Abuse allegations; Expert evidence and the opinion of the Full Court

In an article by Sperling J presented at the Supreme Court of New South Wales Annual Conference in 1999 and published as “Expert Evidence: The Problem of Bias and Other Things” (2000) 4 The Judicial Review 429, his Honour observed at 432:
“The actual role of the expert witness, particularly in major litigation, is that the expert is part of the team. He – it usually is a “he” – contributes to the way the case is framed and indirectly to decisions as to what evidence is to be got in to provide a basis for his opinion. His report is honed in consultation with counsel. Then, when it comes to the trial he is a front line soldier, carrying his side’s argument on the technical issues under the fire of cross-examination.Natural selection ensures that expert witnesses will serve the interests of their clients on this way. If the expert measures up he will be kept on and he will be used again by the same client, the same solicitors and others. If he does not measure up, he will be dropped from the case or never used again by anyone. He then disappears from the forensic scene.An appearance of objectivity is a marketable attribute. Cross-examination or contrary evidence may unmask dissemblance or may not. A judge is ill-equipped to diagnose bias in an expert witness. It is likely, therefore, that the incidence of bias as assessed by surveyed judges in the Freckelton report is an under-estimate.Judges are interested in valid fact-finding. So long as the adversarial system continues unremittingly, however, the interests of litigants in presenting expert evidence that may win the case will prevail over the interests of judges in obtaining objective assistance on technical issues as a basis for valid fact finding.”

We are of the opinion that the case highlights the need for reform in the area of expert evidence. In this regard, we note that the previously cited article by Sperling J offers a number of recommendations which we see as applicable to the family law jurisdiction, such as:
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Promulgating a code of conduct for expert witnesses;
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Consideration of amending statutes to make breach of a duty of objectivity professional misconduct;
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Greater use of the power to refer out technical issues for determination by an expert referee; and
•
Amendments to the Rules of Court in respect of matters such as an express power to limit expert evidence to that of a single expert selected by the parties or the Court in appropriate cases.

10H Confidentiality of communications in family dispute resolution

10H Confidentiality of communications in family dispute resolution
(1) A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section.
(2) A family dispute resolution practitioner must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
(3) A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by:
(a) if the person who made the communication is 18 or over—that person; or
(b) if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii) a court.
(4) A family dispute resolution practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of:
(a) protecting a child from the risk of harm (whether physical or psychological); or
(b) preventing or lessening a serious and imminent threat to the life or health of a person; or
(c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d) preventing or lessening a serious and imminent threat to the property of a person; or
(e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f) if a lawyer independently represents a child’s interests under an order under section 68L—assisting the lawyer to do so properly.
(5) A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families.
(6) A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60I(8).
(7) Evidence that would be inadmissible because of section 10J is not admissible merely because this section requires or authorises its disclosure.
Note: This means that the practitioner’s evidence is inadmissible in court, even if subsection (2), (3), (4), (5) or (6) allows the practitioner to disclose it in other circumstances.
(8) In this section:
communication includes admission.