It What is a Single Expert Witness in parenting matters?
Pursuant to Rule 15.45 of the Family Law Rules 2004, the Family Court may order Single Expert Witness (‘SEW’) to give independent expert evidence in parenting cases.
A SEW is usually a highly qualified psychologist, psychiatrist or social worker with substantial Family Court experience. The appointed expert undertakes extensive interviews and analysis to provide a considered, professional opinion as to which arrangements are in the best interests of children.
Isn’t “opinion” inadmissible as evidence?
Generally speaking, opinion evidence is inadmissible and objectionable. The exception to this rule is where:
- the opinion given is by a witness with specialised skill or knowledge; and
- is wholly or substantially based on that knowledge.
What does the Single Expert Witness report on?
Both parties jointly instruct a Single Expert Witness.
The parties will agree on the terms of reference to be provided to the SEW and the specific issues they must report on. Some terms of reference are common in parenting proceedings. Others may be unique to the circumstances of the case at hand. For example, commonly used terms of reference are:
- With whom should the children live, spend time and communicate?
- What are the children’s views about where they live and the time they spend with each parent, (and how much weight they carry)?
- Are the children at risk of neglect, harm, abuse or exposure to family violence?
- How is the dispute between the parents impacting on the children?
Do I get to choose the Single Expert Witness?
It is common practice for one party to prepare and propose a short list of candidates to the other. This is so a Single Expert Witness can be chosen by the other party from that list and be duly appointed. A SEW takes instructions from both parties so some degree of consensus on who that person is is important.
A SEW is often chosen based on:
- The fees and expenses charged to produce a report and attend Court (if necessary);
- The timeframe within which they can commence interviews;
- The timeframe within which they can produce the report; and/or
- Their area of professional expertise.
If the parties cannot agree on a candidate, the Family Court will assist. The parties are usually asked for their own shortlists of experts, who are willing to be appointed and have provided their consent to do so, and the Family Court will choose one.
Who pays for the Single Expert Witness?
The parties are equally liable to pay a Single Expert Witness’ fees. This includes the expenses of preparing a report. However, this only the case if there is no agreement or Family Court order to the contrary.
How does the Single Expert Witness gather information about my case?
A Single Expert Witness will undertake interviews with each parent, both alone and in the company of the children (if appropriate).
SEWs can interview children, depending on the age and level of maturity of the children. These interviews tend to try and ascertain their views on where they live and the time spent with each parent.
The SEW will consider all filed Family Court documents, subpoenaed material, information provided by a Family Consultant or Independent Children’s Lawyer. Authorities should be provided by the parties, enabling the SEW to speak with doctors, therapists, teachers, family members or any other significant people they deem appropriate.
How does a Single Expert Witness help the Family Court?
The value of a Single Expert Witness is two-fold.
Firstly, a SEW is usually a distinguished professional in their field. Drawing on their expertise, they are able to provide the Family Court with a qualified stance on what arrangements are in the best interests of the children.
Secondly, the impartial evidence of a third party can be of great use. The role of a Judge or Magistrate includes assessing where the truth lies in situations of conflict. This can be a difficult task when most evidence in the Family Court can be quite subjective.
How does a Single Expert Witness help the parties?
Expert evidence can assist the parties to understand complex family dynamics and move toward resolution of the issues underpinning a family law dispute.
A SEW report can increase the prospects of settlement, avoid further litigation and save precious time and money. It’s common for parties to find themselves negotiating children’s arrangements if a SEW’s report contains recommendations that are not aligned with their application. Ultimately, parties tend not to persist with a “losing” case.
What happens if I don’t agree with the Single Expert Witness’s report?
A Single Expert Witness gives evidence only.
The Family Court can cross examine any SEW report, nor are they obliged to accept it’s findings. The Judicial Officer is always the ultimate decision maker.
That being said, it can be difficult to challenge the evidence of a SEW. Hence it’s important to understand that the Family Court is unlikely to order commission of a secondary report simply because it is not in one parent’s favour.