Expert witnesses are often called in to assist with family law proceedings. These are professionals who are asked to investigate and report on a question of fact or opinion in their area of expertise. Expert witnesses who may be brought in to give evidence in a family law matter can include psychologists, child psychiatrists, medical specialists, property valuers and financial analysts.
Experts can be appointed by the Court, either in response to an application by one or both parties, on application by an Independent Children’s Lawyer, or of the Court’s own motion. The expert may be agreed on by the parties or nominated by the Court. If one professional is asked to prepare a report for the Court on behalf of both parties, that professional is called a single or jointly instructed expert witness. The Court generally prefers this arrangement as it avoids the time and expense involved where two or more experts have competing opinions.
A single expert witness will contact each of the parties to make an appointment for an assessment. If the expert is a psychologist or psychiatrist in a matter involving children, they will ask you questions about the level of conflict between you and the other party, about your parenting and about whether you think your children are at any risk of harm. You will also need to provide contact details for the children’s schools or day care, and any other professionals who have been involved with the children, such as counsellors and doctors. They will ask the same questions of the other parent, and if your children are old enough, they are likely to meet with the children as well. They will ask the children questions about their relationship with each parent, their preferences for the future and the reasons why they would prefer certain arrangements. This gives the Court an opportunity to hear the voice of the children, which would otherwise be excluded due to the limitations on children giving evidence directly to the Court.
If you do not agree with the report of a single expert witness, your options are limited. The Court will generally refuse to allow a second opinion from another expert. However, the Court is not bound by the expert’s recommendations. This means that you can explain why you disagree with the expert’s conclusions and the Court will take your arguments into account in reaching their final decision.
At other times, parties may wish to bring in their own expert witnesses. Independent expert witnesses are only permitted in limited circumstances and under specific directions from the Court.
All expert witnesses have a duty to apply their specialised knowledge to a set of assumed facts, and to form an opinion based on that specialised knowledge. Expert witnesses have a paramount duty to the Court. This duty requires them to assist the Court to understand the evidence in the case and the real issues in dispute rather than advocating for a particular party’s position. Expert witnesses must be truthful when reporting the facts, be honest when giving their opinion and provide complete coverage of all relevant issues. Even when they have been retained by one of the parties to the case, experts must ensure their evidence is independent, unbiased and objective. An expert witness should advise you of their overriding duty to the Court and that, depending on their findings, they may need to provide advice and information to the Court which is contrary to your interests or instructions.
However, independent experts also owe duties to you as their client, including a duty of confidentiality, a duty to be diligent in considering the evidence fully and fairly, a duty to be punctual and a duty to provide a fair and transparent quote for their services.
Where there are two independent expert witnesses, the Court may direct that they hold a conference in order to clarify the issues that they disagree on and produce a joint report based on a specified set of facts or assumed facts. In a joint conference, experts are required to make a genuine effort to reach an agreement with each other, and to exercise their independent professional judgement rather than acting on the instructions of their client or the client’s lawyer.