If you have spoken to people you know about parenting proceedings in the Family Court, or you have been doing some reading online of your own, you may have heard about the term Single Expert Witness. Most people are familiar with the idea of an expert witness in a legal case. Quite often in a legal matter, there will be some issue that requires explanation. In a civil setting, this might involve an assessment of how serious someone’s injuries are, and what their capacity to work in the future is. While anyone may be able to give their opinion on this kind of issue, unless that person has expertise, that opinion is of little value to a Court and is inadmissible as evidence. Experts hold a special place because, by virtue of their expertise, they are qualified to give evidence on matters within their experience and expertise.
One of the issues that can arise in a civil case is where each party obtains their own experts. These experts might disagree, and the Court is left in a position where it needs to assess the evidence of the experts and make a determination about what the true factual position is. Often, expert evidence comes at a cost to the person seeking the evidence, as experts will invoice for their time. This can lead to situations where the ability of a person to finance an expert can become relevant to their ability to access justice.
This situation creates a number of problems in the Family Law jurisdiction:
- In parenting matters, the Court is required to act in the best interests of children. It is generally accepted that children should be sheltered from proceedings in the Family Court to the greatest extent possible. Where there are multiple experts, children would need to speak about the same matters multiple times;
- The disputes between the parents may also become even more polarized in the children’s mind if the questions asked by experts are leaning towards obtaining evidence for one parent or the other; and
- It is not always the case that each party has equal access to finances. Often, one parent has taken on the role of homemaker and carer of the children. While important, this role is financially weaker than the income earner of the household. Upon separation, there is often a financial imbalance.
These issues may beg the question – ‘are experts even necessary at all?’ Unfortunately, they are. Family Court Magistrates and Judges, while highly knowledgeable, start their careers are lawyers. Through-out a lawyer’s career, they will be exposed to expert opinions and garner knowledge in respect to children, but a lawyer is not trained in the psychology of children.
This creates an issue, particularly in parenting matters. There may be matters that require an expert opinion, but exposing children to experts often means that they are made more highly aware of the dispute between their parents.
To address this issue, Parliament has made specific rules that govern the appointment of experts in Family Court proceedings. This is where the term Single Expert Witness comes from. Broadly speaking;
- Expert evidence may only be considered by the Family Court if it comes from a Single Expert Witness;
- A Single Expert is appointed by order of the Court, and the Expert owes their responsibility to the Court, as opposed to one party or the other. Experts are often appointed by the parties by consent, but the Expert does not act for either party;
- A Single Expert is given terms of reference. These are questions that the Single Expert is asked to answer. In the Family Court of Western Australia, there are standard questions that are asked, though those questions can change where the specifics of a matter require it;
- In parenting matters, the Expert will usually meet with the parties and the children. They will then prepare a lengthy report that is filed with the Court. This report includes the Expert’s recommendations for what should occur;
- The Single Expert is protected from being sued in relation to the opinions they give and the finding they make. If the matter goes to trial, they can be cross-examined about the contents of their report; and
- Unless there is a good reason otherwise, the parties are expected to bear the costs of a Single Expert Report equally.
Where there are issues of mental health, allegations of alienation, or an assessments of the relationships between parents, children and each other needs to be made, and where the matter is going to trial, a Single Expert is often required. Typically, a Single Expert would be appointed prior to the parties filing their documents for Trial so that the parties may see the Expert’s report and recommendation before preparing their own documents for Trial. It is then common for a Single Expert to do an updating report as over a year may pass between the time a report is written and the matter being given a trial date.
If you need advice about parenting matters, or wish to better understand some of the complexities of Family Court matters, please reach out to us at Joss Legal – we can help. You can contact us on 6559 7480 or through our website at www.josslegal.com.au.