Preparing for your final hearing: The final hearing in the Family Court of Australia is a critical stage in testing the evidence before a judge decides.
By the time a family law matter reaches a final hearing, you may have been involved in the Court process for months or even years.
There may have been interim hearings, affidavits, disclosure, expert reports, negotiations and attempts to resolve the dispute. A final hearing is different.
It is the point at which a Judge hears the evidence and submissions and determines the issues that the parties have been unable to resolve themselves.
For someone giving evidence, the prospect of a final hearing can be daunting. You may be worried about cross-examination, remembering events correctly, being challenged about your affidavit or simply what it will feel like to sit in the witness box.
Good preparation does not mean rehearsing answers. It means understanding your evidence, knowing the issues the Court needs to determine and being prepared to give truthful, careful evidence under pressure.
Preparing for a final hearing starts well before the day you arrive at Court.
Your legal team needs to identify the issues that remain in dispute, ensure the evidence needed to prove your case is properly before the Court and prepare you for what will happen when you give evidence.
If you are cross-examined, your job is not to argue your case from the witness box. Your job is to listen carefully, answer the question you are asked and tell the truth.
The role of your lawyer or barrister is different. They present your case, deal with evidentiary and legal issues, cross-examine the other witnesses and make submissions about why the evidence and law support the orders you seek.
Understanding that distinction is one of the most useful ways to prepare.
A final hearing is the final determination of the issues in dispute by a Judge.
Depending on the case, the hearing may concern:
A final hearing may take one day or several days depending on the complexity of the case and the number of witnesses.
The Federal Circuit and Family Court of Australia explains that a final hearing ordinarily involves an opening address, the giving of evidence and cross-examination, followed by submissions or argument about the evidence and law.
The Judge then makes a decision. Judgment may be given immediately, but it is common for a Judge to reserve their decision and deliver reasons at a later date.
A matter does not ordinarily move from ordinary case management directly into a final hearing without preparation.
Before trial, the Court may conduct a Compliance and Readiness Hearing to ensure the parties have complied with previous orders and that the matter is ready to proceed.
A Certificate of Readiness is required before that event.
Once a case has been listed for final hearing, the Judge may also conduct a Trial Management Hearing and make further directions about how the trial will be conducted.
By this stage, your legal team should have a clear understanding of:
This is why final-hearing preparation should not begin a few days before trial.
Very important.
An affidavit is a written statement of evidence that has been sworn or affirmed to be true.
In family law proceedings, evidence is commonly given through affidavits rather than a witness standing in Court and verbally recounting their entire story from beginning to end.
The Court describes an affidavit as the main way facts are presented in a family law case.
If your affidavit is relied upon at the final hearing, it is therefore an important part of your evidence.
But an affidavit should not be treated as an opportunity to tell the Court everything that has happened during your relationship.
Evidence needs to be relevant to the issues the Judge actually has to decide.
A well-prepared case is not necessarily the one with the longest affidavit. It is the one where the evidence needed to establish the relevant facts is properly before the Court.
Yes.
You should be familiar with the evidence you have given.
Depending on the length of the proceedings, you may have signed your affidavit months before the final hearing.
You should read it carefully before trial.
Do not try to memorise it.
Instead, understand what evidence you have actually given and identify anything that concerns you.
For example:
Raise those issues with your lawyer before the hearing.
Discovering a problem with your evidence during cross-examination is very different from identifying it with your legal team beforehand.
Cross-examination is questioning by another party or their lawyer about the evidence you have given.
If you have given your evidence through an affidavit, you will not ordinarily stand in the witness box and simply repeat everything contained in it.
Instead, you may be questioned about your evidence.
Cross-examination can be used to:
It can feel confrontational.
That does not mean you need to become confrontational in response.
The best rule is simple:
Listen to the question. Make sure you understand it. Answer it truthfully.
You do not need to work out why the barrister is asking the question before answering it.
You also do not need to turn every answer into an opportunity to persuade the Judge that you are right.
If the question can truthfully be answered with “yes”, “no” or a short factual answer, that may be all that is required.
For example:
Question: “Did you attend the meeting on 1 June?”
If the truthful answer is yes, the answer may simply be:
“Yes.”
You do not necessarily need to add a lengthy explanation about why you attended unless the question requires it.
But concise evidence does not mean artificially restricting an answer where an explanation is genuinely necessary to make it accurate.
Your obligation is to give truthful evidence, not to follow a formula.
Say that you do not know.
Do not guess.
Similarly, if you cannot remember something, say that you cannot remember.
There is an important difference between:
“I don't know.”
“I don't remember.”
“I think it was around March, but I can't remember the exact date.”
Each conveys something different.
The correct answer is the one that accurately reflects your recollection.
Trying to sound certain about something you are not certain about can create a much bigger problem than acknowledging that you do not remember.
Say so.
You can ask for the question to be repeated or clarified.
Cross-examination can involve long questions, propositions containing several facts or questions about events that occurred years ago.
Do not answer a question you do not understand merely because you feel pressure to respond quickly.
Listen carefully before answering.
A barrister may put a proposition to you that you disagree with.
For example:
“You were angry because the other parent had commenced a new relationship, weren't you?”
If that proposition is untrue, you can say so.
You do not need to argue with the barrister.
You give your answer.
The Judge is listening to the evidence.
Your lawyer will have the opportunity to deal with relevant evidence and make submissions about the case.
No.
One of the common difficulties witnesses have is answering a different question from the one they were actually asked.
They hear the subject matter and immediately begin explaining their whole position.
That can make evidence less clear and can open unnecessary lines of questioning.
For example:
Question: “Did you receive the email on 14 February?”
The question is not necessarily asking why the email was sent, whether you agreed with it or what happened three days later.
Answer the question asked.
If an explanation is necessary, give it.
If it is not, wait for the next question.
Silence after an answer does not mean you need to keep talking.
Correct it.
People make mistakes.
You may realise that you gave the wrong date, misunderstood an earlier question or said something that was not quite accurate.
Do not leave an answer uncorrected simply because you are embarrassed about changing it.
If you realise you have made an error, say so.
The important issue is that your evidence is truthful and accurate.
Stop speaking and wait.
An objection means there is an issue about whether the question should be asked or answered.
The lawyers and Judge will deal with it.
If the Judge allows the question, you can then answer it.
If necessary, ask for the question to be repeated.
You do not need to become involved in the legal argument about the objection.
Yes.
The Judge may ask questions or interrupt during the hearing.
Listen carefully and answer the Judge's question.
The Federal Circuit and Family Court of Australia advises parties to speak clearly and politely and not to raise their voice or address comments directly to other people in the courtroom.
A Judge should be addressed as “Your Honour”.
There can be restrictions on discussing your evidence while your cross-examination is continuing, including during breaks or an adjournment.
Your lawyer or barrister should explain the applicable restriction to you before you give evidence.
Do not assume that because Court has adjourned for lunch or overnight you can discuss your evidence with your legal team.
If something urgent arises, tell the appropriate Court or legal personnel rather than simply starting a discussion about your evidence.
You do not need to memorise every document produced during years of litigation.
You should, however, understand the documents that are important to your evidence and the issues in dispute.
In a property case, that might include:
In a parenting case, relevant material might include:
The documents that matter will depend on your case.
A good final-hearing preparation process identifies the documents likely to matter rather than asking a client to reread every document ever produced.
Some family law cases involve allegations that are confronting or deeply personal.
These may concern family violence, substance use, mental health, financial misconduct, parenting behaviour, coercive control or allegations about events involving children.
Preparation does not mean rehearsing a preferred answer.
It means making sure you understand the allegation, identifying the evidence relevant to it and being prepared to respond truthfully.
Where family violence is involved, there are also specific protections concerning personal cross-examination in certain family law proceedings.
If those provisions may apply to your matter, they should be considered well before the final hearing.
Practical preparation matters.
Unless your lawyer has told you otherwise:
Court hearings do not always run precisely to schedule.
Your matter may also take longer than expected.
Avoid arranging commitments that require you to leave Court at a particular time unless your legal team knows about them.
Much of the work involved in a final hearing occurs before anyone walks into the courtroom.
Your legal team may need to:
During the hearing, your barrister or solicitor is not simply “speaking for you”.
They are presenting the evidence and legal case in a structured way so that the Judge can determine the issues in dispute.
That is why trial preparation can be substantially different from the work involved earlier in a family law matter.
Yes.
Being listed for a final hearing does not mean settlement is no longer possible.
Cases can resolve in the weeks before trial, shortly before the hearing or sometimes during the hearing itself.
Preparation for trial can itself expose the strengths and weaknesses of each party's position.
That can create an opportunity for realistic negotiations.
Whether a proposal should be accepted is a different question and depends on the evidence, the law, litigation risk, cost and the particular circumstances of the case.
At the end of the evidence, the parties make submissions about how the Court should decide the case.
The Judge may deliver judgment immediately, but often the decision is reserved.
The Court's current case-management guidance states that judgments are to be delivered as soon as reasonably practicable after final submissions and usually within three months.
When judgment is delivered, the Court provides reasons explaining the decision and makes the final orders.
Those orders then govern the issues determined by the Court unless they are subsequently varied, set aside or successfully appealed in accordance with the law.
Do not wait until the week before Court.
By the time a matter reaches a final hearing, preparation should involve much more than reading your affidavit and practising answers.
You should understand:
Most importantly, do not approach cross-examination as a performance.
Listen. Think. Tell the truth. Do not guess. Do not argue simply because you disagree with the question.
Your legal team deals with the advocacy.
Your job as a witness is to give reliable evidence.
A final hearing is one of the most consequential stages of a family law matter.
For complex parenting and property cases, the work done before the hearing can be just as important as what happens in the courtroom.
Urban Law Group represents clients in contested family law proceedings, including complex parenting and property matters progressing towards final hearing.
If your matter is approaching a Compliance and Readiness Hearing, Trial Management Hearing or final hearing and you need advice about your case, evidence or trial preparation, contact Urban Law Group on 02 9580 9011.