Child Custody Final Hearing Process
A person seeking child custody or parenting orders in Queensland can conclude their application in one of two ways.
Parents can come to an agreement about their children. This agreement can be made official by the court in a Consent Order. If you cannot reach an agreement, the Court will hold a Final Hearing (known as a “trial” in the Family Court). The Court will then issue Final Orders. The Court will list a matter for a Final Hearing. This happens when both parties have finished pre-trial procedures. All interim applications must also have been dealt with. Before you go to a Final Hearing, you should seek expert legal advice on both the Final Hearing process and the chances of success for your case.
There are significant implications of a Final Hearing. Most importantly, the Court’s orders at the Hearing will remain in place until the children are 18. The Court will only make further orders if you can show that there has been a significant and substantial change in your circumstances, or that of the other party.
You must seek sound legal advice before the Final Hearing so that you can present your best and strongest case.
If you don’t receive the orders you wanted at the Final Hearing, the Court can sometimes make you pay. This could be some, or even all, of the legal costs of the other party (or parties) to the dispute.
The parties to a Final Hearing are generally the children’s parents (the Applicant and the Respondent). It can also include other people involved in the children’s lives such as grandparents or other carers. The Court can appoint an independent children’s lawyer in the matter; if so, that person becomes a party to the dispute.
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The Final Hearing process
- Opening – each party is given an opportunity to make an opening address to the Court at the beginning of the Final Hearing.
- This means that the person applying can state what they want the Ccourt to decide after the final hearing. The person responding can also state their desired outcome. If there is a lawyer for the children involved, they can also express their preferences to the Court. Each party will also summarise the evidence that supports the Orders they are seeking.
- Evidence in Chief – this stage allows each party to present the evidence they’d like the Court to consider. This evidence is part of the party’s written statement, along with statements from any witnesses supporting that party. Oral evidence in chief is occasionally allowed. However, typically, a party must include everything they want the Court to consider in an Affidavit.
- You can also correct any errors in your affidavit material at this stage. Each party along with any witnesses will be asked to affirm that the contents of their Affidavit are true and correct. Once complete, the Affidavit material (and any brief oral evidence, including any corrections to an Affidavit) becomes that party’s evidence.In most circumstances, the Evidence in Chief of the Applicant will come first.
- In some situations, the Court may listen to the Independent Children’s Lawyer or the Respondent’s case before anything else.
- Cross-Examination – during cross-examination, you are given the opportunity to question the other party, and the other party’s witnesses, about their evidence. If you are legally represented, your lawyer or barrister will do this for you.
- This questioning aims to demonstrate to the Court the strengths or weaknesses of the particular witness’ evidence. The other parties can also cross-examine you and your witnesses. At this stage, any inconsistencies in a witness’s evidence are brought to light.
- Re-Examination – after cross-examination, witnesses can clarify any issues that arose. The witness cannot give the Court new information but can explain additional matters that came up during cross-examination.
- Closing – each party is able to provide a closing address to the Court. Each party will give the Court a summary of the important points of the evidence that supports their case. In a closing address, each party presents their case and relevant legislation and case law to persuade the Court to make the desired Orders.
Following a Final Hearing, in almost all cases the Court will reserve its decision until a later date. In most circumstances, the interim orders that were on foot at the time of the Final Hearing will remain in force. It can take several months, possibly even longer, before the Court hands down its Judgement. At that time, the Court will make Orders on a final basis and will provide a justification for those Orders, known as a Judgement.
Frequently Asked Questions
How long does the Final Hearing process take?
No strict timeframe exists for Family Court hearings, and it is important to remember that each case differs. Many matters are finalised within 12 months, however, some may take years, depending on their complexity. Interim orders are designed to be temporary and can be determined within a few weeks if deemed to be urgent, or within 2-3 months.
What does a judge look for at a Final Hearing for Children’s living arrangements?
The two primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm.
Do all parenting matters need a Final Hearing?
If both parents can come to a mutual agreement, a consent order or a parenting plan can be drafted. Whilst the agreement does not need to be formalised by the courts, we recommend you seek expert advice from our family lawyers who can assist you in protecting your child’s best interests.