While it is preferable for families to settle their parenting dispute outside of the Courts, in circumstances where negotiations have been exhausted or there is an urgency to the dispute, one party must commence proceedings in the family law courts to move things forward.
When a matter reaches the Court, the Judge is usually faced with two very narratives from two diametrically opposed parties with neither party having significant evidence that corroborates or supports their narrative. Consequently, independent evidence from a third party tends to be given substantial weight by the Court.
Court Child Experts
In matters where there is a lack of independent evidence, early in parenting proceedings, the Court will consider whether it is appropriate for the parties and children to be referred to a Court Child Expert for a Child Impact Report.
Court Child Experts are qualified psychologists or social workers who have specialist knowledge in child and family issues after separation and divorce and have satisfied the Court that they have the necessary expertise to undertake the role of an expert witness in parenting matters before the Court.
Family Consultants
Unfortunately, the Court does not have the resources to appoint a Court Child Expert in every matter so parties are encouraged to consider paying for a private expert themselves. Such experts who have satisfied the Court of their expertise but are not employed by the Court are called Regulation 7 Family Consultants. Family Consultants tend to be a much quicker option for parties, but unlike Court Child Experts, the cost of the report is not free of charge.
Part 1 interviews
Once an expert is allocated, the expert first has an appointment with each of the parties separately to identify any risks of harm to the children and to discuss parenting after separation as well as their proposal for the children. These interviews tend to take around 1.5 hours each and are conducted virtually by video. Prior to the interviews, the expert will review the court documents and evidence filed with the Court thus far. Everything that the parties say to the expert is reportable and thus can be included in the report the expert prepares.
Part 2 interviews
The second part of the process is an appointment with the children. These interviews tend to take place in person and tend to take around half a day, so it is important to make appropriate arrangements for the day such as lunches and activities to occupy each child. If there is more than one child, the expert may interview each child separately or together. The children are given an opportunity to talk about their feelings and experiences of the family situation, but no child will be required to express views or wishes if they do not wish to do so. The expert may sometimes also wish to observe the children with the parents.
In some special circumstances, the expert may disclose information reported to them to Police or state child welfare authority if:
- they reasonably suspect that a child has been, or is at risk of being, abused, and/or
- they reasonably suspect that:
- a child is being ill-treated, or is at risk of being ill-treated, or
- a child has been exposed or subjected, or is at risk of being exposed or subjected, to psychological harm
The Report
After the interview with the children, the expert may then speak to the parents once more to speak about the children’s needs before preparing their report.
Once the Report is completed it is sent to the Court for consideration and release. The Report will contain information about the experience and needs of the child, the alleged risks of harm to the children, and aims to help parents understand their children’s experiences and needs so they may consider what future arrangements for the children would best meet these needs. The Report may also include recommendations for the parties and the Judge about future arrangements for the children.
The Report is confidential so once it is released to the parties and their lawyers, it cannot be shown to anyone else. Section 121 of the Family Law Act 1975 (Cth) states that publishing or otherwise disseminating to the public any account of the proceedings or any part of the proceedings is a criminal offence punishable by up to 12 months imprisonment.
Once the report is released it forms part of the evidence before the Court and while it does tend to be given great weight by the Court it is still only one piece of evidence. As such the assessment of the expert can be challenged in Court.
If your parenting matter is before the Court and you are seeking representation or you are in the midst of a parenting dispute, please contact our office on (02) 4944 3322 to speak to one of our family law solicitors.
