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Family Reports and the Single Expert: Behrendt & Cadenet  

In parenting proceedings, the court will often require a report to be prepared by a psychologist or social worker as to the dynamics between parents, children, and any other persons that the children live with such as a half-sibling or grandparent. This report requires the parties and the children to meet with the report writer to be interviewed and also to be observed spending time together, where this is appropriate. This report is referred to as a Family Report and can be prepared by a Family Consultant at the court or can be paid for jointly by the parties and delegated to a private psychologist or a psychiatrist. A psychologist or psychiatrist will generally be used in more complex matters where some expertise is required. In the decision of Behrendt v Cadenet, the court considered whether the single expert who had prepared the Family Report report was biased and needed to be dismissed.

Behrendt v Cadenet

The 2120 decision of Behrendt v Cadenet (2) [2021] FAMCA19 relates to proceedings that were commenced in the Federal Circuit Court of Australia seeking parenting orders in relation to a child born in 2011. The mother raised serious concerns about the father’s use of pornographic material and that it may impact his ability to appropriately care for the child.

Appointment of a single expert

The parties jointly appointed a single expert to prepare a Family Report in accordance with Rule 15.5 of the Family Law Rules. The report was prepared on 11 May 2018 and was subsequently released to the parties.

In the report, the expert referred to various allegations made by the mother about the father, which led to the expert to express the view that if those allegations were confirmed, it may lead to a significant issue regarding the father’s paraphilia (a sexual disorder).  Orders were then made for further material to be provided to the expert for the purpose of providing an interim report concerning the possible need to obtain additional evidence from a paraphilia expert.

The expert issued an interim report on 5 February 2020 after viewing a USB stick containing one table and three files. The material on the USB stick was comprised of about 500 professionally shot static images of young attractive women in various stages of undress, including nudity as well as pornographic digital movies with themes ranging from conventional heterosexual activity to more fetishistic activity. The expert raised the possibility that the timing and quantum and the number of viewings of the USB material may be in conflict with the father’s parenting responsibilities, as well as raising concerns about the child inadvertently being exposed to some of the digital movies.

The expert also raised that for the purposes of preparing an updated Family Report, evidence should be obtained from an IT expert assessing the viewing patterns associated with the USB material and a second assessment, being an assessment to be conducted by an expert in paraphilia.

Appointment of another expert

On 1 April 2020, a further expert was appointed to enquire into and report upon the possibility of identifying viewing patterns and of the identity of any person viewing the USB material provided, to the initial expert. That single expert expressed a view that he was unable to provide an opinion as to the identity of the person accessing the USB material nor their viewing pattern. This was particularly because the mother and father shared passwords and each regularly accessed the computer.

On 16 December 2020 the father filed an Application in a Case seeking that the initial expert be discharged and that a new expert be appointed. On 18 December 2020, the parties identified an expert to carry out an assessment in relation to the issue of paraphilia.

The father sought to have a new expert witness appointed and submitted to the court that the original expert witness had accepted information from the mother that was later shown to be exaggerated and inconsistent. The father also submitted that given that it was found that there could be little weight given to the evidence on the USB stick and the expert had relied on that information as part of his report, his report could be given little weight at the final hearing. The father did not go so far as to say that the expert witness was biased but did submit to the court that he had lost confidence in the expert. When pressed on this issue the father submitted that the expert witness had been contaminated in his opinion given he was provided with information that he should not have had available to him when preparing the report and may have subconsciously prejudged factual issues such as the ownership of the pornography which could not be proven with certainty. There was no question as to the expert witness’s experience or expertise.

Was the single expert biased?

The judge decided that he was not in a position to determine the weight the court should place on the father’s use of pornographic material. The judge also said that it was not a matter for the expert witness to determine the probative value of the pornographic material. It was clear that the father was trying to allege that the expert witness was biased and the judge was not satisfied that this could be established. The father’s application to dismiss the original expert witness was dismissed.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Alison Brown - Special Counsel - Sydney

This article was written by Alison Brown - Special Counsel - Sydney

Alison holds a Bachelor of Laws and is also a registered Family Dispute Practitioner (mediator) and is passionate about providing the best family law solutions to her clients. Alison understands that there is time to mediate and a time to litigate. She has over 10 years’ experience as a family lawyer and has worked on an array of matters including...

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