Child Custody Final Hearing Process

A person seeking child custody or parenting orders in Queensland can conclude their application in one of two ways.

1. Parents can come to an agreement about the custody of their children. This agreement can then be made official by the Court in a Consent Order.
2. 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 when both parties have finished pre-trial procedures. All interim applications must also have been dealt with. Before a 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 issue further orders if you demonstrate a significant and substantial change in your circumstances, or the other party’s.

You must seek sound legal advice before the Final Hearing to 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 carers. The Court can appoint an independent children’s lawyer; if so, that person becomes a party to the dispute.

The Final Hearing process

• Opening – at the beginning of the Final Hearing, each party is given an opportunity to make an opening address to the Court.
• This means the person applying can state what they want the Court to decide after the Final Hearing. The person responding can also state their desired outcome. If a lawyer for the children is involved, they can also express their preferences to the Court. Each party will also summarise the evidence supporting the Orders they seek.
• 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 and 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. Every party and witness must confirm their Affidavit is 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. Your lawyer or barrister will do this for you if you are legally represented.
• This questioning aims to demonstrate the strengths or weaknesses of the particular witness’ evidence to the Court. The other parties can also cross-examine you and your witnesses. Any inconsistencies in a witness’s evidence are brought to light at this stage.
• 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 can 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, 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.