An application seeking child custody orders, or seeking orders about parenting arrangements, can generally be concluded in one of two ways:
- If both parents can come to a mutual agreement regarding ongoing arrangements for the children, the agreement can be finalised by the court in a Consent Order.
- If you are unable to agree, the court will conduct a Final Hearing (referred to as a “trial” in the Family Court), and the court will make Final Orders.
The Court will list a matter for a Final Hearing once the both of you have completed the pre-trial procedures, and all interim applications have been dealt with.
Before you go to a Final Hearing, you should get expert legal advice on how Final Hearings are conducted, and the chances of success for your case.
There are significant implications of a Final Hearing. Most importantly, the orders the court makes at the Hearing will remain in place until the children are 18. The court will only make further orders if you can show the court that there has been a significant and substantial change in your circumstances, or that of the other party.
It is critical that you get sound legal advice before the Final Hearing so that you can present your best and strongest case.
If you don’t get the orders you wanted at the Final Hearing, in some circumstances the court can make you pay 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), but can also include other people involved in the children’s lives (such as grandparents or other carers). The court can also appoint an independent children’s lawyer in the matter and if so, that person becomes a party to the dispute as well.
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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 Applicant and Respondent (as well as the Independent Children’s Lawyer if one has been appointed) are able to make a statement about what Orders they would like the Court to make following the Final Hearing. Each party will also summarise the evidence that they say supports the Orders that they are seeking.
- Evidence in Chief - this stage allows each party to present the evidence to the Court that the party wants the Court to consider. This evidence is included in that party’s affidavit material, and the affidavits filed by any witnesses on behalf of that party. There are some limited circumstances where oral evidence in chief will be allowed, but generally everything a party wants the Court to consider must be contained in an Affidavit before the Court. At this stage, you can also correct any errors in your affidavit material. Each party (and witness) will be asked to affirm that the contents of their Affidavit are true and correct. Once this process is 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, but there are certain circumstances where the Court will want to hear the case of the Independent Children’s Lawyer, or even the Respondent’s case, first.
- Cross-Examination - during cross-examination, you (or your lawyer or barrister if you are legally represented) are given the opportunity to question the other party, and the other party's witnesses, about their evidence. The purpose of this questioning is to demonstrate to the Court, the strengths or weaknesses of the particular witness’s evidence. The other parties will also have the opportunity to cross examine you and your witnesses. It is at this stage, that any inconsistencies in a witness’s evidence are brought to light.
- Re-Examination - once all of the witnesses have been cross-examined, the Court gives each witness an opportunity to clarify any issues that arose during cross-examination. The witness is not able to provide the Court any new information (in most cases), but is able to further explain matters that arose during cross-examination.
- Closing - each party is then given the opportunity 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 will attempt to persuade the Court that it should make the Orders that party is seeking. It is at this stage that the relevant legislation, and case law (law arising from previous cases that have been determined by the Court) that supports your case is brought to the attention of the Court.
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 a number of months, 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.