Family Reports / Expert Reports : Disclosure / Cross Examination

There is a distinction between Family Reports and Expert Reports in Family Law proceedings.

Family Reports

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

Expert reports are governed by Part 15.5 of the Family Law Rules.

Pursuant to Rule 15.44, 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 15.45, 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).

There is, however, a difficulty in that the Rules note that it is desirable to ensure that single experts are only required to give evidence in relation to significant issues in dispute, and that their role in proceedings and associated costs be limited to the extent strictly necessary (Rule 15.42).

The Court may prefer for a Family Report to be prepared at first instance (as opposed to an Expert Report) simply because there is no fee involved in the parties seeking the preparation of that report (as the Family Consultant does not charge the parties for preparing a report), and the significance of particular issues has not yet been determined. In any event, this will not prevent an Expert Report from later being prepared if necessary.

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.

FAMILY REPORTS

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. Theweight to be attached to report is then a matter for the Court.

Rule 15.04 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 15.04 refers only to copies of the report being given to parties, and not the contents of the report being disclosed. Paragraph (d) of Rule 15.04 deals with what to do with the Report, and any copies of the Report, after it is received into evidence. Nowhere in the Rules is there a clear and unequivocal statement giving the Court a right to deny the parties’ rights to disclosure of the contents of the Report.

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 15.03(5)(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.

EXPERT REPORTS

Disclosure of Expert Reports

Part 15.5 of the Family Law Rules governs the disclosure of Expert Reports.

Pursuant to Rule 15.48, 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 15.50.

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.

That process is as set out in Division 15.5.6 of the Rules.

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Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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