Family consultants and expert witnesses

Family Consultants are psychologists and/or social workers who specialise in child and family issues after separation and divorce, and are specifically appointed to the Family Court of Australia, Federal Circuit Court of Australia, or the Family Court of Western Australia. Save for external appointments under Reg 7 of the Family Law Regulations 1984, Family Consultants are co-located within the court premises: in the Family Court and Federal Circuit Court, within Child Dispute Services; and in the Family Court of Western Australia, within the Court Counselling and Consultancy Service.

Depending on the facts and circumstances of the particular case, the court may order (pursuant to Section 11F FLA or Section 65 FCA) that the parties to child-related proceedings take part in an assessment conducted by a Family Consultant. Some of the common assessments are set out below. Central to all of these assessments is screening for family violence and risk assessment. If the court is made aware that a party has any concerns about their safety, a safety plan will be put in place by the court for these appointments. Recently trialled is a structured family violence screening tool for use by Family Consultants in Section 11F FLA assessments. This tool will be progressively implemented across 2017.

Child Dispute Conference: In the Federal Circuit Court, the case will be heard by a judge who may ask a Family Consultant to interview the parents/carers and make a preliminary assessment of the issues. This is called a Child Dispute Conference. Children and lawyers are not included. The conference gives the court a preliminary understanding of the family situation, what issues are in dispute, and the steps that might be taken to obtain or commission evidence, assist in the resolution of the proceedings (such as the appointment of an Independent Children’s Lawyer), or assist the parties (such as orders to attend family counselling or to participate in an assessment of suitability for Family Dispute Resolution). The focus is on what the children need, and can assist the court in making short-term decisions about arrangements for the children. It may also help the parties reach an agreement. The main purpose of the conference is to conduct a brief and preliminary assessment, but there may also be an opportunity to attempt to negotiate any or all of the issues if time permits.

Child Inclusive Conference: The Federal Circuit Court judge hearing the case may ask a Family Consultant to interview the parents/carers and the children and make a preliminary assessment of the issues. This is called a Child Inclusive Conference. Lawyers are not included. The conference is intended to give the court a preliminary understanding of the family situation, particularly the children’s experience. The conference can assist the court in making short-term decisions about arrangements for the children. It may also help the parties reach an agreement.

Child Responsive Program: In the Family Court, a case may first be heard by a registrar who may order that the family takes part in a Child Responsive Program. This program involves a series of meetings between a Family Consultant, the parties, and usually the children. The aim is to help the parties and the court understand what the children need. When parties cannot agree on the best arrangements for the children, the case will proceed to a Less Adversarial Trial, and the Family Consultant will assist the court with expert opinion and evidence about the children and family.

Case Assessment Conference: This is an assessment process provided by the Western Australian Court Counselling and Consultancy Service. It involves a meeting between a Family Consultant, the parties, their lawyers if any, and the Independent Children’s Lawyer if appointed. The primary purpose of the conference is risk assessment. A written report is provided to the court, each party and the Independent Children’s Lawyer if appointed. In the report, the Family Consultant may suggest information that is currently relevant but missing, as well as various case management and therapeutic options regarding the case.

A Family Report is prepared by a Family Consultant as ordered by the court (Section 62G FLA and Section 73 FCA. Based on their observations of the parties and/or their children, the Family Consultant considers the family circumstances, explores issues relevant to the case, and recommends to the court arrangements that will best meet the children’s future care, welfare and developmental needs. The best interests of the children (Section 60CC FLA and Section 66C FCA) are the main focus of the report. Where family violence is an issue, the Family Violence Best Practice Principles set out the range of matters the court may determine the Family Report to address. In all cases where a Family Report has been ordered, the court must formally release the report and only the parties and their lawyers can receive it unless the court gives permission for it to be shown to other people.

The purpose of the Family Report is not to make findings about disputed facts. The Family Consultant may however consider it appropriate to remark on the apparent veracity of allegations, for example about family violence, after having discussed the allegations with the alleged perpetrator, alleged victim or children. For example, the Family Consultant may wish to record any admissions, inconsistencies or other reflections made or disclosed by the parties in relation to the disputed facts.

Since the 2012 amendments to the Family Law Act 1975 (Cth) and the Family Court Act 1997 (WA), research by the Australian Institute of Family Studies affirms that Family Reports are an important source of independent, expert insight into family dynamics, and are more likely to be generated in cases involving allegations of family violence or child abuse. In particular, there is greater attention in Family Reports to considerations of issues of risk and safety than prior to the legislative reforms, though in nearly half the number of reports analysed there are no conclusions made in relation to risk.

The conduct of family assessments and development of family reports play a critical role in the decision-making process of judicial officers when dealing with family law parenting disputes. The Australian Standards launched in 2015 by the Chief Justice of the Family Court of Australia, the Chief Judge of the Family Court of Western Australia and the Chief Judge of the Federal Circuit Court of Australia, are designed to inform all those involved with family law of the standards expected of practitioners preparing Family Reports.

While a Family Report is considered an expert report, it is part of a broader category of expert reports that deal with issues beyond those dealt with in a Family Report. An expert report (that is not Family Report) is ordered by the court where the expert evidence required to assist the resolution of the proceedings is beyond the expertise of a Family Consultant. For example, where there are mental health issues to be considered, the court may require that an expert opinion from a psychiatrist be obtained. Sometimes the Family Consultant will recommend that an expert opinion be obtained from an expert with particular expertise. For example, an addiction specialist may be required when dealing with parental substance misuse or the opinion of an expert maybe required where sexual offending is an issue. Division 15.5 of the Family Law Rules 2004 deals with expert evidence. The purpose of this division is to ensure that there is a single expert appointed by the court who provides an expert report to the court, rather than allowing the parties to appoint their own expert.