Barrister Giles Stapleton provides practical guidance on helping your client as a witness in a family law proceeding. To hear more on family law, Giles will present a seminar on the topic, Treatment of Post-Separation Contributions with Horton Rhodes’ Melinda di Condio at the Family Law Symposium on 20 June.
The most common witness you will deal with is a party to the proceedings. The most important is the party that is your client. The process of assisting your client to be the best witness possible in their own case, starts from the day you meet. From then, engage in a continuing process of advocacy: work towards presenting the case according to the elements of the claim being made or defended, supported by the best evidence available, in the most persuasive way.
Taking instructions from the client involves listening with a questioning ear. If something they say seems inherently improbable or inconsistent, it probably is. That sense comes from judgment that has evolved through life experience. It is a major part of the value a lawyer offers their clients. It is no good if it is not acted on with questions that solicit the clearest explanation of the client’s story.
If the wrinkles in a client’s story are not ironed out at the beginning and they swear incomplete or inconsistent affidavits in the first few phases of the litigation, it can irreparably harm their case in the future, despite how innocent or inadvertent it was.
The instructions sought need to answer the specific elements of the claims made or being answered. They need to cover the specific facts alleged. Lay opinion, argument or submission expressed by the client ought not to appear in affidavits. There is no place for them. They are not evidence. They are the most off-putting narrative to read: they are typically skipped over until a material fact is stated, or given no weight at all.
Clients should be told to avoid expressing outright animosity towards the other party while waiting to appear in Court. The former spouse or partner may be used to it, but the opposing solicitor or barrister may not be and, from experience, they can quickly change their views of the merits of their client’s case in the delicate negotiation currently taking place. One angry look can ruin everything.
Clients should give themselves the best chance at giving good evidence under cross-examination. They should be well rested, fed and absent distractions. Arrangements for collecting children from school is ideally done a day or two before, not at lunchtime during their evidence. They should listen carefully to the questions, answer yes or no when possible and avoid arguments with the cross-examiner. Experience suggests that being under the influence of any mind-changing substance while in the witness box is unlikely to yield any benefits for anyone. Having a clear mind to understand the opportunities and challenges within the case as it evolves is always going to assist the client more.
The prospects of a client’s success in the ultimate outcome is influenced by the quality of the case preparation from the beginning. Success may be extracting the client from a nightmare early or it may be persisting with a thorough determined approach to revealing lies and deceit over a long period. Having a clear balanced strategy from the beginning will assist greatly in deciding what to do at significant points along the way.
Advocacy is not just a barrister’s job – it’s everyone’s, the client’s too. It is greatly assisted by meticulous and disciplined preparation and by working as a team from beginning to end.
Please contact the author if you have any queries about this article or area of law.
Barrister Giles Stapleton is based at 9 Selborne Chambers in Sydney. His main practice areas are property, equity and family law. His family law practice is mainly property cases with increasing focus on rights of parties to a marriage as against third party creditors and trustees. He also frequently acts for third parties defending claims against them by parties to a marriage. He specialises in matters that involve family law, property law and equity questions between and in both the NSW Supreme Court and Family law Courts. Giles also accepts difficult parenting briefs and matters in other Australian States. His other practice areas include general civil litigation including corporate and commercial law and professional negligence. Contact Giles at gstapleton@selbornechambers.com.au or connect via LinkedIn 
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