When Do You Call in the Experts? Expert Evidence in Family Law

Experts are commonly engaged in family law proceedings to address a gap in the evidence before the Court or to resolve an issue in dispute. Expert evidence is obtained by way of a written report in order to guide the parties to a resolution or to provide guidance to the Court as to the most appropriate outcome, in either parenting or property proceedings.

Expert evidence is frequently obtained in the following circumstances:

1. For an accountant to give an opinion as to the value of a business in property proceedings;

2. For a valuer to give an opinion as to the value of a house or other asset in property proceedings;

3. For a child psychologist to give an opinion about the most appropriate care arrangements for a child or children in parenting proceedings;

4.  For a psychiatrist to conduct an assessment and offer an opinion including a diagnosis as to the mental health and recommended treatment of one or more parties involved in parenting proceedings.

It is not a requirement in each case that expert evidence be obtained, however, it is uncommon for there to be no expert evidence. In property proceedings, if parties are able to agree on the value of assets, then there may be no need for the appointment of an expert.

A Single Expert, being an expert in the Court proceedings, can be appointed either by the Court or by parties to proceedings. One of the purposes of the Federal Circuit and Family Court of Australia Rules is to encourage parties to only obtain expert evidence in relation to a relevant and significant issue in dispute, to limit the costs of parties, and also to limit the risk to parties regularly obtaining expert evidence, or to “expert shop” if they do not accept the expert evidence they have obtained.

The Court Rules aim to reduce the prevalence of a party seeking to put before the Court expert evidence which interests their own case. It is generally preferable to appoint a joint expert, who receives joint instructions and therefore may be more inclined to offer an opinion that is balanced, considered, and will withstand scrutiny, as opposed to an expert who may become biased as a result of only hearing the instructions of one party.

A party may seek to leave to appoint its own adversarial expert, rather than appointing a joint expert. An adversarial expert can only be appointed however in certain circumstances, such as where it is argued the joint expert had insufficient qualifications or expertise in the subject matter about which they are providing an opinion.

The Court is not bound by the opinion or recommendations given by an Expert in Court proceedings. The Court can use its discretion in order to determine whether to rely on the opinion of an Expert, either in whole or in part.

To obtain specialist family law advice in relation to your matter, contact Robinson + McGuinness to arrange an initial appointment. Contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Margot McCabe

What is the role of an Independent Children’s Lawyer (ICL)?

An Independent Children’s Lawyer (ICL) is a lawyer appointed by the Court to assist the Court in determining what parenting arrangements are in the child (or children’s) best interests.

ICLs are experienced family lawyers who have completed the national ICL accreditation program. Their fees are usually met in the first instance by the local Legal Aid authority, but parties are often requested to make a contribution to the costs of the ICL, and the Court may order that they meet the costs of the ICL.

An ICL is not appointed by the Court in every parenting matter. The Court can appoint an ICL on its own motion, or following an application by one or more of the parties. When considering whether to appoint an ICL the Court may take into account factors, including:

• Any allegations of risk or family violence;

• The age and maturity of the children;

• Where there is significant conflict between the parties; or

• Where one (or both) parties are not legally represented.

Once appointed, the ICL will read all of the documents filed by the parties, consider any relevant subpoena material, express their view (where applicable) to the parties about any issues that arise, and attend and participate in each listing of the matter before the Court.

Although the ICL may meet with the children to discuss their views and may communicate those views to the Court, they are not appointed to be a lawyer for the children or to act on their instructions. Instead, their role is to provide an independent view and assist the Court in working out arrangements that are in the children’s best interests. This may, or may not, be consistent with the children’s views or the views held by the parties.

The ICL also helps the Court by ensuring important evidence is available for the Court’s consideration, such as by issuing subpoenas to obtain relevant records from the children’s schools, the police or child protection bodies.

If the matter proceeds to a final hearing, the ICL will also ask each of the parties questions during cross-examination and, having read, heard and considered all of the evidence, make submissions to the Court about the final orders that they consider are in the best interests of the children.

The ICL plays an important role as an independent ‘honest broker’ between the parties and can help negotiate a settlement of their parenting matter without the need for a determination by the Court, such as by organising and participating in a mediation with the parties and their lawyers.

Although the ICL’s view is likely to carry some weight in the proceedings, the ultimate determination about the children’s arrangements rests with the Court.

If you think an ICL may need to be appointed you should seek legal advice from a family lawyer about whether this is appropriate in the circumstances of your matter.

Allegations of Risk to Children in Family Law Matters

Family law cases that involve allegations of risk to children can be difficult for everyone involved, particularly because of the broad range of issues which can arise. Children can be at risk of sexual or physical abuse, or at risk because a parent’s mental health, alcohol or substance abuse impacts on their parenting capacity. They can be at risk of harm by neglect, or a ‘flight risk’ if one parent is seeking to relocate overseas without the other parent’s consent. They can be at risk of emotional harm by being exposed to family violence, or of emotional harm arising in some other way.

When an allegation of risk is made, the Court must carefully consider what Orders are necessary (if any) to protect that child from that risk. The Court must consider the level of risk and the type of harm, and then look at those factors along with all of the other considerations that must be taken into account when determining what outcome will be in a particular child’s best interests. The Court might make Orders requiring that one parent be supervised when spending time with a child, or that they undergo drug or psychological testing. What is appropriate will vary depending on the specific circumstances of each case, and every case is different.

Sometimes allegations of risk in family law matters turn out to be nothing but mere allegations, but it can take time for a Court to sort through whether or not a child really is at risk or not. This can be incredibly frustrating for the parent against whom the allegation is made, particularly if their time with the children is stopped or curtailed while the allegations are being examined. In other cases, the risk of harm ultimately proves to be real and Orders will be made either trying to manage that risk, or to prevent the risk entirely by stopping a child from spending any time with that parent.

In the recent case of Syms & Syms (2021) FLC 94-010, the Mother made allegations that the Father was sexually abusing their three children. She refused to allow him to spend any time with them, and so the Father commenced Court proceedings in the Family Court. The matter went on for several years and the trial Judge ultimately formed the view that Father was not a risk to the children, but that they were at risk – from the Mother’s unshakeable view that they were being abused. The Judge was concerned that if the children stayed living with the Mother, they would not only lose their relationship with their Father, but they would also come to accept their Mother’s belief that they were being sexually abused. This represented an unacceptable risk of emotional harm, and accordingly Orders were made of the children to live with their Father. They were prevented from spending any time at all with the Mother for four months, and were then permitted to spend supervised time with the Mother until the Father decided the supervision requirement was no longer necessary. The Mother appealed the decision and was ultimately unsuccessful. This case serves as a reminder that risk and harm can exist in many different forms, and that sometimes where a family law matter starts out can be very different from where it ends.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.