Shadow reports in family law disputes
Did you get an expert report for a family law matter and are unhappy with it?
In family law disputes (whether being negotiated between the parties or being decided by the Court), there is often great value in the parties appointing a Joint Expert to prepare a report.
This means that the same expert is providing a report for the benefit of both parties and the Court, based on both parties’ instructions, and (if necessary) with the benefit of the Joint Expert having read the Court file and the subpoenaed material.
Also, generally speaking, if a Joint Expert is appointed by the parties, they can equally share the costs of the report to be prepared.
Joint Expert Reports can significantly reduce the conflict between parties regarding expert evidence, as both parties have participated in appointing the expert and the report writing process (such as expert interviews), and both parties may wish to provide Court or subpoenaed documents to the Joint Expert.
All these things reduce the chances that in future the parties will be dissatisfied with the quality of the report (not to be confused with disagreeing as to the outcome or recommendations of the report).
Common uses for Joint Expert Reports in family law matters include:
- Valuations of real estate or superannuation.
- Valuations of interests in businesses, companies or trusts.
- Valuations of assets as future financial resources providing future income
- Medical reports – such as those regarding earning capacity of a party, or the level of medical needs of dependent children. Regarding parenting:
- Psychiatric reports into a parent or child’s mental functioning, risks of violence, or impact of exposure to violence.
- Paediatric reports into the health and treatment plan for a child.
- Reports prepared by a social worker, psychologist or psychiatrist with recommendations regarding parenting arrangements for children.
Nonetheless, despite the benefits of obtaining Joint Expert Reports, a party to proceedings may not be satisfied with quality of the report.
A party may consider, for example, the Joint Expert:
- has not based their recommendations on evidence available to them.
- has adopted the opinions and views of one party only, without due regard to the other party’s views or evidence.
- has prepared a report that contains a very unusual methodology or conclusion that calls into question the professionalism or credibility of the report;
- has not had regard to all appropriate information they should have, or they wrongly took into account matters that were not relevant to the question under consideration.
Many of these issues can be dealt with at a hearing (or trial) by cross-examination, because Jointly appointed Experts, like all witnesses in the Court, must be available to come to Court and asked questions by the parties regarding the report and their recommendations (or conclusions).
If the report is flawed, cross-examination may expose the flaws in the report, and make clear to the Judge and the parties that the recommendations (or the conclusions) of the Expert cannot be relied on.
Alternatively, a party dissatisfied with a report may wish to obtain their own report, and file it as a “shadow” expert report.
However, it is important to note that once a Joint Expert Report has been filed, a party seeking to file in the Court another report, will need to seek leave from the Court, under Rule 15.49 of the Family Law Rules 2004, which permits the filing of shadow reports under certain circumstances.
In order to permit a party to file a shadow Expert Report, the Court must be satisfied:
- there is a substantial body of opinion contrary to any opinion given by the single expert witnessand that the contrary opinion is or may be necessary for determining the issue;
- another expert witnessknows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
- there is another special reason for adducing evidence from another expertwitness.
If the above criteria are satisfied, a party will be able to tender in court a “shadow” expert report. Then, in Court, it may be necessary for the Judge to determine which of the expert’s opinions they prefer regarding he issues in dispute.
If this question is something that is relevant to a family law dispute you are having, please don’t hesitate to call Argent Law on 03 9571 7444 today to arrange a confidential advice session with one of our experienced lawyers.