Top five tips for court cross-examination in family law disputes

Introduction

In the two divisions of the Federal Circuit and Family Court of Australia, parties typically give oral evidence at their final hearing. This involves cross-examination by the other party, or a lawyer on their behalf, asking questions designed to elicit answers weakening the opponent’s case. It is a very stressful experience; however, careful preparation may minimise any ‘own goals’ and ensure your evidence is preferred.

Tip one – tell the truth

Family law disputes are often about events where the parties are the only witnesses, e.g. an alleged domestic violence incident in the family home. Therefore, credibility means everything when judges decide between very different evidence presented by parties.

Judges determine witnesses’ credibility based on the perceived truthfulness of their evidence. If one party is considered truthful while the other is not, the more truthful party’s evidence will likely be accepted.

Occasionally, to ensure your evidence is accurate, you may have to make concessions that are detrimental to your case. For example, if you have not complied with a previous court order, you are better off acknowledging the non-compliance and apologising, rather than skirting around the acknowledgment.

Knowingly making a false statement may also constitute perjury, which could result in penalties or criminal charges in extreme cases.

Tip two – brevity is the soul of wit

If possible, give short, concise answers to questions. If you can answer a question with a ‘yes’ or ‘no’ response, then you should. Cross-examination is not supposed to be a forum for witnesses to regurgitate everything they have said in their sworn material.

Far too often, parties embark on a long-winded spiel because they feel this is their opportunity to be heard. This is a bad move for several reasons, including:

• Judges are time-poor and dislike when parties take longer than necessary to answer questions. Frustrating the person determining your case is a poor strategy.
• Experienced cross-examiners allow the opposing party to go off on tangents when they think it will help their client i.e. they let you ‘waffle’ because they think it will harm your case, not help you.

Occasionally, an answer to a question requires a short explanation. That is perfectly fine. However, try to answer the question in as little time as you can.

Tip three – answer the question

Pay close attention to the question you are asked. Witnesses often focus on a few key words in a question, rather than considering what was put to them before answering. Failing to answer questions means they will likely be asked again until you respond properly, placing you under stress, and perhaps drawing the ire of the judge.

If you don’t understand a question or forget what was asked, it is acceptable to ask for the question to be repeated. It is far better to do this than guess what the question was and get it wrong.

Tip four – be familiar with your material

Leading up to your trial, you should thoroughly review your court documents filed in the proceedings. It is important that you understand exactly what you’ve deposed to in your sworn material, as you will be asked about this during cross-examination.

Occasionally, during the review, clients notice errors in their material. Rarely is this fatal. At the beginning of cross-examination, witnesses are given an opportunity to advise the court if there are any errors in their material they wish to correct. If you are familiar with your material, this is an easy fix and preferable to the opposing lawyer grilling you about mistakes or inconsistencies.

Further, as you will be asked questions based largely on your written evidence, you should provide answers that are consistent with your material (so long as this is truthful!). Providing differing statements in your written and oral evidence is at best confusing and at worst makes you an unreliable witness and given little to no credibility.

Tip five – never be aggressive

Being cross-examined is a highly stressful experience. It is normal to show nervousness, such as changes in voice pitch, shaking and sometimes crying. Judges understand this.

However, it is not appropriate when giving evidence to show aggressive emotions, including:

• raising your voice
• arguing with the judge or other party’s lawyer
• speaking over the top of others
• facial expressions, such as eye-rolling and head shaking
• physical behaviour, such as loudly banging documents on a surface.

Displaying aggressive behaviour when giving oral evidence is viewed poorly by judges. The behaviour can have disastrous consequences in cases where an alleged perpetrator of domestic violence gives oral evidence which suggests they cannot control their emotions.

If you have any questions about giving evidence in your family law matter, please do not hesitate to contact one of our experienced family lawyers.