Expert witnesses engaged during in Family Law proceedings are specialists who examine and provide insights on factual or opinion-based inquiries within their expertise. They include child psychiatrists, psychologists, property appraisers, financial analysts, and medical specialists.
Types of Experts
Within Family Court proceedings, three types of experts may be appointed:
- Expert witness
One party exclusively engages an expert witness to provide evidence in favour of that party’s position.
- Single Expert Witness
All parties involved jointly instruct an expert witness, requesting their assistance to resolve a key disputed issue.
- Court Expert
The Court solely appoints a court expert to present independent evidence. May be appointed if the court considers it necessary to obtain multiple opinions.
Real estate expert witness
Where the parties do not agree on the value of property, the parties may have to agree on a single expert witness. A joint expert witness’s report is generally attached to an affidavit sworn by the expert.
Other financial expert witnesses
Valuing a party’s stake in a corporate entity, business or family trust usually requires independent valuation of assets, liabilities, and goodwill with the expert examining financial documents.
Aside from valuation, it may be necessary to appoint an accountant or forensic accountant as a single expert witness scrutinise transactions impacting property division.
Superannuation expert witness
The method of valuing a party’s interest in a superannuation scheme varies:
- statement balances often suffice for “accumulation” funds; but
- valuation of “defined benefit” funds often requires the appointment of an expert witness such as an actuary.
Other types of expert witnesses
Other types of expert witnesses In family law proceedings include:
- Child and family psychiatrists;
- Psychologists;
- Medical specialists;
- Social workers;
- Financial consultants; and
- Property valuers.
Who appoints an Expert?
Parties to a legal dispute can agree to appoint an expert by consent, or a judge can order their appointment.
A single expert may be appointed through mutual agreement between the parties or, if agreement cannot be reached, court-ordered. The expert is instructed jointly by both parties and must agree to be appointed.
Usually, one party’s solicitor prepares a letter of instruction which is reviewed and confirmed by the other party’s solicitor. Multiple versions of the instruction letter may be exchanged before reaching a final agreement. The expert generally confirms with the parties’ lawyers that they have received the letter of instruction and understand their responsibilities as a single expert witness.
Alternatively, in some circumstances, parties may bring in their own expert witnesses, subject to court directions.
Use of a single expert
The Federal Circuit and Family Court Rules require that evidence on a specific matter (such as property valuation) must be presented by a single expert witness. The goal is to reduce expenses and enhance efficiency, as multiple experts with differing valuations complicates the court’s decision-making process.
Rather than bearing the full expense of a single expert individually, parties can share the cost. If there are two separate expert witnesses, the court may order them to confer and produce a joint report to resolve disagreements. During these joint conferences, experts are expected to genuinely collaborate and independently exercise their professional judgement, rather than adhering to the instructions of their clients or legal representatives.
The expert must provide a written report to both parties simultaneously.
Using an expert to value an asset
Where there is no consensus on the value of an asset, a valuation of the asset must be obtained.
An expert report giving a definitive value for the asset can facilitate negotiations.
Valuations also play a crucial role in trials, giving judges precise asset values to inform their final decisions on property settlements. During trials, a single expert witness may be called upon to testify and be cross-examined by the parties’ legal representatives.
What if I disagree with an expert’s findings?
If either party has inquiries following the release of an expert report, they can seek clarification from the expert.
Copies of these queries are generally distributed to the expert and all involved parties. Options for recourse are restricted where a party disagrees with a single expert witness report.
The court will not usually entertain a second opinion from another expert. However, the court is not obligated to adhere to the recommendations of the expert. A party can explain their reasons for disagreeing with the expert’s conclusions, and the court will consider these arguments in its final decision-making process.
What are the costs?
Expenses related to an expert report are usually divided equally between the parties. However, where one party has financial constraints, the court may order that the other party cover the entire cost upfront, to be reimbursed as part of the property settlement.
If there is a significant disparity in parties’ incomes and financial capacities, they may agree that one party bears the cost of a single expert, Alternatively, the court may order one party to cover the costs without contribution from the other party.
Family reports in parenting matters
During parenting proceedings, the court often mandates a Family Report by a social worker or psychologist to assess the interactions among parents, children, and other household members such as grandparents and half-siblings. This involves interviews and observation sessions with the parties and children as appropriate.
Court Family Consultants often prepare this report, but it may be prepared by a private psychologist or psychiatrist jointly funded by the parties.
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Contact us for advice regarding any aspect of joint expert witness reports.
