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Expert witness family court controversy

By June 15, 2020February 23rd, 2024No Comments

Expert witness: After a family court report writer recently pleaded guilty to child sex abuse charges, there have been calls for the family court to review the cases he was involved in, says the ABC. The ‘celebrity psychologist’ Bob Montgomery provided family reports to the court as a private expert witness, so was not employed by the family court itself. But the case has again raised concerns over governance of family report writers, whether they are directly employed by the court or acting as external contractors employed by parents and lawyers.

Montgomery, who ran a Gold Coast private psychology practice, had once appeared on TV reality show Big Brother as a consultant. He also appeared in other media, including on ABC radio. But it’s his role as a family court report writer that is most alarming.

There are calls for reviews of the child custody cases in which he was involved:

He acted in at least seven Family Court cases as a family report writer or single expert witness, a role that can include assessing the credibility of child sex abuse allegations in custody disputes.

Dean of the University of Queensland’s law school, Professor Parkinson, says the development means parents could have an avenue to have their custody ruling overturned but adds there may be more cases that did not proceed to trial which ought to be reviewed:

“It’s also the cases which might have settled on the basis of an adverse report from the expert where the advice was that there was no point continuing with the case any longer. It’s important that anybody who was involved in a case involving Dr Montgomery as an expert report writer, does contact their lawyer or contact the court to see whether anything can now be done.”

Tensions over family court expert witnesses have been inflamed numerous times in recent years. There have been repeated calls for major changes in the way the court system operates with regard to expert witnesses. Some of the changes proposed in recent years have been that the family court introduce a mandatory accreditation scheme for family report writers and “lift the veil of secrecy around them after concerns about the quality of their reports and qualifications”.

The ALRC report last year was similarly critical on the issue. The Government has not yet officially responded to that report. Instead it has since opened another parliamentary inquiry into Australia’s family law system, controversially installing Pauline Hanson as deputy chair. The previous parliamentary inquiry in 2017 had also raised the issue of family consultant governance. It recommended “abolishing private family consultants” and it too had proposed a national accreditation system including a complaints mechanism for parties which felt family consultants do not meet the required professional standards.

There were also concerns over monopolies, because judges can specify which private family report writer parents are to use, rather than supply a list of practitioners in a ‘register of approved suppliers’.

The court’s role

There is a lot of confusion in the community over expert witnesses. It’s important to be very clear that this case involves a private expert who is not engaged or employed by the family court, but by the parties or Independent Children’s Lawyers involved in a case. The family court spokesperson clarified this to the ABC:

“Unlike [the Family Court’s] in-house experts, known as family consultants, Montgomery was a private expert and is not and has never been employed by the court. As with all other courts, the Family Court does not have control over witnesses who appear in court, including private experts. Private experts are usually engaged by and paid for directly by parties or Independent Children’s Lawyers — not the court. A private expert is very different to family consultants who are trained, monitored and employed by the court. It would be incorrect and misleading to imply that the management of the two roles are the same.”

The Family Court website states:

Family consultants work within an extensive clinical governance framework, are subject to quality assurance mechanisms, and are required to participate in regular professional development and supervision.

But as the ABC notes:

The ALRC [report] found there was no effective way of holding report writers to account if they failed to meet professional guidelines set by the court.

The family courts standards, the “Australian Standards of Practice of Family Assessments and Reporting”, outline good practice but practitioners are “not compelled to comply”. This leads to the criticism that at present, practitioners operate beyond the rule of law.

And governance of private experts who are external contractors looks set to remain a controversial issue and will need to be addressed as family law reform proceeds.

Professor Parkinson told the ABC the community needed “experts to be independent, professional and have no other vested interest. There is a need for the public to be confident that justice is done in these cases.”

Per the ABC:

A Family Court spokeswoman said it had received no complaints but parents or their lawyers were “always free to contact the court directly about their cases”.

Source: ABC

Here at Alliance Family Law, we have expertise in instructing expert witnesses to ensure that relevant evidence is properly extracted from them in order to be introduced into court. If you need assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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