Criticism of the family court system has often highlighted the role and influence of expert report writers whose assessments can be pivotal to how the court decides issues of custody.
Now, a group of parents unhappy with the conduct of a particular report writer have raised the issue again, after they were able to refer the practitioner to health regulatory bodies to potentially seek his de-registration.
Concern over the conduct of the NSW practitioner who performs expert witness work for the family courts extends beyond his case and raises questions over the general lack of governance relating to the process of report writing and regulation of expert report writers.
Expert report writers are typically social workers, psychologists or psychiatrists who provide written assessments which can affect the outcome of a family court decision in relation to custody of children—leading to their description as “the gods of the court”, due to their perceived excessive power.
The type of practitioner at the centre of the group’s complaints is referred to by the court as a single expert witness, and by the legal community as a family report writer. They work either internally as employees of the court or as external contractors. Those employed by the courts are referred to as family consultants.
In family law matters, report writers meet with families, make an assessment of issues within the case and prepare a report of recommendations for judges to consider when deciding the best arrangement for children involved in custody battles.
Parents who disagree with the results of a written report can feel they are forced to fight a difficult legal fight to challenge and overturn the report or instead, be forced to accept the report’s conclusions, which may result in loss of access to their children.
Training and accreditation
The parents’ action has reinvigorated the debate over the scrutiny of how family court expert report writers are regulated, in particular concerns over the lack of accreditation and training.
Family report writers do not need to have clinical experience, and while specialised training in dealing with violence and abuse allegations is encouraged in a set of guidelines, it is not compulsory.
Last year, the parliamentary inquiry into Australia’s family law system handed down its report which recommended “abolishing private family consultants” and creating “a national accreditation system” including a “complaints mechanism for parties which family consultants do not meet the required professional standards”.
And the Australian Law Reform Commission’s review which is due to report to the government next March, took submissions which included this from Family Court Chief Justice John Pascoe:
“An accreditation scheme which allows parties to ascertain that a private report writer has acquired and maintained the required competencies and works to a high standard could greatly assist both litigants and the court to which the report would be submitted.”
The government says it will take any ALRC recommendations on the issue “very seriously”.
Fees
There is also the criticism that there is no regulation over practitioner’s fee structures and that this causes families much hardship. Attorney-general Christian Porter, in campaigning for his amalgamated courts plan, has said a merger would help reduce the costs of experts.
Monopolies
When judges specify which private family report writer parents are to use, rather than supply a list of practitioners in a “register of approved suppliers”, it is regarded as in effect giving one writer a monopoly position and the ability to charge as they wish.
Standards for expert report writers
While the family courts do have a set of standards, the “Australian Standards of Practice of Family Assessments and Reporting”, which outline good practice–practitioners are “not compelled to comply”. This leads to the criticism that at present, practitioners operate beyond the rule of law.
Power
But are report writers actually “the gods of the courts”? In an article in Australian Family Lawyer last year, Dr Jacoba Brasch QC discussed the family report at length, and it’s worth repeating her comments:
“Family Reports, and to a lesser degree, psychiatric assessments, feature in the vast majority of contested parenting proceedings. However, frequency of use ought not to be confused with unquestioning adherence or unwavering acceptance. While many reports are helpful, [judicial practitioners] must keep at the forefront of our minds that a report is only one piece of that jigsaw puzzle of evidence (although often a large piece) that is received by the trier of fact and law for his or her ultimate decisions.”
She reminds us of the limits of expert evidence and “that experts are not the arbiters”:
“Far from being able to divine the single right answer, far from usurping the judicial process, far from offering a boiler plate for a rubber stamp, social scientists who provide Family Reports are really doing no more than presenting an argument”.
However, because report writers provide evidence which is relied on by courts when they make determinations about facts in disputes over kids, it seems clear that they should be within the reach of regulation and the rule of law. The current phase of family law reform will surely need to resolve this impasse.
Source: ABC News
You may also like to read our blog: family reports and the question of scientific validity.
At Alliance Legal Services, we have expertise in instructing expert witnesses and we know what to ask them to get the right evidence into court. To speak with Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services, please call (02) 6223 2400. We offer a free first conference.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.
