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When cross-examination hurts

On 10 September 2019 the Australian family law act was amended so that perpetrators of family violence can no longer cross-examine their ex-partners in court. Instead cross-examination must now be conducted by a legal representative of the party.

This is a great step forward in the fight to protect family violence survivors from being re-traumatised. But does it go far enough?

It’s increasingly acknowledged that victims of repetitive interpersonal abuse are prone to “amygdala hijack”. This means that the area of the brain in which the fight or flight reaction is housed overtakes the area of the brain responsible for logic and judgment. Survival reactions may also include freezing or “friending” the threat source.

Barristers in cross-examination often use techniques which can trigger an amygdala hijack – in particular, aggression, humiliation and confusion. Once hijacked, a victim of complex trauma (already struggling to remember details of family violence incidents) will be unable to give cogent evidence.

Rather than providing logical answers to questions in cross-examination, the witness’ access to memory is impaired and they will respond in a reflexive mode which may be considered evasive (flight), combative (fight), unresponsive (freeze) or untrue and designed only to placate the cross-examiner (friend).

The Australian evidence act obliges the court to actively disallow questions in cross-examination which are unduly aggressive, humiliating or confusing. Or questions which are repeated (harassing), sarcastic or personally targeting the victim’s vulnerabilities.

However, many judges may be unaware of the particular threat these types of questions pose to a vulnerable victim of family violence. These questions, and the manner in which they are delivered, may mirror the abuse the witness received at the hands of their ex-spouse, and cause the witness to be re-traumatised. 

If you are a family lawyer acting on behalf of a vulnerable witness, remember to try and limit these types of questions. Ensure your client is given breaks and time to re-engage the logical brain. When memory fails, the witness should be encouraged to use a document (such as their affidavit) to revive their memory about a fact.

If you are facing cross-examination in family court proceedings, you may wish to practice meditation or other calming techniques beforehand (mindfulness is a useful tool to combat the amygdala hijack). Once in court, try to listen fully to each question, take a breath and slow down the pace before answering.

If it all possible, bring a supportive friend or family member with you to court. When you start to feel overwhelmed, they can act as a constant to anchor you in the present. They will also help remind you that you’re not alone.

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