Cross-Examining Your Ex

  • cross-examining your ex

cross-examining your exOne of the most disturbing experiences a family lawyer can have is to watch their client be cross-examined by their Ex-spouse/partner who is representing himself/herself.

You can imagine the distress that this situation can cause.  Some people represent themselves for the purpose of being able to confront their Ex in the witness box and ask them embarrassing questions or tell them how they feel. However, few people understand how to effectively cross-examine a witness and the old adage is … “He who acts for himself has a fool for a client”.

In July this year the Attorney-General released draft amendments to the Family Law Act which will ban victims of family violence from being personally cross-examined by the alleged perpetrator.

This change to the law is fairly controversial and many lawyers have spoken out against it.  However, my experience has been that few self-represented litigants assist their case by cross-examination of their ex-partner, and quite often damage their case in the eyes of the Judge.  Nonetheless, it is the right of every person to represent themselves, and we must develop a system which enables that to occur without traumatising the other party.

Suggestions have included:

  • having cross-examination conducted in a separate room,
  • having a Legal Aid lawyer do the cross-examination,
  • or having a pro bono or volunteer lawyer do it.

None of these is particularly satisfactory.  A Legal Aid lawyer or volunteer who knows nothing about the case is not likely to be able to pick up sufficient knowledge of it in the short time available, so as to make the cross-examination relevant and effective.  Inevitably the self-represented party will then blame the lawyer for not asking the right questions.

There is no simple answer to this dilemma and we will see whether the recently announced  enquiry into the Family Law system comes up with a solution…

Denis Farrar is a consultant in our Canberra Office

By |2018-03-15T09:26:49+00:00March 15th, 2018|

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