Single Expert Witness and the Family Court

What is a Single Expert Witness ?

From time to time evidence or and expert opinion, may be offered by an expert in a particular field, to assist with a matter before the Family Court.

A Single Expert Witness or SEW can be appointed in either financial or child-related proceedings.

A SEW is typically an expert in the relevant field who provides an independent and objective written opinion to the Court.

A SEW can be appointed by the Family Court on its own initiative or the parties can seek the appointment of a SEW in the Family Court. Also, the parties can agree to appoint and jointly instruct, a SEW without an Order from the Court.

When Should a SEW be Appointed?

A SEW should only be appointed to provide an opinion on a specific and discrete issue to which expert evidence is necessary to assist the Court to adjudicate an issue in dispute.

Keeping Neutral

A SEW is bound by rules and legislation which guide the SEW’s conduct and report preparation. Any written correspondence between the parties and the expert must be copied to the other parties contemporaneously.

A SEW must:

  1. Be instructed in writing;
  2. Fully informed of his or her obligations in accordance with Family Law Rules and Legislation; and
  3. Comply with the terms of reference which guide the SEW’s enquiry.

After the SEW has filed her or his report, any party to proceedings can ask the SEW questions which must be in writing. The SEW is obliged to respond and file the questions and responses in the Family Court. While the SEW is usually questioned in person at trial, evidence can be provided by the expert at interim hearings in person or by telephone link.

What does a SEW base the Report On?

A SEW often bases their report on the following information, depending on the circumstances of the case.

In financial proceedings, the SEW may rely on the following information:

  • Court documents;
  • Disclosure;
  • Research;
  • Financial documents;
  • Data; and
  • Anything relevant to the matter

In Children’s proceedings, the SEW may rely on the following information:

  • Court documents;
  • Disclosure;
  • Subpoenaed material, for example, Police records, medical records, transcripts from proceedings in another court;
  • Research;
  • Relevant professionals and consultants;
  • Interviewing the parties and their new partners and/or significant others;
  • Observing the parties and their interactions with their child;
  • Interviewing the child where appropriate; and
  • Anything relevant to the matter

Depending on the terms of reference, the SEW may administer personality questionnaires towards the parents and significant others and other clinical assessments.

I Want to Appoint My Own Expert!

In an attempt to minimise disputes, expense, and expert shopping, the Court generally only appoint a single expert, hence the name SEW. If there is a dispute between the parties as to which expert to appoint, the Court can adjudicate this issue, or may make an Order for one party to supply the names and costs of three experts and the other party is to choose from one of the three experts suggested.

In limited circumstances, the Court will permit more than one expert providing an opinion to the Court.

Will the Court Follow the SEW?

The SEW provides an opinion on a discrete issue relevant to their area of expertise; the SEW is bound by their terms of reference and therefore is not retained to provide an opinion on the outcome of your matter.

The SEW Report is one of many considerations for the Court to weight in the circumstances of the case.

Who Pays for a SEW?

Generally, the parties share the cost of the SEW equally; however, the Court may make an Order for one party to pay the costs or the parties can reach an agreement by consent.

Are they Worth it?

It can be much cheaper to share the costs of a SEW to provide an opinion to the Court if it will assist the parties to reach a negotiated resolution or the Court to make a more efficient final adjudication.

Financial Issues

It is essential to ascertain the value of the assets and liabilities of the parties in order to adjudicate the division of the net asset pool. Where the value of an asset and/or liability is not easily determined, it may be appropriate to appoint a SEW.

A SEW may be appointed to provide an opinion on the value of a business, company, trust, patent, share, real estate or any other property.

Depending on the circumstances, a SEW may be a qualified Accountant, Valuer, Financial Advisor, Mortgage Broker, Business Analyst, or other relevant professionals.

Children’s Issues

In children’s issues, a SEW is more likely to be appointed in circumstances where there has been protracted litigation and/or where there are issues of risk to the child, for example, family violence, substance abuse, welfare issues and separation of siblings.

A SEW may be appointed to provide an opinion on the attitudes and behaviour of the parents (and/or significant others), the relationship between the child and the parents, opinion on the risk of harm and recommendations regarding spend time arrangements, parental responsibility and therapeutic services such as counselling, amongst other things.

Depending on the circumstances, a SEW may be a qualified Psychologist, Social Worker, Psychiatrist, Medical Practitioner or other health professional.

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