THE ROLE OF EXPERTS
Family law is a jurisdiction where experts and social science has had an overwhelming impact in the determination of cases.
INDEPENDENCE OF EXPERTS
Before commencing proceedings about children, a section 60I certificate is required from a Family Dispute Resolution Practioner.
The “expert report” every parenting case has commissioned by the Court, becomes a turning point in the lives of the litigants. The purported independence of the expert underpins their authority as much as their qualifications influence the Court. The reality is that no 2 experts will agree on all matters in each case.
If an Independent Children’s Lawyer is appointed in your parenting case, they will likely ‘fence sit’ until an experts report is finalised and typically be swayed in favour of its contents. Judges in turn look to independent reports and evidence rather than partisan evidence from the parties.
The possibility of unfairness is obvious, experts can be biased, others can free ride or fail to form their own opinions. One of the first reports generated in parenting cases is a Memorandum requiring the parties to be interviewed. The report may include interviews with the children.
Expert witnesses are engaged to provide evidence regarding their knowledge in a particular subject. Such knowledge is beyond that of the average person by virtue of the expert’s education, profession or experience so that their opinion will assist the judge in making a decision. In family law proceedings, many times physicians, psychologists, social workers, analysts and appraisers are engaged as experts.
Expert witness evidence is essential to legal proceedings that involve technical, financial, medical, professional, or scientific matters.The primary function of an expert witness is to express his or her independent expert opinion based on he information that is provided.
Expert witness must maintain high ethical standards in compliance with the Evidence Act, with the overriding duty being to the court or tribunal. An expert witness is not an advocate for a party. An expert witness must truthfully, objectively and fully express his or her expert opinion, without regard to any views or influence which the person retaining or employing the expert may have or seek to exercise. The trend of involving an expert witness in family law cases has increased over the last decade. Experts are increasingly required in complex cases for issues involving property valuation and distribution, business valuations, maintenance, children and especially in complex issues such as paternity disputes, earning capacity, etc.
For cases involving questions of abuse, a medical or psychological expert can play a significant role by testifying as to the physical or psychological effects of a party’s conduct. Similarly, expert opinions are sometimes required in determining residence of children and in determining the worth of property. Property and financial matters are particularly dealt with by experts like certified accountants and property valuers. Tax experts might provide advice regarding tax consequences when determining the distribution of property.