Being Cross Examined in the Family Courts: Practical Tips

The general rule in the Federal Circuit and Family Court of Australia is that all evidence is provided in written (affidavit) form, unless otherwise ordered.  In most cases, the only time a party or witness will sit in the witness box to give evidence is at a final hearing (trial), when they are “cross examined” on the written evidence they have already provided. 

Cross examination is where the other party (or their Barrister if they have legal representation), will ask questions to challenge your evidence or to elicit more information.  If you (or your witness) are not properly prepared for cross examination, what you say in the witness box may damage your case.

Here are six tips to prepare you for cross examination.   

  1. Tell the truth
    Before you give your evidence (both in affidavit form and in the witness box), you will have to swear an oath or give an affirmation that your evidence will be truthful. Any attempt to misrepresent the truth or to lie, is likely to catch up with you, and might lead to the Judge deciding your matter to doubt all of your evidence (in other words, if you are dishonest, you will be viewed as an “unreliable” witness).  You should be totally honest in all evidence you provide, so that you cannot be caught out and your case damaged by lies or omissions. 

  2. Attend Court as an observer
    Unless there have been serious allegations of child abuse, the Federal Circuit and Family Court of Australia Courts are open to the public.  Cross examination in real life is very different (and usually much less dramatic) that what you see on Law & Order.  You should make time in the weeks leading up to the hearing to go to the Family Courts so you can sit in and observe a trial.  If possible, try to attend a trial before the Judge who will be hearing your matter (the lists of matters Judges hear each day are published on the Court website).  Some Judges will ask their own questions to a witness during the trial whilst other Judges won’t. Knowing the approach your trial Judge takes will help you prepare and make you feel more at ease ahead of your cross examination.

  3. Review your evidence before the trial
    Prior to the trial you should read through your filed court material at least twice: Once to refresh your memory about your evidence; and once to ensure that there are no errors in your affidavit. If you notice there is an omission or an error in your affidavit material, you can advise the Court of this at the beginning of your cross examination.

  4. Listen to the question being asked to you
    If you are being asked a question, either by the other party, the Judge or a Barrister, listen carefully to what is being asked.  Most questions that you will be asked will require only a yes/no answer, or a very brief response.  Cross examination is not an opportunity to rehash your evidence or introduce new evidence.  Your evidence is already in your affidavit, and you or your Barrister will make the necessary submissions to the Judge.  You should keep your answers in the witness box as short and simple as possible, and not offer up additional information that might catch you out.  Don’t try to anticipate questions, or try to answer what you think they are really getting at.  Long-winded or off-topic answers will only annoy the Judge. If you did not hear or understand the question asked of you, ask the Barrister to repeat it, or ask them to clarify the part you did not understand.

  5. Be aware of your surrounds
    The courtrooms are designed so the Judge can see and hear everything from where they are sitting.  Be conscious of this both while giving your evidence and while sitting in the courtroom.  It is often said that the Federal Circuit and Family Court of Australia Courts are “courts of impression”.  Therefore, your “game face” needs to be on any time you are in the courtroom and you should assume the Judge is watching your behaviour and using that information to decide whether you are trustworthy or not.

  6. Make yourself familiar with court terminology
    The Courts observe a number of old-fashioned practices and language.  Familiarising yourself with these before your trial is important to show respect to both the court process and the Judge.  Some of these include:

    • If you are asked any questions by the Judge, turn to them when you answer the question and refer to them as “Your Honour”.

    • If addressing the Barrister or other party (if they are self-represented) from the witness box, call them “Mr/Mrs ______” or “sir/madam”.

    • Use the other party’s name when speaking about them (e.g. “Jane said…” or “Mr Smith did…”).  Don’t refer to them as “the Father” or “the Respondent”, as this can make you seem less personable.

If your Barrister stands up and says “Objection”, you should immediately stop answering the question.  The Barristers and the Judge will then have a legal argument as to whether the witness is required to answer that particular question.

If a witness continues to answer the question, after an objection has been made but before it has been determined by the Judge, then what they have said will be before the Court regardless of whether the objection was upheld, and can be taken into consideration.

These are just a few tips to prepare you for being cross-examined.  If you have been honest and thorough in preparing and reviewing your affidavit material, then the hard work is done.  If you have a family lawyer or a Barrister acting on your behalf, they will be able to help you ensure your evidence is consistent and you are prepared for your final hearing.