Thomas and ANOR & Franklin and ANOR 2014 FamCA 1037

There was dispute about the admissibility of a family report prepared by an expert when interim parenting orders were requested.  An ICL can tender a report from one expert assessor without a Court’s permission, whereas parties require the permission of the Court before they can tender expert reports.  An application was made to exclude from evidence a family report submitted by the ICL on the grounds that the assessor had made a fundamental failure to consider all of the relevant information in the family report (expert evidence unsatisfactory).  A family report had recommended that the child aged 4 years transfer from the care of the applicant (a foster carer) to the care of the mother (biological parent).

The judge provided definitions of expert and expert witness.  An expert is: “an independent person who has relevant specialised knowledge, based on the person’s training, study or experience.”  An expert witness is: “an expert who has been instructed to give or prepare independent evidence for the purpose of the case.”

The duty of an expert witness expressed in Judges Rules includes: a – to give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability; and b – to consider all material facts, including those that may detract from the expert witness’s opinion.

Parties acknowledged that the applicants had been foster carers for much of the child’s life, and they were like family to him.

The mother had not made contact with the child during a 12 month period when she was in another state (contact limited involvement), and this was interpreted by the Department as the mother abandoning the child.  The assessor stated that the mother had been meeting Departmental case goal plans, but this statement was reportedly inconsistent with Departmental records.  The assessor did not acknowledge that Departmental plans were for long term guardianship rather than for reunification.  The applicant submitted that the assessor had deliberately failed to mention contents of a Case Review Report that were adverse to the mother and that, in doing so, the assessor displayed a lack of objectivity.

The applicant submitted that the family assessor had: failed to review relevant material, failed to seek input from the child’s treating psychologist despite being asked to do this by the ICL, and failed to review a Departmental Case Review Report in any meaningful way so that the family report was so factually inaccurate or deficient that the opinions expressed within it were not objective or had so little probative weight as to render the family report irrelevant (expert evidence unsatisfactory).

The applicant submitted that the assessor brought a preconceived view to his assessment of the child’s circumstances and that this view reflects an absence of impartial opinion and an underlying personal bias against foster carers like the applicants who later seek parenting orders in the Court.

The judge found that the assessor had commenced his assessment of the competing proposals for parenting orders involving the child with the preconceived view that the child should live with his biological parent as long as the mother was ‘willing and able.’  The judge found that the assessor had expressed a personal opinion about whether foster carers in general ought to have rights in the Court to advocate for, and to seek orders in relation to, children placed into their care by State authorities.  The judge found that the assessor considered possible ramifications for other children living with foster carers rather than focusing solely on consideration of what was in the best interests of the individual child.  The judge found that a reasonable reader would conclude that the assessor determined that if the mother was willing and able to care for the child, then his recommendations would be supportive of this result. The judge found that the assessor brought a predetermined view rather than arriving at a view based on a consideration of the material available to him (partisan).

The judge found that the assessor had failed to discharge the duty imposed by the Judges Rules upon expert witnesses (objectivity).

The judge found that deficiencies in the Family Report warranted the report being set aside and not admitted as evidence (evidence admissibility).  A new assessment was requested.