Expert Reports and Expert Witnesses in Family Law
28 February 2024 · Read time: 6 minutes
Family law proceedings frequently involve the engagement of expert witnesses.
These individuals are specialists tasked with examining and providing insights on factual or opinion-based inquiries within their expertise.
Expert witnesses commonly enlisted for testimony in family law cases encompass psychologists, child psychiatrists, medical specialists, property appraisers, and financial analysts.
Types of Experts
Within Family Court proceedings, three categories of experts may be appointed:
- Expert Witness
An expert witness is engaged and called upon by one party exclusively to provide evidence in favor of that party's position. - Single Expert Witness
This type of witness is jointly instructed and called upon by all parties involved. They are tasked with offering assistance in resolving a key dispute issue. - Court Expert
A court expert is appointed solely by the Court itself to present independent evidence, particularly when the Court deems it necessary to consider multiple opinions on a specific matter.
Real Estate Expert witness
In cases where there is disagreement regarding the value of property, acquiring impartial evidence may become essential. If the parties reach consensus on the selection of an expert, this can be accomplished by presenting evidence from a Single Expert Witness.
Typically, this involves submitting a court affidavit along with the expert's report attached.
Other Financial Expert witnesses
Valuing a party's stake in a business, corporate entity, or Family Trust typically involves examining financial statements and tax returns, though independent valuation may be necessary to assess assets, liabilities, and goodwill.
Apart from valuation, scrutiny of transactions impacting property division may arise, potentially requiring an accountant or forensic accountant as a Single Expert Witness.
Superannuation Expert witness
Valuing a party's interest in a superannuation scheme varies; while statement balances often suffice for "Accumulation Interest Schemes," "Defined Benefit Interests" often necessitate expert valuation, sometimes by a jointly appointed actuary as a Single Expert Witness.
Other types of expert witnesses
In family law proceedings, various other types of expert witnesses include:
- Psychologists
- Child and family psychiatrists
- Social workers
- Medical specialists
- Property valuers
- Financial consultants
Who appoints an Expert?
Parties in a legal dispute can agree to appoint an expert by consent, or a judge can make an order for their appointment.
The appointment of a single expert can be arranged through mutual agreement between the separating parties or mandated by the court in the absence of consensus. The expert must agree to the appointment and is instructed jointly by both sides involved in the dispute.
Typically, one solicitor prepares a letter of instruction, which is then reviewed and confirmed by the other solicitor.
Occasionally, multiple iterations of the instruction letter may be exchanged before reaching a final agreement. Alternatively, parties may opt to bring in their own expert witnesses, subject to specific court directions and only in limited circumstances.
Use of a Single Expert
In family law cases heard in the Federal Circuit and Family Court (FCFCA), regulations stipulate that evidence on a specific matter, like property valuation, must be presented by a single expert witness.
This requirement aims to reduce expenses and enhance efficiency. Having multiple experts with differing valuations complicates the court's decision-making process.
Furthermore, parties involved in the court proceedings can share the cost of a single expert, rather than bearing the full expense individually. If there are two separate expert witnesses, the Court may instruct them to confer and produce a joint report to resolve disagreements on specific issues based on predefined facts or assumptions.
During these joint conferences, experts are expected to collaborate genuinely and exercise their professional judgement independently, rather than solely adhering to the instructions of their clients or lawyers.
Using an Expert to value an asset
In cases where there is no consensus on the value of a specific asset during a property settlement, it becomes necessary to obtain a valuation for the asset.
An expert report can provide a definitive value for the asset, enabling parties to understand its worth clearly. This valuation information can facilitate negotiations or settlement agreements.
Moreover, valuations play a crucial role in trials, providing judges with precise asset values to inform their final decisions on property settlements. During trials, a single expert witness may be called upon to testify and undergo cross-examination by the parties' legal representatives.
What if I disagree with the findings of an Expert?
If either party has inquiries following the release of an expert report, they can seek clarification directly from the expert.
Typically, copies of these queries are distributed to all involved parties and the expert, ensuring transparency and equal access to information. In cases where there is disagreement with a single expert witness's report, options for recourse are restricted.
The Court typically declines to entertain a second opinion from another expert. Nonetheless, the Court is not obligated to adhere to the recommendations of the expert.
Therefore, parties can articulate their reasons for dissenting with the expert's conclusions, and the Court will consider these arguments in its final decision-making process.
What are the costs involved?
The expenses related to the expert report are typically divided equally between the parties involved. However, in situations where one party faces financial constraints, the court may mandate that one party cover the entire cost upfront, with reimbursement upon the property settlement.
Alternatively, parties may mutually agree that one party bears all expenses associated with the Single Expert, especially if there is a significant disparity in their incomes and financial capacities. In certain instances, the Court may order one party to cover the costs entirely, without contribution from the other party.
It is customary for the expert to confirm with both solicitors that they have received the letter of instruction and understand their responsibilities as a single expert witness.
Upon completion of the work, the expert must furnish a written report, which must be simultaneously provided to both sides of the dispute.
Family Reports in Parenting Matters
During parenting proceedings, the court often mandates a report by a psychologist or social worker to assess the interactions among parents, children, and other household members like half-siblings or grandparents. This report, known as a Family Report, involves interviews and observation sessions with the parties and children, where appropriate.
Family Consultants at the court typically prepare this report, but parties may jointly fund a private psychologist or psychiatrist to undertake the task, especially in complex cases requiring expertise.
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