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Litigation - In The Witness Box

In family law proceedings, the parties to the litigation are not frequently required to give evidence orally, until such time they are called as a witness at a final hearing.

Prior to giving evidence at court, the witness should be aware of the information set out in documents prepared as part of the litigation. It is also useful to consider any contemporaneous notes or documents (including diary notes, letters, text messages or receipts) used in preparation of their affidavit. If the affidavit contains an error, then a correction can be made in court, prior to the witness providing their substantial evidence from the witness box.

When called to give evidence, the witness will be asked whether they wish to swear an oath (on the bible), or make a solemn affirmation (a non-religious oath). No matter which type of oath made, the effect is that the witness is bound to tell the truth. All answers must be honest, based on the best of their recollection or a contemporaneous document.

The witness provides evidence ordinarily in three stages:

  • examination in chief;
  • cross examination; and
  • re-examination.

Examination in chief is ordinarily begun by the legal representative who acts for the party for whom the witness’s affidavit was filed. The examination in chief normally confirms details of the witness (name, address and occupation), the date in which the affidavit was filed and raise any errors in the affidavit that must be corrected.

Then, the legal representative for the opposing party conducts cross-examination. The aim is to damage the witness’s credibility (to weaken such evidence provided in their filed affidavit) or obtain admissions that support their (opposing) case. It is therefore important for the witness to:

  • listen carefully to the specific question asked;
  • ensure the question is understood prior to answering;
  • answer the question honestly, in the most direct way;
  • resist providing any explanation unless a “yes” or “no” answer is an incomplete or misleading response; and
  • remain courteous to the judge and the legal representative, even if provoked.

A question asked in cross-examination may be objected to. If so, the witness must not say anything until the objection is dealt with by the judge.

After the cross-examination is concluded, the legal representative who did the examination in chief has an opportunity to re-examine the witness. At this stage, the witness may only be asked questions to clarify or provide an explanation to answers provided in cross-examination.

For advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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