In Australia, each parent has parental responsibility for their child until they turn 18 years of age. The Family Law Act 1975 (Cth) defines parental responsibility in relation to a child as “all duties, powers, responsibilities and authority which, by law, parents have in relation to children”. The change in the parents’ relationship, by virtue of separation, does not affect parental responsibility.
A Court will only make Orders about parental responsibility if the parents cannot agree about the arrangements for their child/ren. These orders are called Parenting Orders.
When making Parenting Orders, the Court must regard the bests interest of the child/ren as the paramount consideration. The Family Law Act clearly sets out what the Court is to consider when determining what is in the child’s best interest. There are two primary considerations the Court must apply:
- The benefit of the child having a meaningful relationship with both of the child’s parents; and
- The need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.
The Court must give greater weight to the need to protect the child.
The Family Law Act also sets out additional matters the Court must consider. It is beyond the scope of this article to address these considerations. However, if you would like to know more about this, please contact one of our experienced Family Lawyers.
When determining what is in the child’s best interest, the Court has regard to each party’s evidence so far as they are relevant in addressing the matters the Court is to consider. Sometimes, the evidence parties adduce is not enough and experts are engaged by the Court to provide further evidence. This is commonly in the form of a Family Report.
What Are Family Reports?
A Family Report is a document written by a family consultant appointed by the Court or agreed to by the parties.
The purpose of a Family Report is to assist the judge hearing your case in making decisions about arrangements for the children by providing an independent assessment of the issues in the case.
The best interests of the children are the main focus of the Family Report. In preparing the report, the family consultant considers the family’s circumstances, explores issues relevant to the case and recommends arrangements that will best meet the child/ren’s future care, welfare and developmental needs.
How do you get a Family Report?
The only way to get a Family Report is through Court Order. Often, a Family Report is ordered and provided by the Court and there is no cost to either party. Parties may request a private professional to prepare the Family Report, in which case, costs are usually shared by the parties.
What if you don’t agree with the contents of the Family Report?
Once a Court has made an Order appointing an expert to prepare a Family Report, neither party is permitted to provide the Court with a subsequent report by another expert without the Court’s permission. This means that if you are unhappy with the contents of the Family Report, you cannot simply obtain another report from a different expert and have their report included in evidence as substitution for the Family Report without first obtaining the Court’s permission. It is therefore important to understand what your options are if you do disagree with the contents of the Family Report.
What does the Law say?
Rule 15.64B of the Family Law Rules provides that within 21 days after receipt of the report of a single expert witness (i.e. a Family Report), the parties may enter into an agreement about conferring with the expert witness for the purpose of clarifying the report.
Rule 15.65 of the Family Law Rules provides that a party seeking to clarify the report of a single expert witness may ask questions of the single expert witness under this rule either within 7 days after the conference under rule 15.64B or if no conference is held, within 21 days after receipt of the single expert witness' report by the party.
The Courts are reluctant to discharge a single expert witness particularly if the procedures provided by the Court for clarifying matters in a report prepared by a single expert witness have not been employed. In Bass & Bass [2008] FamCAFC 67, the Court refused the father’s applications to discharge a single expert witness (who had prepared a report for use in parenting proceedings) and to be permitted to adduce further evidence from another expert witness, where the father asserted a bias against him in the report of the single expert witness. It was held that the assertion of bias on the part of the single expert witness would best be established through cross-examination of that witness.
In the recent case of Behrendt & Cadenet (No. 2) [2021] FamCA 19, it was determined that loss of confidence in the Family Report writer alone was not sufficient grounds for discharge. The Court held that there must be some other substantive reason as to why the Report should be set aside or the expert be discharged.
In Nagel & Clay (2020) 60 Fam LR, the Court pointed out that there is authority that the principles of apprehended bias do not apply to all witnesses and that it is generally desirable for a single expert, appointed by the Court under the Family Law Rules to prepare a Family Report, “to conduct, and be seen to conduct, his or her process of forming an opinion, generally in compliance with [the Family Law Rules], and in an even handed manner, ideally by hearing from all relevant parties, if they co-operate, and receiving their material consensually”.
In McGrath v McGrath [2012] NSWSC 578 Justice Pembroke made the following comment, “Too high an insistence on independent experts being required to avoid even an impression of partiality would not be in the interests of justice. It might...encourage unwarranted challenges and unnecessary litigation by those too readily prone to suspicion and paranoia.”
If you would like to speak with one of our Family Lawyers about your parenting matter, please contact us on (02)9688 6023.
This is not legal advice.
