Author

Alan Weiss

25th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.

It is difficult and nerve-wracking giving evidence in court.

Here are some rules to make it easier.

  • 1. If you think you will be intimidated by the Courtroom process, go to that Court a week before your case and observe what happens. It is very important to observe a witness giving evidence. This will help you familiarise yourself with the surroundings. It will also allow you to understand the logic behind the rules of giving evidence.
  • 2. You will have to either swear on the Bible or affirm that what you say is the truth
  • 3. The most important rule is to tell the truth. Do not embellish it or make it up.
  • 4. In most family law proceedings, evidence-in-chief is given in written documents called affidavits. Your lawyer may be able to obtain some short further evidence-in-chief by asking you some questions.

This is limited to you commenting on matters raised in the evidence of the other party or in respect of matters that may have occurred since you swore your affidavit. However, your oral evidence in court is being asked questions in cross-examination by lawyers for the other party.

Evidence in chief by affidavit (Family law rules 20042003 No .375 – Rule 15.05

  • (1) Evidence in chief at a hearing or trial must be given by affidavit.
     
  • (2) Oral evidence may be adduced at a hearing or trial only if:
  • (a) a witness refuses to swear an affidavit; and
  • (b) notice to that effect has been given under subparagraph 15.07 (2) (b
     
  • 3. The purpose of cross-examination is for the other side to attack, challenge, or weaken your evidence. It is essential, therefore, to accept that, as a general rule, you will not win your case with answers you give in cross-examination. The best you can do in cross-examination is not to harm your case. Answering questions in cross-examination is essentially a damage-control exercise.
     
  • 4. Most of the questions asked in cross-examination can be answered with a simple ‘yes’ or ‘no’. If the question can be answered with ‘yes’ or ‘no’, you should say nothing more. Remain calm, don't fight with the legal practitioner. Listen, pause and think before answering a question. Don’t mumble.
     
  • 5. Try not to react to attempts at personal or professional undermining (your legal representative should make any objections on your behalf.)
     
  • 6. Wait until the judge has decided whether your lawyer’s objection is valid. If the judge decides you should answer the question, but you have forgotten it, do not be embarrassed to ask that the question be repeated
     
  • 7. If there is more than one assertion in a question or if you did not understand or hear the question, answer each part separately. (You may want to ask the legal practitioner to repeat the question.)
     
  • 8. You are giving your evidence to the judge, not to the lawyer asking questions. You should look at the judge from time-to-time.
     
  • 9. Cross-examination is not a memory test. If you are not sure of the answer – say so. If you are asked questions about your affidavit or another document which is before the court – do not be embarrassed about asking to see the document. If you are shown a document which you have not previously seen, do not feel obliged to agree with its contents. Just because it is written down does not mean that it is true or that you have to agree with it. Similarly, do not agree with a proposition put to you by the other lawyer because you are unsure, intimidated, or he or she seems to be certain.
     
  • 10. The judge is entitled to ask you questions. Answer them as carefully and thoroughly as you can.
     
  • 11. Do not raise your voice or pull faces. Do not become angry or sarcastic. Do not use cross-examination as a “soap box” to express your views. In particular, do not use cross-examination to express your thoughts or feelings about the other party. Do not throw questions back at the lawyer questioning you.
     
  • 12. If there is a break during your evidence, you are not able to discuss your evidence with any other person including your lawyer. It is safest to have no discussion with your lawyer at all.
     
  • 13. Commonly, the judge will not give a decision at the end of the hearing. Instead, they may “reserve” their judgment. This means that a judgment will be given some weeks or months after the hearing. Your lawyer can explain the length of the likely delay.
     
  • 14. Be polite and courteous to everyone – including your spouse and their lawyer. Do not glare or point at your spouse. Even when you are not giving evidence but sitting next to or behind your lawyer, do not pull faces or express your views through noises. Communicate calmly with your lawyer by whispering or passing short notes.

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