The role of the Single Expert Witness / Family Report Writer was considered in a recent child custody decision by the Family Court of Western Australia (Worrall and Bartley [2018] FCWA 132).
In accordance with an earlier order that the interim parenting arrangements (child custody) for the nine year old child (who had been the subject of litigation for eight years) be reviewed after 12 months, the Single Expert Witness / Family Report Writer conducted his review and published a report.
The father sought that final parenting orders (child custody orders) be made in terms of the existing interim parenting orders or otherwise in accordance with the recommendations of the Single Expert Witness / Family Report Writer ‘on the papers’, that is without cross examination of the parties and / or witnesses.
The mother objected on the grounds that:
- She did not consent to the making of final parenting orders as proposed by the father; and
- She did not accept the opinion evidence submitted by the Single Expert Witness / Family Report Writer and the child’s psychologist.
His Honor held that:
- It would be procedurally unfair to make final orders in reliance on the Single Expert Witness / Family Report Writer report without affording the mother the opportunity to challenge it in cross-examination;
- The simple acceptance of the recommendations of the Single Expert Witness / Family Report Writer, without affording the opportunity for cross-examination, might reasonably be perceived as an abrogation by the Court of its decision-making responsibility in favour of the Expert;
- A Single Expert Witness / Family Report Writer, no matter how experienced or qualified, is still simply that: a witness;
- The expertise of the Single Expert Witness / Family Report Writer renders his or her opinion evidence admissible, but the opinion remains subject to an assessment by the Court as to the weight to be given by it;
- While expert evidence is of great assistance to the Court and informs many of the decisions which must be made, the responsibility for making those decisions is the Court’s alone;
- A Court hearing will afford the Court the opportunity to ask questions directly of the Single Expert Witness / Family Report Writer and child’s psychologist, if appropriate.
For these reasons, His Honour declined to determine the matter ‘on the papers’ and the matter was listed for final hearing in the Family Court with cross-examination of the experts.
The Family Court child custody case upholds the principle of ‘procedural fairness’ and the importance of parties having the right to put all witnesses, including expert witnesses, ‘to the test’.
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