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How To Challenge a Family Report

There are a number of extremely difficult and emotional moments in family law Court proceedings. Reading particularly scandalous, hurtful or untruthful affidavit material from a former spouse, for example, is never easy. Nor is sitting in the witness box at Court being grilled by the other party’s barrister about all manner of personal information. Similarly, it is undeniably confronting to read a Family Report which describes and comments on matters such as your demeanour, your interactions with your children and answers to their questions, and ultimately, makes recommendations about what is in the best interests of your children.

A Family Report is usually an extremely important piece of evidence in parenting cases, both due to the assistance it provides to the Judge determining the case and also its ability to often reality check parties and form the basis of sensible settlement negotiations.

Just like a barrister can object to an irrelevant question put during cross-examination in the Courtroom, or seek that prejudicial evidence in an affidavit be struck out, there are practical things that your legal team can do, where appropriate, to help protect you from the impact of an unhelpful Family Report. Put simply, like all things, sometimes a Family Report can get it wrong. In these cases, it is important to understand how to challenge the contents of a Family Report to cast doubt in the Judge’s mind about its conclusions and, if possible, have the Family Consultant reconsider their position as they have set it out in the Report.

The Full Court of the Family Court of Australia have elaborated on the role of Family Reports in Court proceedings on a number of occasions, including the decision Hall and Hall [1979] FLC 90-713, which has been cited with approval in a number of more recent Full Court decisions.

Whilst I recommend reading this decision in its entirety, the key points which come from this decision are the following:

  • That “there is no magic in a Family Report” and a Judge is not bound to accept it. To do so would be an abdication of a Judge’s responsibilities.
  • A Family Report writer’s views will normally have weight with the Court because of their expertise and experience as an expert in this field. They do not, however, usually have the same opportunity as a Judge to weigh the evidence, observe the character of the witnesses in Court, or make findings of fact based on all of the evidence before the Court.
  • It may be desirable to question a Family Report writer in a matter about the basis of their recommendations during cross-examination of them. Indeed, a lawyer would be failing his duty to his client in some cases, if he or she did not do so in the light of the client’s instructions to them.
  • To cross examine a Family Report writer is to do no more than to test an expert witness in the same way as any other expert witness maybe tested or challenged. They do not have any special privileges in this regard.

If you have questions or concerns regarding the contents of a Family Report in your matter, or a family law enquiry more generally, we invite you to contact Armstrong Legal’s family law team to arrange a no obligation initial appointment with a family lawyer.

Image Credit – Gajus ©

Written by Peter Magee on February 6, 2017

Peter is a partner of Armstrong Legal and head of our Family Law Division. He has over 15 years’ experience. His past experience dealing with large cases benefits his family law clients by providing insight into complex and tactical issues. As a result, Peter can often achieve settlements outside Court that may otherwise have not been achievable. View Peter’s profile

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