Hearings

Happens, the Divorce Down Under podcast where we talk about everything and everything family law related. To Split Happens, the Divorce Down Under podcast with me, Alex, and my legal colleague, Liza. Today we're going to talk about hearings and evidence at hearings.

So when I'm talking about hearings I'm meaning uh heading off to court in relation to family law matters, because that's what we talk about here. And the primary um courts that we go to these days are what is called the Federal Circuit and Family Court of Australia.

So Liza, court hearings, maybe you could start us off because you're an ex barrister by running us through what a typical court hearing might look like if it's the final hearing. If it's the final hearing, you've parties have served all their evidence. And they've also Called case outlines, which is just a summary of what the court what your case is, so that the court can understand a little snippet of.

Um and when you get to court on the day, the judge um that's hearing your matter will usually deal with a few housekeeping matters, making sure that everyone's ready to go. yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n From the parties, from the party's lawyers. Barrister appearing on their behalf. Yes, it is. Well, We will go to the same law school. We'll do the s same law degrees.

Well it's uh Not you don't hear from both council and So the the barrister usually at a final hearing will give a bit of an opening and tell the court a bit about what's what the matter is going to be. Um The applicant will call evidence. Um the applicant goes first. They go first. Whoever the applicant is. So whoever brought the application is the applicant and in that case that person will be going first and they will also have to give every And now your evidence is

Yeah, you said you said that uh that you've you've submitted all of the evidence. So what does that mean you've submitted all of the evidence? Because I think we have a a misconception sometimes from so many of the T V shows that we get here in Australia, uh from the States. The truth. You can let's try okay. Oh that one. I did see that. Okay. That's me. But with the evidence then, what form does that take? And we've submitted it. How have we submitted it?

Yeah, so it's normally in the So um everyone has That sounds like an old Latin phrase which I know it is. Yeah, so. Seen a few different versions of the spelling of affidavit. Um but it's actually just a swallow. And it you attach all the documents that you want to

put forward before the court. Um they're called annexas and if there's a lot of anex Depending on Right, so if it's gonna be really voluminous the number of documents, so you get your sworn statement, that's your affidavit, and the documents themselves, if there's a lot, they probably are better off being kept separate and out of your affidavit. And you have what we call a Mm-hmm. In this day and age Although there is electronic file. It's easier to scribble on a piece of paper.

Right. Al although I mean electronic trials are a thing, they are happening now and they're becoming more and more prevalent. But so the my the recent trials that you and I have been in, I know they've been predominantly paper based trials. So the once you've the courts received that is Now that's just a a loyal way of saying that the court's receiving that It's not actually evidence. We use the word evidence, but it's really just a statement. It's what you're proposing to put forward.

Right. So it's what you say happened in a sworn statement, but at that moment in time the court hasn't agreed with you. It's just said, Okay, well that's what you say and the other person's gonna have their own say, presumably. So once the evidence

Okay. Um being a pedant,'cause I I I know what you mean by when the evidence is read, but a a a listener who doesn't do this sort of stuff all the time thinks what does that mean? Would what does somebody just sit down and we just wait until the judge reads every single scrap of paper inside the courtroom or what does that mean? Well normally um the court will ha the judge will have the lawyer whether it be the

I read the affidavit of Alex Wynn sworn, blah blah blah. And the um and then if the court hasn't if the judge hasn't already read Right. So the process of telling the court that you know you read the affidavit of Fred Bloggs or Joe Smith or whoever means that we want the court to have read that evidence, to or to have read our version of the evidence.

So that we can then rely upon that. Yep. Okay, so you I'm in the witness box and you just sort of said, Okay, I'm gonna read the affidavit of Alex and what happens next? At a final. Your own lawyer will probably if you're the witness about being in the weakness box because it is quite a daunting and that you've Yeah.

Or yeah, something's changed and I I th I said something in my statement that was sworn a few weeks ago or affirmed a few weeks ago and now that's no longer true. So I I'd need to say actually that paragraph's wrong or Yeah. That's right. Because it But then what happens is is the other party's lawyer, they will have

And that's the barristers art really, isn't it? Um specialist advocates that they are, barristers spend a lot of time developing their skills in eliciting the answers that they are seeking that you wouldn't as a witness necessarily want to give.

So how does that work then? From I mean from tails of the trenches then, so how would you go about cross examining somebody? What the first thing I Discredit the witness? Show that they're Just um run through the motion. Where all the colours are. So it it depends on what my purpose In most cases I will be trying to disconnect Or I would be able to do that.

So It's quite a a difficult path to trade, isn't it? Because you don't want to upset the judge by being deliberately obtuse or rude to somebody who is giving their time and they may not be a party, they could be another witness.

By attacking them and if you do it in a in a blatant and personal way, then that can put the judge on the wrong side. That's right. But the idea must be to go to the facts of the things that they have said and sort of challenge them to create some um the the doubt in the mind of the of the judge or whoever's hearing the case. And that's what you have to do. Because You've got your version.

One thing that the cross examiner will rarely do From the cross examiner's point of view, we don't want to know why you believe a certain That's really we don't want the the witness to talk too much. We want to um we want to be able

witness. Yeah. So changing changing tack then for a s for a second or changing perspective. Um if you are the witness and and I have been a witness in many court cases in the past. Witness. I I I s I had the joyful um pleasure of being cross examined for nearly three days by two self represented parties and it went. That would have been hilarious.

It it was hysterical. Uh and the counsel that we had briefed in that case kept making eye contact and just rolling his eyes and putting funny little cartoons. And I couldn't talk to them of course for two to three days. Um so it's a great deal of fun being a witness, but it's not really. You have to listen very carefully to the question asked and just answer that question as truthfully and succinctly as you can. That's usually what I advise my clients to do if if they're being asked a question.

Yeah, you do. And um 'Cause what happens is the more you talk, the more fodder you've given the cross examiner because Where where can we take where can we go with this? And there've been plenty of times where I A very simple question, it's which in most cases would require a yes or no answer from a witness. And they've just gone and given me this diatribe of absolute what they're really

How much they ha you know, and it's so out of left field and you think, okay, great. Well, I didn't know that you hated the mother so much. Brilliant, isn't it? Thanks very much for all the extra information. for that. Okay, yeah. Yeah. Is that what your real is that your real motivation behind? This is why you're doing this.

Yeah. And the mannerisms I think of the witness are are that's it's a very important part of the job of a judge at first instance, by which I mean the person who's um running the court uh you know for the first decision, the trial.

The looking at the mannerisms and the body language and the tone of voice, all of those things are part of the weighing up process as to who's telling the truth, who's not telling the truth, or or whose whose version of events is probably closer to the approximation of what actually. Certainly I've um seen many clients who

are are very eloquent when you're talking to them and they sit in the the witness uh box and they they're like a rabbit in the headlights and they say hardly anything. And other people who are quiet Don't say very much. They just as you say start rabbiting on and you think please, please shut up. Don't laugh in the core. Well when it's your own client that's in there doing that, that's where you Yeah, we need it we need a fire alarm. No, no one

I should have said at the start of this podcast of course, none of this is advice. This is just Liza and Alex just having a general chin wag uh about you know the the land of family law and and in particular today here. I had one um fairly recently and the fellow was in the witness box and I was cross examining And he was sounding Qu as you say, quite eloquent. Well thought out. But one thing that is your lawyer really needs to be wary of is that body length So this fellow he was there.

Stretch his shirt, trying to get air. Yeah, you don't see don't see beads of sweat on a transcript later on, do you? So so I purpose. Sneaky cancel trick there. Onto the onto the Reluctantly giving that evidence because when Yeah, okay. It took me about three or four goals. When you read it. They don't have a video recording of the video. No, they don't listen and they don't watch it. They read what was said. Yes. I love doing that. It it happens more often than than you would imagine.

Let us in on the joke. Well that's cross examination. Um I think famously it's you know when you the art of cross examination is is not to examine cross exam. So you you as counsel keep your temper and you try and get a rise out of the person that's answering the questions. Yeah. Yeah. But there are other ways that uh evidence comes into court though. So you've got somebody they have their affidavit read and then they are cross examined and sometimes if they've made a bit of a a fluff up of it.

your own barrister might then get a chance to sort of say, just put you back on point and correct a couple of things afterwards. But

Sometimes people um introduce documents, you mentioned those as tender bundles and other things as well, you know, like uh uh audio recordings and and videos. I mean we live in this this age when, you know, we're Surrounded by sm smartphones and dumb operators where we have the technology in our hands to take fabulous video footage of anything or to record people surreptitiously. And where does the court stand on that?

That's a case-by-case basis. Now, all the all of the states have their own individual rules about what's permissible about recording someone. But if you look at it this way. Is it something that is going to actually assist your case? Is this really clear evidence of something that is going on that is re uh relevant?

So you've actually I'll come back to that'cause you've mentioned the r the word relevance and that's really important in some of the You know, I'm getting frustrated by you know my ex every time you know we swap over the children between us. Um say she's screaming at me and saying these horrible things at me. So I've decided I'm just gonna st I'm just gonna record these because she says these horrible things to me and then later on she'll send me an email saying why were you so mean to me?

That classic kind of, you know, saying one thing and doing something else altogether. So how would a court treat that kind of recording? I'm recording it let's s let's say I'm doing it just so I've got my own record of what this conversation. If it's real if if It is a crucial matter that the court needs to Then the court's most likely going to accept that and receive that uh material into evidence despite Yeah.

In most cases you're not meant to record someone without As I said, it varies from state to state but you'll need I think in Queen in Queensland you can. I think the the invasion of pro I know New South Wales the rules might be slightly different, but in Queensland the rule goes something

Uh no no doubt any sort of privacy lawyers will be they can jump onto the email and tell me how wrong I am. But the invasion of privacy act here I think means that you can record your permission, but you would require permission to publish it subsequently of the other person. Uh material forward as ev evidence. Yes, you may record it for the Yeah. where you can um you you'll learn things and you've said, No, I'm not gonna use that. It's the same with the The same with the record.

And I think that what the courts really look at and there's a And lawyers use a lot. It's what the probative value is of that evidence, meaning how important is it to your So say for example it's a recording of um of someone um just yelling in the background And it it's not quite clear what they're yelling about, whether they're yelling a yelling to you or at you, or if there's some uncertainty about what it is that you're trying to um achieve by that evidence.

the court's unlikely to receive that and say that's that's a good piece of evidence. And we don't that there's a real um chance that that particular evidence is going to affect the outcome of your case. So So by prohibitive value mean the the extent to which this is actually going to influence anything. Yeah, that's right. So That's the number one thing. whether or not the evidence can be Aben Lego is proud to see. You'll be able to do that.

Hands with Alban Legal. For all your family law needs, call us on 07 55 650. Or visit our website at arbanlegal.com.au.

Now let's talk then a little bit about the rules of evidence, which is a dusty and dry old topic that we we as solicitors and and barristers and and as law students back in the day will all have studied and study and and be mindful of all the time. The rules of evidence are a series of rules that developed over centuries in the common law and they've now been enshrined in things like the Evidence Act and in the part of the Commonwealth here.

So can you maybe rattle through the you know, the big pieces of what the rules of evidence are, the main rules of the event. Yeah. So the very first rule. The evidence must be relevant. Not something that is relevant to you, um, to what you think is important. So you might be annoyed that your husband has had an affair and therefore you want to go through and talk about all those things relating to the affair.

That might be relevant to the stage that you're going through in your life, but it's not necessarily relevant to the fact Yeah, so if you if if if this is a property case, it's just about working out who's going to keep what house or or just divide the bank accounts up then Brutally, it doesn't really matter who the transgressor was inside the emotional, interpersonal relationship, that's not relevant.

Unless in having the affair it's caused, you know, huge amounts of money to be shifted away to get to pay to the do the mistress or the or the or the other bloke. That's right. Or whatever. Whichever way. Um whichever whichever path you wish to take. Um so in terms of the The next step though is if you've determined that the evidence is not a good idea. Then you look at the admissibility of that.

Okay, so admissible evidence is stuff the court's going to listen to and inadmissible evidence is stuff the court's going to say. Not n we're not going even going to entertain this. Yeah.'Cause if it's inadmissible it's inadmissible for a number of reasons and a lot of the time Yeah. It's not really the best form. the evidence is unreliable, there's some problems with it and it it makes it it brings it brings about a really unfair situation if you have

inadmissible evidence being led before a court. So that's why th that you have this rule in the first place. It's to it's designed to protect people from or pr basically protect you from having the court listen to stuff that And shouldn't count for a range of reasons.

Okay. So what might be a reason that something is inadmissible? So the first one is hearsay. Now that's a a legal term that Oh, a lot of lawyers would probably even get it wrong half the time. Um, it's something that people seem to struggle with that concept. In short, hearsay is where it's something that you've heard from someone else. And yet you seek you seek to rely upon it as being truthful. So I'll give you an example because I think that's probably the easiest way to try and explain.

So say for example, there's an issue in the case, a parenting case where um whether the dad was taking drugs while the kids were in his care. And so inadmissible evidence might be mum's affidavit saying, My sister told me that John was using illicit drugs the um when he had the kids on Saturday night. Now that's inadmissible. Mum wasn't there. Mum can't say that. Mum does not know whether John was taking drugs.

So that's just The preferred way to prove that would be to get evidence from the sister, who is the one who said. Give direct a. And to give direct evidence and you call it call evidence from the sister who says, When I went to collect the children from John on Saturday night, I saw drug paraphernalia in the lounge room sitting beside the children. Um something along those lines. So it looks so it then the court can draw those

It's got another witness to assess then, hasn't it? Say is the sister a credible witness? Does what she's saying sound you know, truthful? Yeah, and and then it's up to the court, it's up to that judge to be able to draw those inferences and say, Well, from these facts I'd I That he probably was. Taking drugs or was affected by drugs around the time that the kids were in his care because of these reasons, because the sister saw the drug paralyzed

in the lounge room. It's like it's like what was that game? Cludo. Professor Plum with the candlestick. Yeah, it's the sister. Sister with the bong in the lake. With the bong in the lounge next to the bottom.

And of course conversely and and I wouldn't want any listeners to think that just because you get a separate person to give that evidence, which you can't give yourself because it would be hearsay, it doesn't necessarily automatically give credibility to that witness because they might be a terrible witness themselves and the court might go

Sure, you've just put a stooge up there to say the thing that you want to be said, and I don't believe it anyway. So there's and and the council on the other side will have plenty of opportunity to to challenge them through cross examination.

So here say, yeah, th there are some exceptions though, aren't there, with some of these admissible rules. But I mean talking in particular as we mentioned there about the children. In children's cases in the Family Law Act here. So in under the Family Law Act. There's a rule there's a there's a section. Sixty nine. I'm gonna get it wrong, aren't I? Sixty nine Z T. No, you're right. I'm right. Wow. Excellent.

Um 69ZT deals with um what's how the evidence act is to apply or not apply in relation to child-related proceedings. So when we say child related proceedings, we're talking about when we're talking about orders for living and spending time with the kids. Parenting orders. Yeah, so just because children are involved in a relationship if your case is about money

with the other person, then typically the rules of evidence are going to apply. We're really talking only about parent So in in the parenting cases it's really up to the court as to whether or not The rules of evidence are going to apply. The Act says that they're not to apply, but sometimes there's an advantage by asking the court for those rules.

Particularly if you have any doubts about the credibility of the other party or the intentions or if you know that you have much better evidence or they have Sometimes people you you know just through dealing with that they have this bit of a tendency to just make stuff up all the time. They're they're the type to fabricate their own evidence, to send their own to send themselves emails or

Something that makes it you you know that they're going to bolster that their case in some way. So what you really wanna do if you've if you've got someone that's a bit more manipulative and a bit more deceitful on the other side. Um at that first directions hearing when the matter's before the court, you can say to the court, I think this is an appropriate case where the rules of evidence.

The court's unlikely to give any sort of response at that point in time. But what you've d And when it as it gets closer and if the matter does in fact go towards a a final hearing Um some doc you know, proper proof of Um So from third parties and you know extrinsic evidence, l going back to those document bundles we talked about earlier. That's right. Show me. You say that these things happen but you've got nothing to corroborate this. Show me.

That's right. And so it makes the courts the reason why you is that it makes the court's job, the judges job a lot easier because they then have They've got a a a a level playing field for both parties that they can say, right, well you've known what the rules are from the start and this is what you need to do. This is what you're going to need to do to prove your case. If you want to say this, then you have to you have to show

And so that's why it's really important that you you have that plan from the outset and understand and mainly your lawyer will need to know. And if they don't know the rules of air, Get a new lawyer. That's basically you you've got to have a lawyer who understands the rules and how to use them to your advantage because they're there.

And even though the the Family Law Act will say that in child related proceedings all these particular rules don't apply, there are still some, like for example, the court's control over questioning and And the courts still have discretion over the application of those rules, so the rules either do or don't apply. They've been just been applying the rules of evidence. They've been applying those rules about hearsay.

tearing strips off people for off um lawyers for not having the content of conversations in affidavit being not in in what we call an admissible form, being you know direct speech so that to overcome Yeah, so writing in an affidavit and then we had a conversation and John told me this and that and the other thing. It it's not proper evidence. It needs to be I on such and such a date he said these words to me. Yeah. And then repeat exactly what your memory of the words were.

And and if you don't know, then there is no evidence. If you can't if you cannot say with any particularity Your best hope is to say, I can remember having a conversation, and the impression I came away was was this, but I can't remember the words that were spoken. It's really weak. It is. Yeah. It's probably better than saying nothing at all. That's right. Because it just thro there is a tiny crumb on the table. But the moment that um that someone says That's the barrister.

I know your eyebrows arch. I'm just sitting here sitting on the edge going right now. Any other impressions you'd like to tell me about? So um Okay. Yeah, so that's where we're at.

It was a really interesting comment you made a couple of minutes ago, uh and it sort of brings us back to where we came into this discussion, which is

Which is one of the starting points at the beginning of the case where the you know the council, the barrister for each party will say he look it will already been prepared. It will be a written document that says here's the outcome that we want and these are the reasons why we want him and this is what the evidence When you come through the case, you working your way through that hearing, it's always helpful to be constantly mindful of what it is you're trying to achieve by having a.

And then the other expression you said was to make the judge's job easier. Now I think that's critical because if you Have your case run in such a way that your your client's position is uncertain, um or you are uh fluffing around with the evidence, there's no clarity about

You're making their job difficult. And you know, they're busy officers of the court and they've got a lot of other things they need to be doing and and having to you know manage people who should know how to manage their cases is not something that's going to put them on side. So if you're the person that's presenting clear evidence, Preferably I I I agree with you, following wherever possible the rules of evidence except where it's you know a truly exceptional matter. Uh is the way to proceed.

Well that's um I if if I was a party in a proceeding, there is no way. I would not worry about the fact that oh yeah, well we might be able to get away with this we can throw I'd be too concerned. if I'm putting an opinion into like my own personal opinion, like I think that John's a bad parent. How is that relevant? Well That's the very first question. Regardless of whether the rules of evidence apply, how is your opinion of someone else relevant?

Here we're talking about experts, or you're going to move on to experts. Because what makes that person an expert? Well, I don't know. Probably not a parent. But I'm the I'm a party though. That's what I'm saying. I'm a party. I'm I think that's a good thing. A bad parent. You know, and so this is where regardless, regardless of these rules of evidence of whether they apply. Does or doesn't do it. Whether I think that he's a good man Is that relevant?

Unless of course they were by some kind of profession trade. A family consultant approved by the Attorney General's office and they happen to be in the in the in the family court squabbling over parenting issues. Heaven forfend that would happen. The the delivery of an opinion uh can still be relevant. Yeah, it can. But it has to be delivered by what we would call a court expert. So what sort of people would they be?

Oh so you've got your family consultants, psycholog psychiatrists and psychologists um in children's matters, you've got very Things like that. These are all specialist professions, aren't they? Who come to answer a particular question that might be at odds between the parties. Relevant. And typically a court would have appointed them prior to the final hearing anyway by to prepare that report and they then become the court expert and their opinion then becomes evidence.

Yeah, that's right. But don't just go and get Clients will go and get their own psychologist to prepare a report on them and they attach it to their affidavit. That's not evidence and it's not a good idea.

That report of that psychologist, if they're going to purporting to be an expert, they need to do a couple of things They need to set out the So that the court can say, well okay, there's been proper reasoning about opinion should be accepted because just because they're an expert they're not a No. And I suppose it's also the case that

experts' opinions are uh are simply still that. Yeah. And they they are all subject to a challenge. Uh by you know you know if you have, you know, your erudite counsel can always ask questions. If a family report writer, for example, makes a series of recommendations but they hadn't realized a certain set of circumstances. They hadn't known about an event that had occurred. The questions can be posed to them. Would your opinion change if you knew this?

Ac yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n. Well that's how I always I always They'cause because at that point when you're When the family report writer is parties all agree about the findings of and recommendations of the report writer, which is rare. They've already settled the case. But um if if that happens then one party

One their counsel is going to be um cross examining that report writer. And at that stage of the procedure. The court has not made findings of fact as to what has actually happened in the They haven't accepted one party's version over the other. It's still all up in the air. So just because the family report writer has written, I'm making these recommendations.

It may be that the report writer has simply just adopted the facts as per one of the party's version of events. Yeah. But if the c if the court decides to accept the other So it's really important that you put that your council put um that information and those that version of events to the family report writer and say, well what would your recommendation be in this situation?

And that's how you cross examine a report writer. It's not like you're trying to discredit those family report writers'cause they're all doing Not so much. discredit. It's more though to get the concession in line with what you want their evidence to say rather than you know, attacking them To open up the possibility of accepting your client's case. That's right.

far as the judge is concerned. Well Liza, I think we've we've about run out of time to go through much more on you know running a hearing and evidence and the rules of evidence and and all of the joyous things that come from that study. Uh so thank you very much indeed. And Thank you to anybody who has listened in. Much appreciated as always. Let us know any comments or feedback. We do appreciate that. And thanks very much for listening to Split Happens, the Divorce Down Under Podcast.