The final hearing
Final hearings are held in the Federal Circuit and Family Court of Australia to determine applications for final orders.
You will be given a final hearing date after all interim applications have been finalised and you have participated in the pre-trial procedure which includes a directions hearing.
You may need to get legal advice.
Evidence in chief
In advance of the final hearing, parties should file their evidence in chief in accordance with court directions.
Evidence in chief is the evidence a party wants the court to consider at a final hearing. It’s included in your affidavit and your witnesses’ affidavits. It sets out your side of the story. If you previously filed an affidavit and you want to rely on the evidence in that earlier affidavit at the final hearing, you should include the evidence again in your evidence in chief. You, or a witness can only give evidence in person, without an affidavit, in limited circumstances.
When it is your turn to give evidence at the final hearing, 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 when it your turn to give evidence. 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 Federal Circuit and Family Court of Australia 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.
Final hearing
At the final hearing, each party will present their case to the Judge. This includes:
- an opening statement or address—where each party tell the judge a summary about their case
- cross-examination of parties and witnesses where they are asked evidence and their evidence is challenged
- argument or final submissions—where the party makes a statement to the Court about the evidence in the case and the law.
The final hearing can take up to 1 day or longer, depending on the number of issues in dispute and complexity. After the hearing, the Judge will make a decision and their reasons. This may be on the same day or reserved to a later date if they need more time to consider the case.
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.
In some circumstances, the Court may say there is a ban on personal cross-examination. This is known as a ‘banning order’ under section 102NA of the Family Law Act. If personal cross-examination is banned by the court, cross-examination will need to be conducted by a lawyer. A person can organise their own lawyer, or they can apply to the Commonwealth Family Violence and Cross Examination of Parties Scheme for a lawyer.
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 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 about what the Judge is required to consider in making a final decision about your case).
- 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 can’t ask questions that are offensive or abusive
- you can't 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:
Q. Now on 6 January 2008, you went to the Family Court at Brisbane, didn't you?
Q. You had a lawyer representing you on that day, isn’t that right?
Q. It is correct that we signed consent orders written by your lawyer, isn't it?
Q. Before signing the consent orders, you read them carefully didn't you?
Q. It is also true that you were given a copy of the consent orders, isn’t it?
Q. 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?
Q. It is correct that your home number is 3123 4567, isn’t it?
Q. 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?
Q. 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?
Q. It is true, isn't it, that as soon as you hear my voice you hang up the telephone?
If Ms Jones doesn’t 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 don’t 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 can’t 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.
Appeals process for family law matters
Find out how to make an appeal against a family law matter.
Do I need legal advice?
You may need legal advice if you need to know about court procedures or if you are representing yourself.
How to get legal advice
We may give legal advice about family law.
The following organisations may also be able to give you legal advice.
Community legal centres give legal advice on a range of topics. Contact them to find out if they can help.
Queensland Law Society can refer you to a specialist private lawyer for advice or representation.
Family Relationship Advice Line gives information about the family law system in Australia.
Who else can help?
These organisations may also be able to help. They don’t give legal advice.
Family Relationship Centres give information, referrals, dispute resolution and advice on parenting after separation.
Federal Circuit and Family Court of Australia deals with family law cases. Court forms and information on family court processes available online.
Disclaimer: This content is for general purposes only and not legal advice. If you have a legal problem, please contact us or speak to a lawyer. View our full disclaimer.
Last updated 31 January 2023