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Family Law

Family reports and the question of scientific validity

By March 23, 2017No Comments

By Gianna Huesch

In Australia, the family courts order family reports to be written by family consultants in order to assist judges in making decisions about parenting conflicts. In America, similar documents are known as child custody evaluations. One American writer has now questioned the scientific validity of these evaluations, stating that there is still no scientific evidence “whatsoever” internationally that child custody evaluations result in beneficial outcomes for children, and going so far as to argue their use may actually be detrimental to kids.

Family reports are an independent, impartial assessment of issues in the case. They are a written report that can be privately commissioned by the parties or ordered by the court, and exist to help the courts make decisions about arrangements for children. A court-ordered family report is prepared by a family consultant, appointed by the court, who is a qualified social worker or psychologist with expertise in working with children and families.  Family consultants are recognised as court experts in relation to children’s matters. They gather information about the issues in dispute, parenting arrangements both past and present, parenting capacity of the parents, the children’s relationships with significant people, the children’s views and wishes and any risk to the children. Their reports include information obtained from a variety of sources such as interviews and observations, affidavits and other reports filed in the case. The reports usually contain recommendations about how the children’s time and parental responsibility should be allocated between parties, based on the family consultant’s beliefs about the child’s best interests.

Family reports are ordered because of the expectation that mental health experts are better qualified to comment on the relevant issues than judges are. However, the writer argues “this assumption comes into question because there is no scientific evidence proving that mental-health professionals are better at making child-custody decisions than judges. In fact, there is no scientific evidence that mental-health professionals are better at making child-custody decisions than anyone, be they professionals, laypersons, or otherwise.”

Of course, this is counter-intuitive and seems incredible. Even without hard scientific quantitative data, logic together with anecdotal evidence would certainly support the view that mental health professionals are in a better position to understand the effects of family dynamics on children than are laypeople.

In arguing evaluations could actually be harmful to children, the writer outlines possible reasons. For example, the high cost of private assessments, and the fact that parents often feel committed to spend more funds attacking or defending reports. In sum, the writer argues:

“When one considers the lack of scientific evidence to support custody evaluations, the diagnostic-error rate among mental-health professionals, the harmful effects psychotherapists unintentionally cause patients (aka the iatrogenic effect), the impact of financial burden caused by custody evaluations, and the psychological damage that privacy invasion may generate, the hypothesis that child-custody evaluations may produce detrimental effects seems viable.”

In Australia, the costs issue is probably not as relevant, because a family report, when ordered and provided by the court, bears no cost for either party. It’s true that parties can ask a private professional to undertake a family assessment and provide the court with a report which may be admitted as evidence—in these cases, parties bear their costs of the private assessment.  (Note that a family report is different to an expert report, which is sometimes required to provide assessments, diagnosis and information which can’t be provided by a family consultant.) Expert reports, for example when a court requires a psychiatrist to provide a psychiatric assessment report, are paid for by each party.

Decisions by courts to order family reports are based on the assumption that the evaluation would be helpful for the children, and that the judiciary can rely on the credentials of the assessor “as a guarantor of an accurate and cost effective custody evaluation”.

In Australia, the idea that family consultatns wield an unhealthy amount of power was put to rest with the outcome of the 2010 case of Tryon & Clutterbuck, where it was determined that the authors of family reports do not exercise any ‘power’ in preparing a family report and do not make ‘findings’ in the way the court makes findings when a matter proceeds to hearing. Rather, the impact of a family report depends on the exercise of a court’s discretion and occurs after the author of the report has been cross-examined and the report considered with the totality of all relevant evidence. Judges can accept or reject the recommendations in a family report. Family consultants simply make observations and provide expert evidence only and if their report is controversial, they can be cross-examined by each of the parties.

Also, our courts recognise the limitations of family reports. For example, people’s behaviour and character during a family report interview may be quite different to their attitude and behaviour in a court or in the real world.  It’s also accepted that family consultants don’t have access to all the available evidence and that their recommendations might be based on incorrect facts or assumptions.

You can absolutely disagree with the contents of your family report, and the appropriate place to challenge the report is in court. At trial, you would call the family consultant as a witness to be cross-examined. There is also the avenue to make a complaint about the family consultant through the courts by referring to the Family Court of Australia or the Federal Circuit Court of Australia’s Complaints Policy.

Ultimately, however, we do agree there is value to the statement that there could be “a greater push made by the judiciary to encourage local psychologists…to begin systematic scientific research on child custody evaluations to develop a set of proven tools that properly serve families”.

Want to know more about family reports? Our family courts have published detailed fact sheets regarding family reports and consultants which you can view here:

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/child+dispute+services/family-reports

Read the US article here: http://www.mediate.com/articles/TurkatI1.cfm

Do you need help in relation to parenting or other family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors on (02) 6223 2400.

Please note our blogs are not legal advice. For legal advice specific to your circumstances, please call us to arrange a free first conference.

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