Preparing for giving evidence
If you are giving evidence in court you will be asked to give sworn evidence. This means swearing that the evidence you give will be ‘the truth, the whole truth and nothing but the truth’.
You can swear this on the bible or other religious book – this is called an oath. If you do not wish to swear an oath, you can give an affirmation. An affirmation is a non-religious commitment that your evidence is true.
In a court room you will be called into the witness box to give your oath or affirmation and your evidence. In an online hearing, you will be asked to give your oath or affirmation at the online hearing.
When you are giving evidence you cannot take your notes into the witness box. You may be able to refer to the witness bundle, which is copy of the bundle of evidence that has not been marked with any notes from you or the other party.
Examining evidence
Your evidence is examined from two points of view – from your side and from the other party’s side.
When it is examined from your side, usually your solicitor or barrister takes you through your evidence. This is called giving evidence-in-chief. They ask you questions to emphasise the most important points they believe the judge should consider.
If you are not represented, you may wish to have a McKenzie Friend take you through your evidence – see Get support - McKenzie Friend. You have to obtain the judge’s permission for this. If you do not have a McKenzie Friend, the judge may ask you questions if there are points that they wish to clarify or obtain further detail.
It is difficult as a litigant in person to take yourself through your own evidence, so the witness statement may be used as your evidence-in-chief.
The next stage is for the other party to ask you questions to test your evidence. This is called cross-examination. The solicitor or barrister for the other party may ask you questions. If the other party is not represented, they may ask questions directly. The judge may ask questions too.
The other party may give their evidence too and your side will have the opportunity to cross-examine them – see Preparing for cross-examination below.
Think about the questions you may be asked and how to respond
Prepare for giving evidence by thinking through the questions you may be asked and how you will respond to them. Refer to the evidence you have provided in your position or witness statements and think about how you may be challenged on your points and your answers to these challenges.
Preparing for cross-examination
Cross-examination means the oral questioning of a person’s written evidence.
In family cases, cross-examination mainly happens at a fact-finding or final hearing. Anyone who has provided evidence or information in the case can be called by the judge to be cross-examined. This includes the applicant, the respondent and other witnesses or experts involved in the case.
They are questioned by both parties, and the judge may ask questions too. Careful preparation of questions for cross-examination is recommended.
If you are not represented, you will ask the witness your questions. You will have to prepare the questions very carefully and make sure that they are appropriate and relevant.
The judge can also ask questions. If the judge intervenes, you should wait patiently until the judge has finished and asks to you continue. You should not interrupt the judge.
The judge may decide that any examination or cross-examination will need to be tempered or vetted. This may be in cases involving allegations and where the judge considers it inappropriate for one or both unrepresented parties to cross-examine the other. The judge may also intervene to ensure the questioning is relevant and may ask to see questions in advance.
If you are called as a witness, you will have to answer questions that are asked by the other party if they are not represented, or by their legal representative if they are represented.
Cross-examination is one of the most difficult processes in a family case. It can be stressful. Here are some tips on preparing for and conducting cross-examination:
Prepare a list of questions
Prepare questions to ask the other party that address the issues relevant for the Order you are seeking or responding to in relation to your child.
Where parties disagree on issues, it is a good idea to go through the position and witness statements of the other party. Note down what points they have written that you do not accept as correct. Then you can ask them a question to challenge them on this point.
If you have asked to cross-examine the Court Children’s Officer (CCO) because you disagree with what they have written in the CCO report, then it is important to be able to refer to their report. You should know the points in the CCO report that you disagree with and ask questions on these points. For more about the CCO and the CCO report – see The Court Children’s Officer.
Keep notes of answers
While you question the other party or witness, try to keep short notes of the answers they give. If you have a McKenzie Friend, they can take notes for you – see Get support - McKenzie Friend.
Write down anything important word for word so that you can refer to it later. In the Family Proceedings Court, there is no audio recording and there is no court official taking a written record of the hearing.
When you question the other party, only ask questions relevant to the Order you are seeking in relation to the child. Do not try to make your own points. Your position statement and witness statements have set out your arguments.
The cross-examination is the opportunity to obtain evidence to support the points you have made in your statements which can be summarised or referred to again later, when you are presenting your final arguments to the judge.