Guide to Presenting Yourself and Cross Examination
A GUIDE TO PRESENTING YOUR CASE TO THE FAMILY COURT
Giving Oral Evidence to Court at a Finding of Fact or Final Hearing
How to open your case - The Applicant goes first with an Opening Statement. The Applicant gives their evidence and then is subject to cross examination by the other side (you can ask questions of the other side about their case, statement and any contradictory or issues that are in dispute)
Your witnesses (if there are any) will go through the same process and give evidence, usually confirm (making any amendments to the statement) and giving oral evidence on any other relevant matters, they are subject to cross examination by the other side. Once the Applicant’s case has been presented, the other side (Respondent will open their case). The Respondent will give evidence and then the other side can ask cross examination questions of the Applicant.
Giving evidence - When it is your turn, you will be asked to give evidence (when you will stand or sit in the witness box and answer questions). A final hearing can take place in the judges chambers, when you stay sitting in your seat to give evidence. When you give evidence, you can have a copy of your witness statement and the agreed ‘bundle’ of documents.
Changes to your witness statement - If you have put together a witness statement, you will be asked to confirm that it is correct. If there are any points which you want to correct, tell the judge. If you want to add any points, you should ask the judge if you are allowed to do so. If it something new and important, you should tell the other parties beforehand. You will not usually need to read your statement out to the court, but you might be asked to do so.
Calling your witnesses - If you have brought someone else to give evidence as a witness, they will normally give their evidence straight after you. If you have a witness, make sure the usher (before the Hearing) and the judge (in the Hearing) knows this.
Your witness should have written their evidence in a witness statement. When you or your witness goes into the witness box you will only need to ask them whether their witness statement is true and complete. If it is not, give them the opportunity to say where it needs correction.
Be familiar with your witness statement - If you are cross-examined at the Hearing, the court will usually focus on the evidence you have already given in your witness statement. You need to know your statement well.
Tell the truth, the whole truth and nothing but the truth - This is the oath you will take at the beginning of giving evidence, and it is a good reminder of how you should answer questions. Be honest and truthful. Listen carefully to the questions that you are asked. You do not need to do anything more than give a simple, truthful answer. That answer will often be “yes” or “no”. If either of those would be an incomplete or misleading answer, say so. The judge will usually give you an opportunity to give a fuller answer.
If you do not remember something, say so. If you try to blag it, you will be caught out. There is nothing wrong with not having a perfect memory.
Do not make long speeches Do not talk about other things which do not answer the question. Do not repeat yourself. Do not argue with the person questioning you. Just give simple, truthful answers.
Keep a careful note You will not be able to write down everything a witness says but, if you can, write down short notes on the answers they give. If you have a McKenzie Friend with you, it is easier for them to take notes for you. If the witness says something important, write it down word for word. It is helpful to remind the judge of the words used later and to use them to make an argument when making your closing submissions
Do not use cross-examination to make a speech The purpose of cross-examination is to put your case across. You can make a speech and tell the court what you have concluded from the answers given at the end of your case in your closing submissions. If the witness says something helpful to your case, simply write it down. You can make an argument about it in your closing submissions.
Do not comment on the answers given When the witness has given their answer, move on. It can be tempting to say “Aha!” or “That’s right”. Remember, you are only supposed to be putting your case.
Ask closed questions When cross-examining a witness, it is best to ask closed questions and leading questions. This usually means questions with a yes/no answer, which ensures that you have some control over what the witness says. This means you can lead a witness up a path where you want them to go. When you ask open questions, the witness has time to think of answers and you can forget what path you are going up.
Where would you live in Australia?
You haven’t found anywhere to live in Australia, have you?
Only ask one thing at a time - Try not to string your questions together into one long question. It is too difficult for the witness to answer lots of questions at once. Only ask about one fact at a time.
You haven’t found anywhere to live in Australia or a school for Peter because you haven’t given any thought to Peter’s future have you?
You haven’t found anywhere to live in Australia have you? No
You have not got a school place for Peter have you? No
So you have not given any consideration to Peter’s future in Australia have you?
These are not carefully thought out plans are they? No
Ask questions in a sensible order You need to write down a list of questions in advance to make sure that you are prepared to cross- examine. Make sure that the list is in a sensible order. A simple way is to use a chronological (time) order.
Ask about any inconsistencies At times, a witness can say inconsistent things in different statements or make different comments to, for example, a CAFCASS officer (suggesting that one of the statements is wrong), or there will be evidence or a document which contradicts their statement. When you are preparing your cross-examination, check all of the other side’s documents for mistakes like that. If the contradiction seems important, make sure you ask the witness about it. When you do this, make sure you have written down the page and paragraph numbers of the contradictory statements. Ask them which statement is true.
Then say to them why you think one statement must be untrue.
Please look at page ten, in the second paragraph. Yes
You said that you have found several properties to rent, didn’t you? Yes
Then look at the CAFCASS report at page 46, third paragraph. Yes
You said that you have not found anywhere to live in Australia, didn’t you? Yes
Which one of these is true? Well we started having a look, but....
So you have no idea where you are going to live do you? Yes
Don’t argue with the witness In the above example, it would tempting to say, “You can’t know where you are going to live if you have not found any properties to rent, can you?” You just want to take Peter far away from me, don’t you? Do not do this. Save it for your closing submissions. You have made your point already. If you start making arguments to the witness, you will give the witness a chance to come up with a better answer. Stop while you are ahead.
Once that cross-examination has finished, that is normally the end of the evidence from that witness. You can ask a question or two of the witness if they have left something unclear, but it is rare that this is necessary, and it can make things less clear rather than more.