The Family Court may from time to time require an expert to provide an opinion on a specific issue or dispute via a report. In such instances, the court prefers the appointment of only a Single Expert Witness (SEW), rather than having more than one expert give evidence. This is often done to minimise expenses and ensure that disputes are resolved quickly and efficiently.
SEW’s can be appointed in both matters involving financial issues or children’s issues.
SEW IN FINANCIAL MATTERS
In regard to financial issues, SEW’s will likely be appointed where the valuation of a particular asset,liability or division of a net asset pool is problematic. In such cases, the SEW may be a qualified accountant, valuer, mortgage broker, financial advisor or other relevant professional.
SEW IN PARENTING MATTERS
An SEW is often appointed in matters involving child care disputes where there is some risk to the child(ren), family violence or welfare concerns. In these instances, the SEW may be requested to provide a report on the behaviour of the parents or guardians and their relationships with the children. In these situations, the SEW may be a child psychologist, social worker, psychiatrist or other relevant professional.
APPOINTMENT OF A SEW
In order to appoint a SEW, the parties to the dispute may jointly agree on a particular expert, so long as the SEW is knowledgeable and qualified to provide an opinion on a particular issue. Alternatively, the court itself is able to make orders on application, or upon its discretion, to order that a SEW be appointed. When the Family Court appoints a SEW they will often consider:
- the nature of the dispute;
- whether the issue falls within an established area of knowledge (in other words, the issue is one that an expert can give an opinion on); and
- whether it is necessary for the court to obtain an opinion from a SEW.
Once appointed, the SEW will be provided with instructions regarding the issues on which their opinion is required. This is often referred to as the “terms of reference”. Whilst the SEW may provide recommendations in their final report, the SEW will not provide an opinion on the outcome of your matter. Due to the operation of the “terms of reference” they will only provide an opinion on a discrete issue.
Finally, SEW’s must be instructed in writing and be fully informed of his or her obligations and duties in accordance with the Family Law Rules 2004. Instructions provided to the SEW must specifically include:
- a request for a written report;
- advice that the report may be used in anticipated or an actual case;
- the issue about which the opinion is sought;
- a description of any matter to be investigated, or any experiment to be undertaken or issue to be reported on; and
- full and frank disclosure of information and documents that will help the expert witness to perform the expert witness’s function.
The parties to a dispute must also provide the SEW with a joint statement of facts on which they will base their report. However, if the parties do not agree on the facts, they will each be required to provide the SEW with their own individual statement of facts.
Alternatively, the Family Court may give the SEW directions about the form and content of the statement of facts.
COSTS OF A SEW
Note the cost of a SEW will generally be shared equally between the parties, but the Family Court may make an Order for one party to pay the costs.
Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.