For a parent, a family report may cause considerable anxiety or relief depending upon the recommendations that are made for children’s living arrangements. Find out from our Queensland Family Law Team the process of a family report, and how to deal with them.
This article looks at the family report; the degree of its importance in any legal action where a party seeks Orders concerning children and whether there may be scope to challenge recommendations made by a family report writer.
At LGM Family Law, unless there are particular reasons not to do so, we will recommend to our clients that every effort is made to negotiate an agreement with the former partner about children’s living arrangements, without going to Court.
However, if agreement cannot be reached and it is necessary that a Court action is instituted, it is important to realise that it is very likely as part of that legal action that the Court will make interim Orders for a family report to be delivered by a family report writer. Refer also to Rule 23.01A Federal Circuit Court Rules 2001
Contact our experienced and friendly Brisbane child custody lawyers and child custody lawyers North Brisbane for free initial advice over the phone about your particular circumstances. Read on now for further information about the impact of family reports in parenting proceedings.
The family report writer may be appointed by the Court or may be a private report writer jointly instructed by you and your former partner.
The report writer will interview you and your former partner separately and will also see the children. He or she will likely also want to observe each parent in company with the children.
Depending upon how your action develops, it may be that there will be more than one family report delivered before you reach any trial or agree Orders with your former partner and finally settle the legal action.
The family report delivered by the report writer forms an important piece of evidence at any trial of your matter.
You can expect that the family report will include recommendations to the Court as to the time that the children spend with each parent. Other recommendations may relate to the number of phone calls that a parent may make to the children whilst they are in the care of the other parent.
A family report may make general recommendations, for example, for the children to spend three to five nights per fortnight with the parent who does not have primary care and for that parent to be entitled to make phone calls at least once every second day to the children when they are in the care of the parent with primary care.
A family report may also include much more specific recommendations, by way of example only, that the children spend four nights per fortnight with the parent who does not have primary care, even specifying the actual days on which those four nights occur in each fortnight as well as the specific days and time of day on which a parent may make phone calls to the children.
Depending upon the kind of recommendations made in a family report concerning your children, as a parent, you may feel positive about the family report or its recommendations may cause real despair.
However, it is important to appreciate that a family report, whilst often of real assistance to a trial judge and often a large piece of the evidence, is still only one piece of the evidence before the Court. It is always for the trial judge to determine what the children’s living arrangements will be, after the judge has assessed all of the evidence before the Court.
Whether you like the family report writer’s recommendations for your children or not, you may miss important opportunities to properly prepare for a trial if you or your lawyers focus solely on the content of those recommendations and assume that those recommendations will be accepted by the trial judge. It will be very important, for example, that your lawyers carefully consider whether or not the recommendations made in the family report are supported by the facts and fall within the area of the report writer’s specialised knowledge.
The trial judge will consider all of the evidence, including the family report, and assesses what weight or importance he or she will give each piece of evidence. As part of this process, the judge sees the cross examination of parties and other witnesses who may include the family report writer. If your lawyers wish to do so, they may arrange for the report writer to be called to attend at the trial to answer questions about the report writer’s recommendations and the basis upon which he or she made those recommendations.
Many family reports are well written, including details of the family report writer’s area of expertise and the facts and/or academic research upon which the report writer has based his or her recommendations for your children.
Generally at law, evidence of an opinion is not admissible and will not be allowed by a Court to prove a fact about which the opinion was expressed. However, that rule does not apply to opinions of an expert where the opinion is based wholly or substantially on that expert’s specialised knowledge.
Important case law in this area has set out in detail what are the requirements to be met for expert opinion evidence to be admissible (ie., broadly, for it to be allowed to be considered by the judge).
The basic principle is that the opinions given by a family report writer must be based upon facts.
The family report writer must have an agreed or demonstrated field of “specialised knowledge”. It must be demonstrated that the report writer has become an expert in an identified aspect of that field. His or her opinions or recommendations included in the family report must be wholly or substantially based upon that expert knowledge. If they are not, there may be grounds upon which a party may attack the validity of a family report or aspects of it.
Family report writers fall within the broad area of social sciences, an academic discipline which does not necessarily admit of one right answer. It is an area where different experts may vary greatly in their individual assessment about the same set of facts. It is for this reason that it may be appropriate for your lawyers to consider questioning a family report writer about very specific recommendations; for example, recommendations that children spend 4 but not 5 nights with one parent or attend one particular school but not another or receive phone calls from a parent only on specific days of a week.
If a family report writer reaches an opinion based upon facts which he or she has “observed” during interviews with the family, the report writer must identify those facts which must be proven.
If the family report writer’s opinion is based upon “assumed” or “accepted” facts (such as research), those facts must be identified by the report writer and be proven in some other way. The family report writer is required to refer to research and literature on which he or she has relied in reaching opinions concerning your children as well as setting out any that they have considered but not accepted or given lesser priority. These considerations of the family report writer are another area where your lawyers may consider it appropriate to question or cross examine the family report writer about his or her reasoning processes in making the recommendations in a family report.
If a report is not favourable to your case, your lawyers should also give careful consideration to what parts of the report may be challenged on the ground that opinions or recommendations expressed by the family report writer are not supported by facts in a form which is admissible (ie., in a form which may be considered by the Court).
It will be important that your lawyers carefully assess whether or not any recommendations made by a family report writer are properly supported. Even if those recommendations support your case, you need to know what if any weaknesses there may be in the family report. Your former partner may try to rely upon any such weaknesses in order to challenge any or all of the recommendations made. You will want then to shore up any of those weaknesses to the extent that you can do so to more fully support your case. For example, further affidavit material may be necessary in order to evidence facts upon which you rely.
A knowledge of the relative strengths or weaknesses of a family report will also allow your lawyers to make an assessment of the likelihood or otherwise of recommendations in the report being accepted by a trial judge. That assessment and the consideration of other evidence before the Court will assist you in determining whether the likely outcome at a trial warrants continuing to trial or whether it will be better that you compromise and settle with your former partner, thereby avoiding a trial.