Family law proceedings have a lot of moving parts. Presenting witness evidence is one of the most important. Examination-in-chief sets out your case. Knowing the rules and procedures of evidence is helpful.
Key takeaways
Examination-in-chief is when a witness provides oral evidence during a court hearing.
Court procedures and rules of evidence are governed by various laws.
Examination-in-chief can provide important evidence for parenting and property cases.
A family lawyer can help with witness preparation and legal strategy.
What is examination-in-chief?
Examination-in-chief is when a witness provides oral evidence in the witness box. This is done after they take an oath or affirmation. You give most evidence to the Court through an affidavit. However, examination-in-chief confirms the witness’s details and their affidavit’s contents. It can also correct minor errors in the affidavit.
Then, there’s a cross-examination by the other side. The respondent’s lawyer questions the witness’s testimony in an attempt to poke holes in it. A re-examination can help clear up those issues.
Leading questions
Leading questions suggest the correct answer. Here’s an example: ‘Isn’t it true that you contacted the respondent on 8 June 2026?’ These generally aren’t allowed during an examination-in-chief. It can be easy to ask leading questions by accident. This is why self-representation is risky. You may face objections that hurt your case.
Leading questions are allowed on cross-examination by the opposing party’s legal representation. When cross-examining, a skilled lawyer may use them to hurt a witness’s credibility.
Governing legislation
Provisions in the Family Law Rules 2021 and Family Law Act 1975 generally control things like the Court’s procedures and what an affidavit should look like. Admissible and inadmissible evidence in property matters is generally handled by the Evidence Act 1995. This includes matters such as:
Opinion evidence. Generally, only expert witnesses can voice opinions as part of their testimony. It may be independent evidence submitted in a court-ordered family report.
Hearsay evidence. Witnesses usually have to stick to what they directly know about. They typically can’t speak about anything they only have second-hand knowledge of.
Irrelevant information. Irrelevant evidence may be disallowed to keep the process focused on the issues at hand.
Past behaviour. A witness’s past behaviour isn’t usually relevant, unless it demonstrates a relevant pattern of behaviour. For example, previous incidents that show a pattern of family violence.
Confidential information. Some evidence may be inadmissible if it’s legally privileged. This includes confidential discussions with your lawyer, or anything said during mediation or family dispute resolution.
Section 102NL of the Family Law Act can change the rules of evidence for child-related cases.
Why it's important in Federal Circuit and Family Court (FCFCOA) proceedings
Examination-in-chief can be important to ensure the written evidence given to the FCFCOA is confirmed. What evidence is relevant will depend on the case.
Property settlements
Testimonies show the factual basis for the party’s financial circumstances. Your lawyer can help establish your contributions to the asset pool, comply with family law property settlement time limits, and demonstrate your future circumstances.
Parenting matters
Witness evidence has to concern the best interests of the child. Stay fact-based and avoid becoming emotional or argumentative. The testimony may involve demonstrating your ability to provide appropriate living arrangements and supporting expert evidence.
Child witnesses
Child witnesses giving evidence may be accompanied by a support person. Their involvement can depend on factors like the child’s age, their wishes, and their ability to understand that they have to tell the truth. It’s rare for a child to give oral evidence in family law proceedings, and a child can’t be called as a witness without the court’s leave. Where the court does give leave, the opposing side may be permitted to cross-examine the child.
How a family lawyer can help prepare for examination-in-chief
Solicitors play a big part in preparing clients for a final hearing. This can include various elements. They may help identify the facts that matter to the case and organise them in a well-structured affidavit. This can assist in keeping evidence in line with the Court’s procedures.
Your lawyer can prepare you for what you might face during the hearing. Review your affidavit with your lawyer to keep your answers succinct to avoid unnecessary information. You can also learn what to expect from the cross-examination.
Conclusion
Examination-in-chief forms the factual basis of a client’s case. Understanding what affects the admissibility of evidence and how it may be used is crucial. An experienced lawyer can help prepare an effective strategy.
Do you need assistance with family law matters?
Shanahan Family Law is experienced in managing complex cases with effective evidence and legal advice. If you need assistance preparing for court, contact us for a free discovery call.
