Weston & Laurent 2013 FamCAFC 34

A couple disputed parenting orders, with the father alleging neglect while the child had been in the care of the mother, and the mother alleging family violence by the father (mutual accusations).  The mother and her new partner disputed some aspects of a report prepared by a family consultant, saying they had been misquoted and that some information was mistaken.

Counsel for the mother applied to view a copy of the family consultant’s notes before a hearing but this request was denied by the judge.  The judge ordered that the child live with the father rather than with the mother.  The judge allowed counsel to view only those parts of the notes that were relevant to a previous cross examination. The mother appealed.

The appeal court found that the trial judge was plainly in error by refusing to let the mother’s counsel, and indeed both counsel if the request was made, to inspect notes of an expert witness before that witness gave evidence (confidential).

The appeal court ruled that family consultants are not privileged  and although they are a court appointed witness they are analogous to an expert witness who is not part of the court so their evidence may be challenged in the same way as any other expert witness may be tested or challenged.  The appeal court ruled that counsel can ask to see notes used by an expert to form an opinion, without first establishing grounds for concern.  The appeal court ruled that it is reasonable for counsel to see the questions put to the child and the child’s answers to determine whether a proper line of open ended questions was applied (questions open ended).

The appeal was allowed.