QLD Asking Duty Lawyer to Cross-examine at Contested Hearing?

[Migz]

Hi All,

Just after some info regarding a contested hearing. I have been advised (via Google) that as I am the respondant to an upcoming Contested Hearing in Family Court, I am unable to cross-examine the aggrieved if I am self-representing.

Therefore my question is, can you have the duty lawyer on the day do the cross examination for you? Are you able to give them a question sheet on the questions to ask the aggrieved? Or that isn't how it works?

Nothing like being treated guilty until proven innocent... Gotta love the justice system and Family Law in this backwards country.

 

[AllForHer]

I agree, this law is an absolute perversion of the course of justice, but we're living in a world of social panic about domestic violence, so we have to work with what we've got.

For clarity, you can cross-examine the aggrieved, except where the Court, by its own initiative or at the request of the aggrieved party, orders that you're not permitted to do so, and it may only make such an order if it is satisfied that cross-examination is likely to cause the aggrieved to suffer emotional harm or distress, or to be so intimidated as to be disadvantaged as a witness.

In short, the aggrieved has to ask not to be cross-examined by you, and the Court has to decide of its own accord whether the request will be allowed or not. You'd be surprised how often that request is refused.

If such an order is made, the Court must notify you and provide you a time frame in which to advise the Court which of the following three options you've decided to go with:

• You've hired a lawyer to represent you;
• You've hired a lawyer to conduct cross-examination of the aggrieved on your behalf; or
• You won't be cross-examining the witness.

But don't get ahead of yourself. Wait until the Court tells you that it won't allow you to cross-examine the aggrieved in person. There are many reasons such circumstances may never come to pass - the aggrieved may file no such request, for example, or on reading the affidavit material, the Court may find the risk of emotional harm is not reflected in the evidence.

If the Court does notify you that you can't cross-examine the witness, you'll be given time to decide a course of action, but for now, just prepare as though you will be conducting cross-examination in person.

 

[AllForHer]

As a side note, I hope you've included in your affidavit the fact that there are concurrent proceedings on foot for parenting orders. There's no law protecting parties from being cross-examined in parenting matters, so it's unlikely to refuse cross-examination when there's a super good chance the ex is going to be cross-examined by you in the FCCA anyway. I also think most judges are suspicious of any DVOs filed while parenting proceedings are on foot - they're not oblivious the efforts of desperate parents to get leverage over the other for parenting orders.

 

[Migz]

Thanks for your indepth response Allforher. As the hearing is 2 weeks away, and the magistrates court runs a little differently to the FCCA, I wish to file additional information in relation to this court case, and a supplimental Affidavit.

When is the cut off date for filing for the magistrates court of Qld?

 

[AllForHer]

When the matter was set down for trial, you should have received orders from the Magistrate for when evidence needed to be filed by. This is the time frame you must work on.

 

[sammy01]

Forget it... She will refuse to answer any of your questions and as you've outlined the judge won't make her. She will claim she feels intimidated and that is all it takes. Justice?

 

[Migz]

Thanks again to the both of you. Well I took it a step further and rang the clerk of the courts. I asked straight out what is the last day I can file by... she said its all in the paperwork that you would of been sent. I said I have a court date and thats all... she asked for all of my info...went away come back...then played the "I cant answer any of your questions as its a closed court matter"... i said "hang on a second as the clerk of the courts you can legally tell me what the last day of filing is?" She goes "there are no orders attached to your file"...i said "thank you, so I can file as I see fit"... she then hung up on me...ahhh I love the Queensland Justice System....

Migz

 

[Rod]

Filing dates vary. You've confirmed it is a Magistrates' Court, but what kind of contest or charge (assault, AVO, other) is involved and who is the other party (State or ex)?

If it is criminal charge you may not need to file anything. Take evidence and present it on the day.

Being a contest hearing, you should already have had a directions hearing where you would have plead not guilty. Is this correct?

You can go to the court house and ask them about the procedure. How well they answer is pot luck and depends on the person you get to answer your question. Possibly ask nicely for a court registrar if the counter person can't or won't help.

 

[Migz]

Thanks Rod... and I'll give you the background... its a contested hearing for a protection order. Where my 1 year old daughter was not named on the "initial" protection order... nor named on the "interim" protection order... but then her name has miraculously appeared on the "final" protection...yet without proper procedure taking place...no notice vary was ever filed by the ex... so the contested hearing has come about as I have had to go through the proper legal channels and file an application to vary. Yes a directions hearing took place and all the happend was ...the ex was asked if she would take her name off... she said she would not... judge said ok this will go to a contested hearing... hearing adjourned...thats it in a nut shell

Migz

 

[Rod]

OK. You have filed an application to vary. Did you submit an affidavit/statement/claim with your application? I assume it was filed within the time limit else the court would have thrown it out.

Do you need to add any extra information for the court and that the other party doesn't already have?

Because this is related to previous hearings it is hard to say what should happen.