Witnesses are not allowed to hear the testimony of earlier witnesses.
If you can get your McKenzie Friend on the stand as the first witness at the beginning of the trial, then after he’s been excused, you can get his help as a McKenzie Friend. If your McKenzie Friend is there while any other witness is being examined, then no he won’t be able to be called to give evidence.
Part 7 on…
Remember, success in litigation depends on three things: the facts, the law and the presentation; that is:
1 how strong and reliable your evidence is to establish the facts;
2 whether the law can be used in your favour;
3 how clearly and coherently you present your case.
So with that in mind, here’s number 7…
This is a 2 part idea. Positive and negative. THIS IS YOUR CASE. This is who you call as a witness and who you don’t. This is what you ask your witnesses and what you cross-examine your ex’s about.
You have your application for parenting orders (either as applicant or respondent), all your documents, videos, affidavits, and witnesses there. How does the law apply to all that. Or more accurately where does your application and all evidence fit to the law to prove your application, to answer every single question / point of law that the Judge must consider?
How does the facts (both good and bad) show the judge that your parenting order answers these points better than your ex’s parenting order does?
A Quick tip.
Write a closing argument first, showing how everything in your case proves, your parenting application answers the sections in Part VII — Children.
List out every witness and what they’re going to say, as if they said it, every video, recording, document, receipt, parenting course certificate, birthday and fathers day card, under each section showing how they prove those key points / questions. List out what you have from your ex or what you think she will try to bring as evidence to prove her application under these sections.
Look it over. You have the facts. You have the law. You have the facts answering each section of the law.
Can Part VII — Children (the law) be used in your favour?
If yes, you have your case and you can win. Not easily. Never easily. But, you can win.
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Part 6 on…
Remember, success in any litigation including your case in the Family Court depends on three things: the facts, the law and the presentation; that is:
So with that in mind, here’s number 6…
The Family Law Act 1975 (Cth) Part VII — Children must become your bible.
A quick history lesson on the Act:
The law in relation to parental responsibility was changed by the Family Law Reform Act 1995 (Cth) (“FLRA”). This Act replaced part VII of the Family Law Act 1975 (Cth) (“FLA”) and changed the terminology that is to be used when dealing with children’s matters from “guardianship”, “custody” and “access” to “specific issues”, “residence” and “contact”. It also introduced the terms “parenting orders” and “parental responsibility”.
The FLA has most recently been amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (“FLASPRA”), which commenced operation on 1 July 2006. This amending Act changes the terms “residence” and “contact” to become “living with”, “spending time” and “communicating with” and attempts to send out strong messages, particularly in relation to shared parenting after separation, except of course the judges aren’t listening.
So you must know the sections in Part VII — Children:
Section 60CC How a court determines what is in a child’s best interests.
This is the blueprint for your application. It must answer every one of these points, positive for you and failures of your ex.
Section 61B Meaning of parental responsibility.
This DOES NOT mean equal time. It means equal decision making for major long term decisions, like no allowing the drugging of your son because he’s a defective girl in school who won’t sit still, ah, I mean he is mentally ill with ADHD [NOT!]. Or schooling, or religion, or other medical situations like operations and such.
Section 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances.
This is the section that deals with time spent with your children. These two sections are the questions that have to be answered in the best interests of your child in your application.
Read through the entire Part VII — Children. You’ll get an understanding of what you have to answer, but I warn you, it’s a horror story.
Also the Family Court site has a lot of this is simpler English. Read these first. Then tackle the Act.
And remember, parenting first, then financial. If you don’t have an agreement over shared parenting, drag your heels over the finances / assets negotiations. (Don’t say no outright. No ultimatums. Just slow things down.) Time is the great leveler in any negotiations.
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Asking your witnesses the right questions, the right way can win your case. Must see.
This is so cool I had to share it.
I was looking for some videos on direct examination, when I came across this:
It’s a video where an US law professor explains and gives important tips on how to ask questions of your witnesses so that you get the important evidence you need to be heard and understood, across to the judge. How you prepare for the witness. How to make sure the evidence they have for your case is fully presented to the judge. Lots of very useful tips.
Now the professor is talking about a traffic accident case and a jury, but the PRINCIPLES he gives you applies directly to you, your family court case and your witnesses.
Watch it for yourself, and then give it a try!
I did just the bullet point list and got both the judge and the opposing counsel to concede a major point that pushed the case completely in our favour in a recent Guardianship hearing where I was the McKenzie Friend. It was a huge win.
Let me know if you get the same result!
Part 5 on…
Like we discussed in Part 4, legal disputes are often about the facts.
The disagreement might be about what you said or promised to do, whether you did it, how you did it, why you didn’t do it, what care arrangements you can give your child, whether your child is denied a “meaningful relationship” with you, whether you were properly notified about a problem, whether your ex was willing to negotiate child care arrangements in good faith.
These types of issues are all issues of fact.
Disputes about the facts are decided on the evidence presented by both parties. Most cases are easily won or lost on the strength of a party’s evidence. So it is essential that you use reliable evidence to support the facts that you assert (say is true) or any fact that may be disputed.
Remember, as one member put it,
“Expect her to lie. Expect them to believe her. Expect no fairness. Expect to need mountains of evidence to prove your case.”
Evidence comes in many forms: verbal, written, even pictorial. Just about anything you can think of that can verify something can be used as evidence. For instance, hand-written agreements, formal contracts, invoices, receipts, quotes, bank statements, telephone records, government documents, expert reports, scale models, plans, letters, diary entries, journal entries, photos, videos, the testimony of witnesses, can all be used as evidence.
Even notes taken at the time of an event might prove valuable as evidence later on. This is why it’s important throughout the preparation of your case to keep an accurate record of all developments. Obtaining the right evidence can be time consuming so you will need to collect your evidence as soon as possible. Also, with all evidence you wish to use, make sure you look at it very carefully.
Does it say what you expect it says?
A word of warning: quality not quantity is what counts. Quality evidence ties in with exactly what you are asserting and directly verifies one or more elements of your case.
If it is indirect, vague, ambiguous or spurious, reject it and try if possible for better evidence. Sometimes though, evidence that merely favours rather than confirms your version of the facts may be the best you can get. Although this isn’t ideal, it might be more than your ex has.
Above all get witnesses, especially professionals (teachers, doctors, therapists if any) involved with your former partner and kids.
Potential witnesses include: extended family; school professionals; neighbours; parent volunteers; day care, medical professionals (as in your GP); adult activity leaders.
Other than court-appointed professionals (best avoided wherever possible), people who see you with your children and/or otherwise know you personally are going to be your best witnesses.
Your Witness List must be exhaustive.
Remember, not everyone will support you, nor will they be available when you need them. So think of everyone you can. Then work out what facts they can prove by their testimony.
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Part 4 on…
You know the facts. You know the whole story. You know too much.
So if you’re representing yourself, you have to realise that what’s important to you is not necessarily what’s important or relevant to your case.
This ties in with 6. KNOW THE LAW. You have to know the facts that are relevant to your application and pare down your story to just those facts.
A good way to do this is to write down each fact in a single bullet point line or even a single sentence. If you can’t do that, then you have too many facts tied up in your single idea/explanation. They must be separated out. You don’t need the “story” that goes with each fact yet, you just need what was done, by whom, when;
for example:
ex prevented children from substantial and meaningful relationship with father (you) from date to date. (Child abuse)
I, the father, bathed, clothed, fed the children breakfast of eggs and toast, made and packed school lunches of sandwiches, juice, snack, took them to school daily from date to date. (Primary care)
I, the father, collected the children from school, provided snacks, helped with the homework, cooked dinner, got the children ready for bed, and read them a story. Lights out at 7:30 PM Monday to Friday from date to date. (Primary care)
I, the father, have successfully completed a parenting course with Family Relationships Centres. (Primary care)
I, the father, have sought and received family counselling from Family Relationships Centres. (Primary care)
From here you can make sure your affidavit has these facts and include the evidence as annexures.
This is your case; your reason for applying for the parenting orders you’re seeking from the court. If you just “tell the whole story” you’ll have a lot of irrelevant stuff (as far as the court, your application, your case is concerned) that can be attacked and used against you, used to prove her case or your relevant evidence struck out with the irrelevant stuff.
So skip the story and like the detective from Dragnet always said, “Just the facts Ma’am. Just the facts.”
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Join McKenzie Friends Club (http://familycourtsecrets.com.au/)
Part 2 on…
You’re going to have to “evidence” your life from here on out. Everything you do with or for or about your kids must be recorded/documented. Every interaction you have with your ex both bad and good must be recorded/documented as it happens and date-stamped as soon as possible after the event or interaction. And that means most importantly, KEEP A JOURNAL!
The prima facie reliability of contemporaneous documents.
Especially in the Family Court, judges consider that documents brought into existence close in time to the events they record will often be more reliable sources than the recollections of witnesses related orally in court months or years later.
That means, your journal entry created the same day or the next day, is more reliable and therefore truer than anything a witness says from memory, especially as is normally the case, months or years later.
In McKenzie Friends Club’s MyCase case management system, there is a journalling function that creates time and date stamped file notes or journal entries that are acceptable as evidence.
Often in trials, a chronological bundle of documents (like your journal entries supplemented with images and possibly video) will provide a sound and relatively uncontroversial structure for the evidence, and the documents will often afford important and significant bases for finding facts where there is controversy.
So if you have documented every interaction with your ex, every time she has stopped the kids from seeing you and every time you followed through with access, it all becomes truer than anything she can say on the stand or in an affidavit to the contrary.
So your journal entry or MyCase file note IS evidence of what occurred and will be believed more than somebody remembering from the stand. MyCase file notes are relevant evidence for the judge’s assessment of the probability of the existence of a fact in issue and as such become your second witness when attached to your affidavit adding weight and credibility to your testimony.
In the Family Court, with its feminist jurisprudence, the average guy starting out has a 75% chance of losing. You have to prove every fact that you say and documents created (brought into existence) close to the time of the event are credible, reliable proof.
Your My Case Journal is the Backbone of Your Case! If done properly and consistently, your My Case journal becomes the heart and soul of your case, especially your parenting case.
During the trial, your My Case journal will be a valuable source of events, dates, and patterns of behaviour. Most importantly, your My Case journal will discredit fabricated testimony and lies you can expect from the other side. Your My Case journal should also contain surprises to keep the other side off balance.
With details at hand, you can deliberate on these entries for accurate summing up.
During the trial, you will be able to present answers during questioning (especially cross examination) which are confident and specific. Your former partner on the other hand, will probably turn to, “I don’t remember” type remarks when questioned about awkward areas, which makes her a less credible witness.
So, keep accurate records. AND keep a journal in a format that will be acceptable in court as evidence.
Pen and paper done incorrectly, and it’s easy for your ex’s lawyer to object to it being accepted. MS Word file suffers from similar “credibility” issues and can be knocked out.
MyCase journal file notes are individually time and date stamped that can’t be tampered with by you, so your ex’s lawyer is stuck trying to object to it. They can’t use the old stand-by of, “you just wrote this all up yesterday, didn’t you?” to discredit you. MyCase is a “sound and relatively uncontroversial structure for the evidence”. So use it and win.
Stay tuned for the next installment…
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Success in litigation depends on three things:
that is:
To make the most of these three ingredients for success there are some important rules, learnt the hard way by Australia’s best and worst litigation lawyers. As you’ll see, to use them you don’t need a law degree. Here they are:
The first thing to do is contact family relationship centres and get parent “counselling”. Start a parenting course. Get the certificate. It’s also vital for properly preparing you for a Family Report. If you don’t speak the language family professionals use, and you don’t acquire some new, higher skills for this new situation, you can easily end up with a negative evaluation, resulting in limited supervised access instead of what could have been full shared parenting. Yes, the difference can be that great.
As one member said,
“One of the first things I did after separating was to seek relationship counselling. I went to directly to our local family relationship centre; began talking to them first, and initiated the process to create a family/co-parenting plan. Best move I ever made. Now I have shared custody (week on/week off split) of my child.”
Stay tuned for the nex installment…
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Rochelle Macredie B.A. B.Sc LLB
Solicitor*
The advice in the following article relates primarily to the law in New South Wales. Interstate readers will need to make their own enquiries in order to ascertain whether the legal situation is the same in their jurisdiction.
First of all, we need to define two terms used. The first term is “Applicant” and the second is “Respondent”.
Applicant means the person who applies for an order in this context.
Respondent means the person on whom the order is made.
An Apprehended Violence Order (“AVO”) is an order made in a Court to protect a person from actual or potential violence.
In the State of New South Wales, they are of two basic types, namely, apprehended domestic violence orders which relate to violence between parties who are in a domestic situation and apprehended personal violence orders, which relate to parties who are not in a domestic situation. The same concept is available in other States within the Commonwealth of Australia.
If your ex-spouse applies for an AVO against you, do turn up at court and do defend that application, otherwise you may find yourself in a position where you lack credibility. Don’t presume that just because you’re innocent that your innocence will be sufficient to protect you.
An excellent reference in legal matters is to be found in the Law Handbook (13th Ed) Redfern Legal Centre Publishing 2014. This book is available for retail sale, free online and is also to be found in most reference libraries.
*Rochelle Macredie is a Solicitor in NSW working with McKenzie Friends. She practices with the Sydney firm Oliveri Attorneys and can be contacted on 0407 896 832 or by email at rochellelawyer (at) gmail.com
The advice in the following article relates primarily to the Evidence Act (Commonwealth) and is a general explanation of the principles of cross-examination. It is not intended as instruction on how to carry out that process as that is beyond the scope of this article. If you are self-represented in a family law matter, then you will need to do your own research as the topic of cross-examination is one upon which weighty tomes are written. This article, merely gives an outline of the process so that you will have some idea as to what to expect. We suggest that you look at the Family Court Rules as well.
Simply put, cross examination is the questioning of a witness for the other side with a view to either getting that witness to say something that is favourable to your case, or to discredit the testimony of that witness.
The aim of cross examination is to present the evidence in a new light. A word of caution should be sounded here, that being, if you don’t do it properly, then it can strengthen the other side’s case.
This refers to the subject matter of cross examination, for example, whether a person did something, said something and so on.
This refers to the question as to whether the witness is believable or not.
The distinction between the two matters is sometimes very difficult to make. Put simply, the fact that a witness cannot be believed in respect to their evidence, does not necessarily automatically mean that the opposite is true.
If you are challenging something a witness said and wish to cast doubt on that thing then if you failed to put it to your witness in cross examination that a contrary position was true, you will not be allowed to raise this position in your final summation. The bottom line is make sure that you suggest the contrary position to the witness who you are cross examining!
The idea of cross examination is to listen very closely to what is said by the witness for the other side and to use that evidence to support your own case. It may well be, that a particular witness for the other side’s evidence is favourable to your own case and so there may well be no need to cross-examine. On the other hand, sometimes, these witnesses can be persuaded to bring out further evidence that is useful to your case. The situation, where the other side’s witness says something that is damaging to your case, is a situation where you definitely cross examine. There are two alternatives here. It may well be that the witness is mistaken, or alternatively, it may be that the witness is opposed to you. Telling which is the hard part. Here you have a choice between attacking the witness’ competence or attacking the witness themselves, that is, the witness’ credibility.
This relates to the witness’ capacity to observe the situation to which they are giving evidence. It involves the five senses, that is, sight, hearing, touch, taste and smell. There is however, also, the question as to whether the witness was able to accurately perceive the situation in their circumstances, for example, whether it would have been possible, under the weather conditions prevailing at the time, to perceive the matter to which they are giving evidence. There is also the question as to the quality of their recall, that is, for example, whether time has dimmed their memory.
Simply put, this means:
Is the person telling the truth or are they telling some distorted version of events that favours the other party?
There is a very tricky rule here. And that is that, answers on collateral matters must be taken as final in cross examination. That is, if there is an issue, raised in cross-examination that is peripheral to the issue that is not the main issue, then you have to take the witnesses’ answer as final, even if you are pretty sure they’re lying.
An example of this would be, in the case of Harris v Tippet (1811) 2 Camp 637, where a witness was asked in cross-examination whether he had attempted to dissuade one of the plaintiff’s witnesses from attending. He denied that allegation. It was held that the plaintiff could not recall the witness to cross examine them as to this point.
Obviously, determining whether something is collateral or not, can be very difficult at times. The case of the Attorney-General v Hitchcock (1847) 154 ER 38, tells us that if the matter is something about which you would be able to give evidence in its own right, then you are entitled to contradict the witness, that is, you are entitled to cross examine.
Now, just to complicate matters, there are four exceptions to the rule regarding cross examination on collateral matters. These are:
A. Competence
B. Credibility
Know when to stop
Have a clear idea in mind about exactly what you need to elicit from each witness and when you get there – stop. Don’t be tempted to ask that one question too many!
Use ordinary plain language
You do not want to have to explain questions to witnesses. Remember that most are not experts in law, so just ask your questions simply so that the questions will be readily understood by the witness.
Ask only leading questions
You should guide the witness as to which answers you want. “You then shut the door, didn’t you?” is an example of this as opposed to asking, “And what happened then?”.
Ask only questions to which you know the answer
Do not be tempted to go on what is referred to as a “fishing expedition” or you may get more than you expected and the results may well be quite damaging to your case.
Listen very carefully to the witnesses answers
Listen to what is said in order to ascertain how far towards your final goal the witness’ evidence has taken you.
Don’t argue with the witness
Let the witness trap themselves. Once they have don’t question any further. Refer to the inconsistency with what they have said in cross examination in your summing up.
Do not allow a witness to repeat their evidence
Do not do this as this allows the court to hear the same evidence twice and may well have the unintended consequence of creating a false notion of credibility.
Never allow a witness to explain anything
This is especially true when the witness gives an answer that is useful to your case. If they give this sort of answer just stop your cross examination on that issue there in case they go on to explain things and destroy your advantage.
Avoid that one question too many
Once you’ve got what you want from a witness stop cross examination. If you keep going, you may elicit something favourable to your client’s case.
Save the ultimate point for your submission
If you have prepared properly, you’ll know what you want to elicit in cross examination before you start. Once you’ve got your results don’t embark on further cross examination. If you can find it (at your local or university law library) I recommend Professor Irving Younger’s The Ten Commandments of Cross Examination Video.
Rochelle Macredie is a Solicitor in NSW working with McKenzie Friends. She practices with the Sydney firm Oliveri Attorneys and can be contacted on 02 9550 0853, 0407 896 832 or by email at rochellelawyer@gmail.com
