Appointment of family report writer Terms of reference v brief to consider s 60CC matters

In Hardwick [2013] FCWA 57 (20 May 2013) the parties disagreed over the appointment of a single expert witness to provide a report in a parenting case and the terms of reference for that report, in particular as to when the father should begin having overnight time with the parties’ two year old child. Walters J observed (para 3) that the expression “terms of reference” does not appear in theFamily Law Act, s 69ZN of which contains the principle that child-related proceedings should be “conducted … with as little formality, and legal technicality and form, as possible”. Walters J said at paras 36-38:

“In my opinion, the issues in dispute between the parties in relation to which expert evidence is likely to assist the Court are broader than those suggested by the wife. For example, the wife seeks orders that the husband’s overnight contact with [D] be supervised; the husband proposes that it be unsupervised. As well, the wife proposes that overnight contact occur less frequently than in the orders proposed by the husband. The date upon which overnight contact is to commence is clearly not the only issue upon which the court will be asked to rule.

The wife’s insistence upon overnight contact being supervised raises issues relating to the potentiality of risk to [D] if such contact is unsupervised. It also raises issues about the wife’s bona fides in requiring the supervision.

I see no reason why the instructions to be given to the expert should not reflect the considerations set out in s 60CC of the Family Law Act 1975 (Cth) (or, at least, those of them that are relevant to the current dispute). After all, the Court must regard [D’s] best interests as its paramount consideration, and must consider the matters set out in s 60CC in determining what may be in his best interests.”

Walters J concluded at paras 40-41:

“I am satisfied that both Dr Watts and Ms Cherubino have adequate training, study and experience to qualify them as having special knowledge on the issues that I have identified above. I am not satisfied that one is better qualified than the other (for the purpose of embarking upon the role of single expert in these proceedings); nor am I satisfied that Ms Cherubino is more experienced than Dr Watts in ‘working with children’ [as the wife contended]. Even if I am wrong in that regard, I do not regard it as a relevant consideration in determining which of the two should be appointed single expert in the context of these proceedings. I accept, however, that Dr Watts has more experience as a single expert witness in Family Court proceedings than does Ms Cherubino.

I am aware that Dr Watts’ fees are significantly greater than Ms Cherubino’s fees. The husband has agreed to pay the costs associated with the single expert, however, and it is his proposal that Dr Watts be appointed. It follows that the husband clearly has no discomfort with Dr Watts’ fees. There is no suggestion that the husband will be seeking a contribution to Dr Watts’ fees from the wife at a later stage.”

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