In family law, many cases require proof of matters of opinion, both in parenting and property proceedings. Opinion evidence is different from evidence as to facts, and therefore the courts rely on the expert evidence of very well qualified professionals to assist them in making decisions regarding potential orders. If you need to choose a “single expert witness” together with your ex, what are some of the things you should bear in mind?
There are numerous different kinds of experts that can provide evidence to the family law courts. Aside from court-appointed Family Consultants and family report writers, privately chosen experts are often highly qualified psychologists, social workers, child and family psychiatrists, medical specialists, property valuers and financial consultants, ideally with substantial family court experience.
Sometimes, experts are tasked with preparing a report according to an order of the court. Other times, parties choose to engage an expert without an order of the court. When a private professional prepares a report for the court on behalf of both parties, that professional is referred to as a single expert witness.
The Family Court Rules allow appointment of an expert at any stage of the proceedings once an application is made by a party or by the court’s own motion.
Choosing what the witness will report on
You and your ex will reach an agreement on the terms of reference that you will provide to your expert witness. This will set out the exact issues to be reported on. Common terms of reference in parenting matters include arrangements for how the children should spend time with each parent, what the children’s views are, and whether the children are at any risk of harm. In property matters, experts are often required to give valuation evidence (such as valuation of properties, businesses, shares, trust assets, goods such as antiques and any other asset requiring valuation). The witness may then be asked to further address other issues specific to the circumstances of the matter, such as if there are medical issues requiring expert opinion evidence.
Choosing an expert
Usually, one of you will prepare a shortlist of potential experts and provide it to the other party who will select the witness from the list. Once the witness is chosen, for fairness they will obtain instructions from both parties.
When it comes to selecting an expert witness, parties usually consider such practical aspects as the cost – the fees and expenses involved in producing a report and attending court if this is required. Or, the timing may be critical as to whether an expert can produce the report in the appropriate timeframe. Importantly, parties have to be certain of the expert’s area of professional expertise and that it is relevant. When it comes to choosing an expert witness, it’s of the utmost importance to carefully choose and instruct an expert who is very well qualified in their defined area of expertise.
Not only does the witness need to be appropriately qualified, but they must be independent from the parties.
What if you don’t agree?
If you and your partner can’t agree on who the expert should be, it will be necessary for the court to step in and appoint one. Usually, parties give the court their shortlist of potential experts who have consented to be appointed in the matter and the court decides who the witness will be.
Separate or “adversarial” experts
As with lay opinions, opinions of experts even within the same field can vary dramatically. It can be tempting, therefore, to want to disagree with a particular witness and come up with another one who may produce a more favourable report or valuation (aka an “adversarial” expert). However, there are strict rules around adducing evidence from further independent experts. Applications can be made, which explain why a party feels there is a need for a separate expert, but are at the discretion of the court to allow. That’s because the courts encourage the use of joint witnesses wherever possible to avoid potential “report shopping” by parties. If you both disagree with the report or valuation, you might however be able to jointly request another expert to give evidence.
How do family lawyers source experts?
If you have a family lawyer, they will create a shortlist for you, providing a recommendation of one expert on the shortlist and the reasons for that preference. The Law Society describes the process and explains how family lawyers source their experts through experience, databases and online searches, reported cases, and sometimes by word-of-mouth recommendations from another expert. Potential experts are evaluated as to their qualifications, research background and the cases they have been involved in.
In selecting an appropriate witness, The Law Society notes that family lawyers will give consideration to numerous aspects. For example, when initially discussing the brief, whether the expert demonstrates a good grasp of the issues on which they would be giving an opinion. Further, has the expert given evidence before a court before? Although this is not an essential, it can obviously be helpful if an expert is familiar with the process. What’s more, if the expert’s evidence is contained within a reported judgment, it’s possible to look at how their evidence was viewed by the court.
Then there are more personal issues such as rapport, communication style and whether the expert is going to be easy to deal with. Choosing an expert who can express themselves clearly to a court is important. While experts are not advocates for parties, they still must be able to persuasively and cogently communicate their opinion to the court.
At Alliance Family Law we have engaged experts in a wide variety of family law cases. We are experienced at selecting and instructing the best independent expert for a given purpose and—crucially–that will be accepted by the court. If you would like any advice in relation to expert witnesses, or any other family law advice, please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.