Expert Evidence Important in Family Law Matters to prove Opinions for example, Valuations, Medical issues and best interests of children

14/01/2016

The experienced solicitors at Watson & Watson have been involved in hundreds of cases requiring proof of matters of opinion.  Opinion evidence is separate and distinct from evidence as to facts.  Evidence of facts usually relate to evidence of what one can see, hear and read.  Opinion evidence is a professional opinion of interpretation of the factual matrix. 

At Watson & Watson we have engaged Expert evidence in many and varied cases including Family Law cases.  Experts have been engaged in relation to issue concerning valuation, superannuation, engineering, building, planning, negligence and personal injury.

Each Court has rules and codes of conduct for the giving of evidence by Experts.  Fundamentally the same principles apply in each Court or Tribunal.  Mr Justice Hayden (as he then was) in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWR 705 set out the principles, namely six principles being fundamental principles for admissibility and the proper receipt of Expert evidence in proceedings. Those principles apply today as much as they applied in 2001. 

We have been involved in producing Expert evidence to prove matters of opinion in cases in Family Court, Federal Circuit Court, Supreme Court, Federal Court, District Court, Local Court and many Tribunals including the New South Wales Civil and Administrative Tribunal (NCAT), the Industrial Relations Commission over many years. 

In the Family Court or the Federal Circuit Courts Family Law proceedings Expert evidence is required to prove various elements of one’s case.   These may include some of the following:

1.         Valuation evidence including valuation of business, private shareholding, trust assets, superannuation entitlements, goods such as artwork, antiques, furniture, aircraft, motor vehicles and all other assets;

2.         Medical issues which relate to many different and varied issues that arise, for example, capacity to earn, capacity and needs including cost of providing various services; and

3.         Children’s issues which relate to what is the best interests of the children, in particular, having regard to the psychological issues that arise in many cases. 

In Family Court matters the Family Court introduced Order 30A of the Family Law Rules which relate to Expert evidence.

There are numerous recommendations for amendments to the rules to allow for improvement of the evidence by way of Expert evidence. 

There are fundamental requirements in relation to Experts to be briefed and for his or her evidence to be of any use to the Court.  These include:

1.         The appointment of an appropriate Expert with specialised knowledge and experience. 

2.         The proper instruction of the Expert in relation to the factual matters and the issues to be considered. 

3.         The consideration of the report(s) of Experts.

The Expert not only must be appropriately qualified with appropriate experience but must be objective and independent from the parties.  Evidence of numerous Experts have been rejected due to the lack of independence and compliance with the various Codes of Conduct that apply in different Courts.

Each of the facts and assumptions which form the basis of an Expert's opinion must be proven by other means to enable the Expert opinion to be able to be supported and accepted by the Court.

The basis of the opinion evidence starts with the understanding by the Expert of the facts.  An Expert often makes "assumptions" which affect his or her opinion.

As with many opinions by non-experts the opinions of an Expert in a field can differ significantly. 

Watson & Watson are experienced at selecting the correct independent Expert for the particular purpose required.  It is of little use for an Expert to give an opinion which may appear favourable to a party but is not accepted by the Court.  Watson & Watson have experience and a process in place to deal with these issues. 

Currently the Family Court Rules provide for the appointment of an Expert at any stage of proceedings on application by a party or by the Court's own motion.  An Expert is appointed to enquire into and report on an issue of factor or opinion other than an issue involving questions of law or construction (legal sense) arising in the proceedings.   The Court will give directions as to the extent of the opinions sought. 

Usually the Expert appointed by the Court is a "single" Expert who is a person agreed upon between the parties or if agreement is not possible a person nominated by the Court with the appropriate expertise. 

The Expert will prepare a Report and there are rules which allow procedures for the Expert to give evidence and for the parties to dispute the Expert evidence and where there is conflicting Expert evidence on a single issue there is usually a "conclave of Experts" and for directions of the Court requiring the Experts to provide evidence in a form which is conducive to resolving the issues.  One development over the past few years is that the Courts now allow, and some encourage, the giving of concurrent evidence by the Experts which has the benefit of each of the Experts being asked the same question and for the Court to observe the responses by each of the Experts on the same issues.   This enables the Court to come to a conclusion as to which evidence is to be accepted by the Court.

There are many articles on Expert evidence and processes etc.  However, as with all matters experienced solicitors at Watson & Watson are and have been involved in the selection, instruction and assistance in obtaining the best Expert evidence available on the very many issues that arise over a full range of Court cases including Family Law matters.

Failure to produce the appropriate evidence will have dire consequences on your case. 

Please telephone Richard Watson to discuss any issues that arise as to the Expert evidence and generally in the provision of evidence in your proceedings.

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