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Expert Evidence Important in Family Law Matters to prove Options for example Valuations, Medical Issues and best interest of Children

06/03/2020

The experienced solicitors at Watson & Watson have been involved in countless cases requiring proof of matters of opinion.  Opinion evidence is separate and distinct from evidence as to facts.

At Watson & Watson we have engaged Experts in many and varied cases including family law cases.  Experts have been engaged in relation to issues concerning valuation, superannuation, engineering, building, planning, negligence and personal injury.

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

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) on Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWR 705 set out the principles namely six principles being fundamental principles for admissibility and the property receipt of Expert evidence in proceedings.  Those principles apply today as much as they applied in 2001.

In the Family Court or the Federal Circuit Court 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 in the best interest 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 relates to 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.

The Expert not only must be appropriately qualified with appropriate experience but must be objective and independent from the parties.  Evidence of numerous “Experts” has been rejected die 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 may 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 by a person nominated by the Court with the appropriate expertise.

The Expert will prepare a Report and there are rules which allow procedures for an Expert to give evidence and for the parties to dispute the Expert evidence.

In some circumstances where there is a single expert appointed by the parties and the Court one party may obtain advice from an independent expert to consider the evidence of the single expert.  This may assist in cross examination of the single expert as to various aspects of the issues and the report.

If a party wishes to cross examine a single expert it will be at the hearing and the appropriate notice must be given to the expert and the Court.

Additionally there are particular rules which would allow in certain circumstances for one party to adduce evidence from a further independent expert however such an Application must be made and be at the discretion of the Court.  One exception to this rule is that an independent children’s lawyer may tender a report or adduce evidence at the hearing with one expert witness on an issue without the Court’s express leave. 

However as with all matters our 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.  If you have any concerns regarding issues that arise as to expert evidence or the provision of evidence in your proceedings, please contact Richard Watson Senior Family Law Solicitor his Personal Assistant to discuss your matter and seek timely advice to mitigate any issues that may arise due to inadmissible expert evidence.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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