be used:
- when the parties agree to the evidence being used.
- where most of the evidence has already been used.
- when the information was not meant to be confidential.
- where the evidence contradicts other evidence given about attempts to settle the dispute.
- where the case is to enforce an agreement made by the parties to settle the dispute.
Reports from professionals (expert witnesses) should only be used when their evidence is necessary to sort out an issue in dispute. If you use an expert witness, it needs to be included in an Affidavit.
Expert witnesses must be:
- given a letter outlining the issues you would like them to report upon.
- used by both parties to make one report, if practical.
- informed of their obligations.
If the parties use 2 expert witnesses, both reports must be filed with the Court and the experts may have to meet each other.
It is very important to keep accurate, detailed and well-organised records of anything relevant to your case. It may be hard to decide what will be relevant, so keep more rather than less information. If your case goes to Court, many of your records become evidence.
What information to keep:
- marriage certificate and children’s birth certificates (if these were issued overseas, and a certificate is in a language other than English, you need to have the certificate translated)
- Court documents (noting the date you got them)
- a list or diary of important dates, including:
- date of when you started living together or were married.
- dates of birth of children.
- dates of purchase or sales of goods or real estate.
- date of separation.
- Court dates, Hearings when documents are due to be filed, etc
- dates of significant events, such as contact taking place or failing to take place.
- dates and details of violence or threats.
- dates and details of conversations that may affect your case.
- names, addresses and contact details of important witnesses you may need to call.
- copies of bank statements, invoices, receipts, policies and other documents about property.
- copies of correspondence.
photos, videos, emails etc.
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