Single Expert Witnesses in Parenting Proceedings

Rebecca Ward
Senior Associate
Barrister and Solicitor

Posted on 27/08/2019, Last Updated on 29/08/2019

 

60–Second Summary

The appointment of a Single Expert Witness (“Expert”) may become necessary in parenting proceedings in the Family Court where a professional opinion would assist the Court in reaching a decision.

Issues requiring input from an Expert might include:

  • Where and with whom the children ought to live
  • How much time the children ought to spend with the other parent or significant other person
  • Assessing whether there is a need to protect the children from family violence and/or abuse
  • Addressing other specific issues which may require the recommendation of an Expert

 

An Expert appointed in a parenting matter will invariably be a psychologist, psychiatrist, social worker or some other appropriately qualified professional.

 

Single Expert Witness Report

As with financial matters, the parties to child welfare proceedings in the Family Court (the mother and father or another “significant person”) need to agree on a list of questions and issues to be addressed by the Expert in their report.

This invariably takes the form of a Minute of Consent Orders as signed by the parties (referred to as the “Terms of Reference”).

If the Terms of Reference cannot be agreed, the Family Court will be asked to make a determination as to what these Terms of Reference ought to include. The Court will then make Orders incorporating the Terms of Reference.

 

Terms of Reference

The following is a summary of what has become a Court-recognised list of standard questions included in the Terms of Reference:

  1. The stage of development and maturity of the children.
  2. How the dispute between the parents is impacting the children.
  3. Whether the children are at risk of neglect and/or physical or psychological harm or abuse (including exposure to family violence) and, if so, the nature of the risk.
  4. The relationship of the children with each parent and/or significant other person (for example, a new partner, grandparents, etc).
  5. Any views the children may have about where they live and the time they spend with each parent or significant other person.
  6. Whether these views have been influenced by either parent and whether there are any other factors which may impact on the weight to be afforded to the wishes of the children.
  7. The capacity of each parent to provide for the physical, social, psychological and emotional needs of the children (including consideration of any mental health conditions or substance abuse issues concerning a parent or other significant person).
  8. The capacity of each parent to encourage the children’s relationship with the other parent and any other significant people, and to work with them for the benefit of the children (if it is appropriate for them to do so).
  9. The capacity of each parent to act protectively in the interests of the children if the other parent or another significant person poses a risk to the children.
  10. The likely impact on the children of a significant change in the children’s care arrangements, including any separation from a parent or any other person with whom the children have been living.
  11. If there are concerns about the children, the parents or any significant other person, whether those concerns could be addressed by therapy, counselling or other intervention for the children and/or parent and/or significant person (and, if so, whether the Expert is aware of the cost and availability of appropriate services in the area).
  12. Any recommendations regarding with whom the children should live, spend time with (including holidays) and communicate with.
  13. Any other matters relevant to the best interests of the children.

 

The Expert will then consider all of the Court documents, material produced under subpoena and proceed to interview the parties or significant others. Depending on the age and maturity of the children, they may also be interviewed as to their personal views and wishes.

Once the Expert has completed their report, they will attach it to an Affidavit and file this in the Family Court (also attaching a copy of their curriculum vitae). The Expert is required to provide copies of their Affidavit to the parties (and to the Independent Children’s Lawyer, if one has been appointed to represent the best interests of the children).

 

Process Following Appointment of Single Expert Witness

As with property settlement proceedings in the Family Court, the following applies when appointing an Expert in parenting proceedings:

  1. The parties are to obtain the consent and consider the availability of the proposed Expert prior to the Family Court being asked to appoint the Expert.
  2. There will be costs associated with engaging an Expert and unless there is a Court Order or an agreement to the contrary, the parties will be equally liable for these reasonable fees and expenses.
  3. The Expert remains a witness in the Family Court proceedings and must adhere to the Family Law Rules. When engaging an Expert it is therefore important to provide them with a copy of the relevant Rules. Our earlier Article entitled “Expert Witnesses in Financial Proceedings” considers the Family Law Rules applicable to the appointment of an Expert (which apply to both financial and child welfare proceedings).
  4. If either party has any questions arising from the Expert’s report or where there are matters requiring clarification, that party must pose these questions in writing to the Expert within 21 days of their receiving the report (also providing a copy to the other party). The Expert will then have a further 21 days to respond to the questions in writing. The party asking the questions will be obliged to pay any additional costs incurred by the Expert in providing their reply (given these questions will not be covered in the initial estimate/quote).
  5. If the matter does not settle prior to Trial, the content of the Expert’s report (as annexed to their Affidavit) will be treated as their “Evidence-in-Chief”. If either party requires the attendance of the Expert at Trial in order to cross-examine them on the content of their report, that party must advise the Expert in writing of this intention at least 14 days prior to the first day of Trial.

 

Meetings and Communication with Single Expert Witness

Prior to the preparation of their report, the Expert will contact each parent and/or significant other persons individually to schedule appointments, both separate from and together with the children (the latter being at the discretion of the Expert).

The Expert will likely observe the interaction between the children and each parent and/or significant other person if the children are young. If there are any personality or clinical concerns the Expert may conduct such testing as they deem appropriate.

If either party contacts the Expert directly, a copy of this communication must be provided to the other party (and to the Independent Children’s Lawyer, if one has been appointed). If Subpoenas have not been issued during the proceedings, each party may be required to provide the Expert with the names and addresses of all medical practitioners, psychologists and psychiatrists the parents and the children have attended.

The Expert may also request the parties to provide signed authorities permitting the various professionals to release to them information concerning a parent/significant other person and/or the children.

 

Key Takeaways

Ensure that you “do your homework” on the proposed Expert:

  • Do they have the correct experience and credentials?
  • Have they undertaken previous Family Court related work?
  • How do their costs compare with others?
  • What are their availabilities?
  • What timeline would the Expert be working within?

Ensure that you understand and are agreeable to the Terms of Reference.

Remain fully transparent with your communications with the Expert, such that the other party is aware of all written communications.

 

Final Thoughts

The Expert’s report may assist the parties in understanding the various dynamics within the family unit, and it may make recommendations as to how best to address these issues and any concerns they may have for the family moving forward.

These recommendations often assist the parties in negotiating an arrangement for the children, alleviating the need for the parties to litigate matters at Trial.

If you are seeking more information about the need or otherwise to obtain an Expert report in your family law matter, please give DS Family Law a call on (08) 9486 1766 for an initial consultation.

 

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For practical advice about what you should do next, please call to arrange a no-obligation initial consultation.