Weight - Evidence - Family Report - Expert Report - Family Law Act 1975 (Cth)



Weight to be Drawn

Evidence

Family Law Act 1975 (Cth)

Family Report

Expert Report



[A] Weight to be drawn from Medical Reporting; Family Report Writer; Evidence

> "The Court is not bound by the opinions of the family report writer. However, where the foundation for the report is solid and consistent with many of the findings the Court has made, then the Court is entitled to give significant weight to the views and opinions of the report writer. In this case, I do so.": Abramsson & Abramsson (No 2) [2024] FedCFamC1F 912, [94].

> "The report of Ms C, regrettably, was only released some few days before the hearing and did not contain any clear or specific recommendations. That is not a criticism. It is not the role of the report writer to determine the outcome of the proceedings. But the report has a number of deficiencies which largely relate to systematic problems. The children, the subject of these proceedings, [X] and [Y], were not seen with the applicants notwithstanding that their application was to have these children live with them in their full-time care. Within the report substantial criticisms were raised by the applicants, Mr and Mrs Thompson, of the mother and when Ms Dean was then seen subsequently with the children, it would appear from the flavour of that report, that very little testing, or reality testing, of the allegations and criticisms raised by Mr and Mrs Thompson was undertaken, if any. As a consequence, recommendations were made in the report, not with respect to the children’s future parenting arrangements, but as follows: a)           Department of Community Services be urgently requested to commission a full comprehensive family report in the matter, and b)           That pending Department of Community Services intervention the current orders be enforced and the children spend regular time with their grandmother. The difficulty with those recommendations is that the Department is not a party to these proceedings and I have no power to compel them to do anything. Secondly, and more fundamentally, Ms C was commissioned to prepare the family report and why it is then recommended at the conclusion of a 27-page document that a State Government agency be seized with that very responsibility beggar’s belief. It is also inferred that Department of Community Services would be invited to intervene in these proceedings. Whether that would or would not have been fulfilled is unclear, although, based on the material that is available in the affidavits it would appear unlikely that the Department would intervene as they have had substantial and repeated complaints, it would seem, not only by Ms Thompson, but substantially by her, and Ms Thompson expresses her disappointment, including to Ms C that the Department has, in her words, “done nothing”. One can infer from that that perhaps the Department did not have any concerns that they felt they needed to act upon. In addition to the reports, Ms Dean has also been cross-examined briefly today and there are a number of documents tendered into evidence; seven in the case of the independent children’s lawyer and two on behalf of Ms Dean. The documents tendered by Ms Dean make it clear that she has engaged with a counsellor [R] by the name of Ms J and has attended a number of appointments with that counsellor, although there have been a number of missed appointment. This is so notwithstanding criticisms with some validly that she has not, in the past, taken up services available for her assistance. I accept from Ms Dean’s evidence that this has perhaps related, to a large extent, to child-minding difficulties and that this has been the cause of a number of difficulties in attending appointments or accessing services. Exhibit ICL1 is a useful and comprehensive summary of allegations of domestic violence and criminal behaviour of Mr Miller and which are corroborated by reference to tendered documents ICL2 being COPS event entries from the New South Wales Police. The four page summary of assaults, by the father, Mr Miller, commencing in 2002, and against Ms Dean and members of his family are extensive and disturbing. The assaults include assaults by him upon his parents and each of them, Ms Dean, his brother, the police and strangers. There are also events in relation to assaults by Mr Miller’s brother, Mr M, including sexual assaults upon minors. Similarly, these are concerns which one can infer Ms Thompson is aware of as she has referred to them in interviews with the report writer Ms C. Ms Thompson is reported as remarking that Mr M, then on the run from New South Wales Police and resident in Queensland, has “been in some trouble in Queensland.”  That no doubt relates to the two allegations of sexual assault upon minors that are levelled against him and for which he is still sought to be questioned in Queensland. There were also other matters that have caused Mr Miller to come to the Queensland justice system’s attention in relation to breaching bail, although it is unclear what he was on bail for, and convictions in relation to threats to cause serious harm, possessing dangerous drugs, possessing utensils and using a telecommunications device to make threats. They are very consistent with his New South Wales criminal record wherein he has charges and convictions in relation to assault, menacing driving, damaging property, contravening domestic violence orders, stalking and intimidating and the like. In relation to the evidence overall, the criticisms that are largely made of Ms Dean are long on allegation and short on evidence. Whilst these are proceedings to which Division 12A of Part VII applies, and accordingly s.69ZT makes clear that certain aspects of the Evidence Act 1995 do not apply to these proceedings, including provisions dealing with hearsay evidence, the evidence that is sought to be led – and using that term in its loosest sense – by Ms Thompson in relation to her concerns and criticisms of Ms Dean would, but for such non-application, be excluded. Section 69ZT though does not as a blanket allow the introduction of hearsay or opinion evidence nor does it in a blanket fashion allow it in. Sub-s(2) of the section provides that the Court can give such weight as it thinks proper to evidence that is admitted through the non-application of the specified parts of the Evidence Act 1995 and the Court is otherwise left, by sub-s(3) with a discretion to apply the Rules of Evidence as strictly as they consider appropriate in the circumstances. This is a case in which the hearsay and opinion evidence and conjecture is sought to be relied upon as the basis for removing two young children, four and not yet three, from the care of their Aboriginal mother and to place them into the care of their non-parent Caucasian paternal grandparents.  In those circumstances I am perfectly and entirely satisfied that the exception in sub-s(3) applies and that the Rules of Evidence can and should be properly and fully applied. Indeed, the probative value of the evidence that is led as the basis of criticism of Ms Dean is, in most respects, so lacking that to rely upon it to make any decision of any importance would be a miscarriage of justice and the mis-exercise of discretion by this Court. There are already enough children removed from their parents and in which indigenous Australians are historically and continually over-represented that I would not be prepared to take any step of the nature suggested by the application of Ms Thompson, now discontinued, without probative evidence strictly in compliance with the Evidence Act. The Rules of Evidence have been developed since Magna Carta and they have developed for good reason. Initially, within the relevant provisions of Magna Carta, rules of evidence were intended to protect citizens from false accusation and false imprisonment.  Freeborn John Lilburne continued that development in the 1640s so as to ensure that all litigants are entitled to face their accusers, to know the case that they are to answer and to test evidence that is put before the Court. Magna Carta, some 800 years ago, made clear that hearsay evidence cannot and should not be relied upon in any process. There are good reasons.  The consequences of relying upon it in making a decision which profoundly impacts, in this case not only upon Ms Dean, but two children, are far more severe than the consequences of excluding evidence which is not in proper form. It is not undertaken to exclude evidence of that nature for the sake of it, but for the sake of delivering justice and equity, and in this case I am satisfied that it must be so. Further, the absence of corroboration of any of the allegations must, in my mind and in this case, give rise to a Jones & Dunkel (1959) 101 CLR 298 inference against accepting that evidence or its truth. It is suggested in relation to a number of reports given by neighbours, allegedly regarding Ms Dean, that they are too afraid to be on affidavit. That may have some validity but there is nothing at all to otherwise specify or particularise the criticism. Similarly, the allegations that are made in relation to reports to the Department of Community Services, as they then were, and the New South Wales Police of attendances at and observations by those officers of the mother, the children and her household, are not before this Court, and accordingly I am not satisfied should be accepted.": Thompson & Dean & Anor [2011] FMCAFam 1074, [17]-[34]. 

> "The family report writer seems to identify the obligation to pay the private school fees of attending A Primary School as contributing to an increase in conflict rather than a reduction in it. The identification of this factor seems not to have been stated by either party but rather was one which the author supposed would occur. Another point of view is that the applicant is prepared to incur annual fees of educating the Child at a private school because he considers that education to be in the Child’s best interests. While the considerations raised by the family report writer are relevant, and I have considered them, they are not determinative and the whole of the case must be assessed.": Licata & Buxton [2019] FCCA 3181, [148]-[149]. 

> "Substantial weight must be afforded to the evidence of an expert, suitably qualified and based on an appropriate foundation. Departure from such evidence requires careful consideration, however the ultimate decision must be that of the trial judge.[382] [382] Muldoon & Carlyle (2012) FLC 93-513 at 86,576 [105].": Khatri & Khatri [2024] FCWA 35, [286]. 

> "The wife sought to rely upon two medical reports prepared by Dr U, a general practitioner. The reports are in relation to the wife, not Mr P, but the reports refer to Mr P having a disability. While the husband concedes that Dr U is the family general practitioner and that Mr P may have attended upon him from time to time, it is not apparent to me, on reading the reports, that Dr U has ever examined Mr P for the purposes of assessing whether he has a disability. The difficulty I have with the reports is that it is not clear, from the way the reports are prepared (notwithstanding the extravagant language used, which borders on advocacy), whether the source of Dr U’s knowledge of Mr P’s asserted disability is because he was told something by the wife or is a consequence of an assessment of Mr P undertaken by him. Consequently, notwithstanding that an application for adult child maintenance falls within Division VII of the Act, and the rules of hearsay and opinion evidence do not apply, I place little, if any, weight on the opinions of Dr U.": Eccheli & Eccheli [2024] FedCFamC1F 234, [72].

> "On consideration, I placed little weight on the evidence of Dr L. She provides therapy to the mother rather than a forensic assessment. She accepts the mother’s version of history without challenge or corroboration. She has not interviewed the father.": Wrenley & Wrenley [2023] FedCFamC1F 979, [79].

> "[249]  The Wife sought to rely on a report of Ms O, psychologist dated August 2022. The Wife told Ms O that the Husband was financially and psychologically abusive and controlling, manipulating and scheming and unsupportive and threatening. Ms O has never met the Husband. Accordingly, her assessment of the Husband is based on the information provided by the Wife. [250]  I note further that Ms O recorded that the Husband “wouldn’t allow [the Wife] to put anything financial in her name”. That is obviously inaccurate, as the house is in the Wife’s name, she had shares in her name and she had bank accounts in her name, from which the Husband was excluded. If that is what the Wife reported to Ms O, she has been misled. In her oral evidence the Wife also advised that Ms O had provided a draft of her letter to the Wife, which the Wife amended, before Ms O provided the final copy. Ms O was not on affidavit. In all those circumstances I put no weight on that report. [251]  Having heard evidence from both of the parties, as indicated, I found the Husband to be a convincing and compelling witness. He denied all allegations of abuse and control. He denied being an unsupportive Husband, or that he had extra-marital affairs. He said he encouraged the Wife to undertake her studies, and that he was an engaged and loving father, doing the best he could, working long hours and then assisting the mother with the children in the evenings and providing care for them on weekends and holidays. He denied excluding the Wife from his financial affairs, and said she was involved in establishing the family trust and attended meetings with the accountant. He said she had access to all accounts and statements, save for the business accounts, which he has provided to her over the course of these proceedings. Conversely, the Wife managed her own income and accounts to the exclusion of the Husband. [252]  The Husband seemed exhausted by the ongoing and unnecessarily drawn out legal proceedings, and the Wife’s attempts to further delay any financial settlement. Despite the provocative manner in which the Wife sometimes addressed him in Court, he generally remained calm and considered in his responses. From around 2014, the Husband regarded the marriage as over, and sought to extricate himself from it. The Wife interpreted his emotional and financial withdrawal from her as abusive and distressing and described it as such to her treating practitioners. Certainly the parties arguments included quarrelling over money, and how they spent their time. But I do not accept the Wife’s assertions regarding coercive controlling behaviour, psychological abuse or violence. ...": Bruil & Bruil [2023] FedCFamC1F 316.

> "[198]  As was said a long time ago, “there is no magic in a family report” (Hall and Hall (1979) FLC 90-713 at p.78,819 (“Hall and Hall”)). Family reports are important pieces of evidence, but report writers are not the adjudicators of disputes, and their recommendations cannot control the outcome; as the Full Court observed in Klein [2010] FamCAFC 150 at [241] referring back to Hall and Hall: …we simply observe that the family consultant is ordinarily an expert witness whose task is to assist and advise the court.The function of the family consultant is not that of an adjudicator. The family consultant brings to bear an entirely different expertise and experience from that of a lawyer or perhaps investigator. The family consultant may, as an expert, express an opinion on the ultimate issue; see s80 of the Evidence Act 1995 (Cth). However, as the Full Court made clear in Hall and Hall (1979) FLC 90-713 at p 78,819: there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities. [199]  Further, unlike the CCE, I have had the benefit of assessing all the evidence and have watched the parties in cross-examination. [200]  I found the CCE’s opinions about the needs of a neurodiverse child to be very helpful, along with the possible impacts on the mother as the residential parent of a neurodiverse child without her parents’ support.": Briedis & Saar [2025] FedCFamC1F 91.

> "[8]  However, there is “no magic” in a family report and no judge is bound to accept the recommendations within it. Whilst the opinions given by a report writer constitute valuable and relevant material which assists the Court in reaching its determination, the Court is required to consider and give appropriate weight to all the evidence. A family report is but one piece of evidence which the Court considers in reaching its determination.1 However, the decision not to follow the recommendations of an expert requires some explanation and demonstration that the matters raised have been taken into account.5.2": Gulcan & Petroni [2024] FedCFamC2F 1314.


[B] Findings made on no Evidence - Error converts from Factual to Legal


[C] Failure to Consider Evidence - Adequacy of Reasons