Current at 24 July 2023
There is a distinction between Family Reports and Expert Reports in Family Law proceedings.
Pursuant to section 62G of the Family Law Act (1975) (Cth), the Court may direct that a Family Report be prepared, by a Family Consultant, on such matters relevant to the proceedings as the Court considers fit.
Family Reports are prepared only in connection with parenting proceedings.
Expert reports are governed by Part 15 Division 5 of the Family Court Rules 2021.
Pursuant to Rule 269, parties can consent to the appointment of a single expert to provide an Expert Report addressing a matter (or matters) relevant to the proceedings.
Pursuant to Rule 270, either party can apply to the Court for an order that a single expert be appointed and an Expert Report prepared.
Expert Reports can be prepared for both property and parenting proceedings.
Similarities / Differences
Whilst different legislation governs the two different types of Reports (Family and Expert), there appears to be nothing in the legislation suggesting that the same subject matter cannot be dealt with by either form of Report (save in the case of property matters).
That is, there appears to be no reason why an Expert Report cannot address the same matters which would otherwise be the subject of a Family Report (the children’s views, the relationship between the child and the parents, etc).
Principles in relation to the disclosure of Reports and the right to cross-examine the makers of Reports differ, depending on whether a particular Report is a Family Report or an Expert Report.
Those principles are as set out below.
Disclosure of Family Reports / Right to Know Contents
Pursuant to Section 62G (8), a Family Report provided to the Court may be received into evidence (the Court has a discretion as to whether to admit the Report into evidence).
The Family Report may be admitted into evidence even if contains hearsay or statements of opinion – see Foster and Foster (1977) FLC 90-281. The weight to be attached to report is then a matter for the Court.
Rule 235 deals with the treatment of a Family Report provided to the Court. Pursuant to that Rule, the Court may:
(a) Give copies of the report to each party, or the party’s lawyer, and to an Independent Children’s Lawyer;
(b) Receive the report into evidence;
(c) Permit oral examination of the person making the report; and
(d) Order that the report not be released to a person or that access to the report be restricted.
Again, the Court has a discretion in relation to these matters.
There is, however, a distinction between copies of the Family Report being disclosed, and the contents of the Family Report being disclosed.
Paragraph (a) of Rule 235 refers only to copies of the report being given to parties, and not the contents of the report being disclosed.
The widely held view is that that if a Report is admitted into evidence, the parties are entitled to know the Report’s contents. This view follows from the meaning of the word evidence as “evidence available to the parties” – see Tucker J in Moxon v Ministry of Pensions (19345) KB 490 at p 501.
In Reeves v Reeves (No 2) (1961) 2 FLR 280, Barry J stated
- “I think it is clear that if the report is received into evidence, the parties are entitled to see it”.
Cross Examination of Maker of Family Reports
Rule 235(c) provides that the court may permit cross-examination of the maker of a Family Report.
The prevailing view in relation to cross-examination is that whether it is a matter of right or not, a party seeking the right to cross-examine should be permitted to do so – see Harris and Harris (1977) FLC 90-276.
Disclosure of Expert Reports
Pursuant to Rule 273, the single expert must prepare a written report. If the parties appointed the single expert by consent, the single expert must provide both parties with a copy of their report. If the expert is appointed by Court, then the expert must provide the report to the Court.
Cross Examination of Maker of Expert Report
Cross examination of a maker of an Expert Report is governed by Rule 275.
Pursuant to that Rule, a party wanting to cross examine a expert witness must inform the expert witness that they are required to attend, in writing, for cross-examination, at least 14 days before the date fixed for the hearing or trial.
The court may limit the nature and length of cross examination of an expert witness.
In addition to cross-examination, there is a process by which the parties (or either of them) may seek to clarify the Expert Report through a series of questions posed to the expert, and answers provided by the expert.
We’re Here to Help
Family law matters can be difficult and complex. If you require any assistance with a family law dispute, always contact a legal practitioner who will be able to help.
O’Sullivan Davies has practitioners experienced both in parenting and property matters. More information about our services can be found at our About Us page here.
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