Credibility issues are a major part of every court proceeding, particularly in the area of family law where so often proceedings are “he said, she said” in nature. Amid often very conflicting testimony, a judge may need to determine who is more likely to be telling the truth.
Credibility is absolutely key in family law proceedings. The way that you answer questions in court can easily damage your credibility and affect the outcome of your matter. A judge who finds your credibility lacking will be much less likely to give your evidence the weight you think it deserves or to ultimately find in your favour.
It’s imperative to give honest and open evidence. Obviously this means not telling outright lies, fabricating evidence or even just exaggerating the truth. When there are inconsistencies in your evidence or you are caught in just one lie, doubt could be cast over all your evidence. It also means not using your evidence as a chance to try to make your ex look bad. And it means honestly acknowledging the less favourable aspects of your own case, rather than trying to minimise or make excuses for your behaviour, or simply omitting such facts from your evidence.
Credibility in family law in practice
If we take a look at a recent matter in the Family Court and Federal Circuit Court of Australia, given the pseudonyms Surace & Surace, you’ll see just how crucial credibility is in helping the court determine an outcome. In this property proceeding, the judge ultimately decided it was necessary to treat the wife’s evidence with “extreme caution”. The outcome of the case was that the husband was awarded 85% of the property pool, while the wife only received 15%.
This was a complex property proceeding between a man and a wife, each with children of previous relationships, who had been in a relationship of “significant dysfunction”, characterised by high conflict. The husband suffers mental illnesses linked to the tragic death of his five year old son of a prior relationship. He had left the family home and was now living in a storage container. Although the wife alleged family violence by the husband, and sought to make a Kennon argument, the court determined there was no evidence to support this.
The wife’s credibility issues
The judge, who “closely observed the wife in the witness box”, found her evidence to be unreliable for numerous reasons. Her evidence was often contradictory, “vague and unsatisfactory”, and she made many assertions without having any evidence to support them. She gave a version of events that the judge found to be “unreliable and designed to paint the husband in the worst light”.
Her evidence was “misleading at best”. As an example, while she made unsupported allegations of violence against her husband, she neglected to mention a major event in which her daughter had inflicted a violent assault on the husband. Said the judge:
“The wife’s answer to the proposition that the assault by her daughter on the husband was nowhere in her affidavit was incredulous: “I have left a few things out sir.”
She was non-responsive to many questions and unable to recall incidents and transactions that were unfavourable to her:
“I formed the view that the wife was loath to answer questions in a way that would not assist her case. I found that the wife was only able to recall specific parts of incidents that would assist her case and not other parts that may have assisted the husband’s case.”
Similarly, her son from a prior relationship gave evidence, some of which was “evasive and designed to ensure that his evidence supported his mother’s version of events.” His evidence, too, was approached with caution by the judge.
On the other hand, the husband was found to be a credible witness. His evidence during cross-examination was consistent with his affidavit evidence, and he “answered the questions asked of him as best he could”. Importantly, he made concessions during cross-examination, rather than try to deny particular things.
And while his memory issues meant he could not always recall particular information (such as dates of attendances on medical practitioners), he was “forthright” in admitting to the court when he could not remember particular events.
The way you conduct yourself at trial
It’s not only about how you give your evidence, but also how you (and your legal representative) treat your ex during your trial. In this matter, the wife’s trial conduct was described as “unfortunate and unnecessary”. There had been prolonged cross-examination of the husband in relation to his mental health and the death of his son. The judge said,
“The questioning did not need to involve the repeating of the fact of the death of [the son], but did.” The questioning using “unnecessary and inflammatory language” evidently caused the husband “significant distress”, and the judge had to intervene to stop the line of questioning, and adjourn the trial to allow the husband time to compose himself. The judge noted the questions were “designed, in my view, to obtain a reaction from the husband”, but the outcome was merely that the judge found the husband’s reaction “reasonable and understandable”.
Actions that speak loudly
Not only was the wife’s evidence and behaviour at trial called into question, but some of her other behaviours also spoke loudly. For instance, the wife had thrown away all the husband’s possessions — including a photo of his deceased son – all without providing any notice to him and giving him the opportunity to collect his items, including those of obvious sentimental value.
This is a very good reminder if you are going through a marital breakdown and are in possession of your ex’s personal belongings: Think twice before throwing away, selling or destroying any of your ex’s personal belongings that you may be holding, even if doing so simply seems practical to you. Such behaviour can easily come across as vindictive, spiteful or even cruel. Always afford your ex the opportunity to collect their belongings, just as you would expect them to give you that opportunity.
As you can see from the above, it’s vital that you preserve your credibility in the eyes of the court when so much is at stake. So it’s important that you focus on presenting the positive facts that support your position, rather than dwell on trying to disparage your ex. It’s just as important that you acknowledge any negative elements that may apply to your case, making honest admissions where necessary, rather than trying to conceal or downplay such evidence. This will go a long way towards helping the court decide you are a credible and truthful witness.
Need help giving evidence in family court for parenting or property settlement proceedings? If your matter will proceed to final hearing and you will be giving evidence before a judge, do make sure you enlist the support and guidance of appropriately qualified family law professionals.
Here at Alliance Family Law, our lawyers can assist you with the full range of family law matters, whether you are going to court, or you are interested in resolving your matter privately through alternative dispute resolution processes like collaboration, mediation and arbitration. Please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors at Alliance Family Law on (02) 6223 2400 to arrange a free first conference.
Please note our blogs are not legal advice. For information on how to obtain the correct family law advice, please contact Alliance Family Law.
