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Family Court - Disagreeing with the Expert Report - What to Do?

Discussion in 'Family Law Forum' started by Mum79bronte, 19 October 2015.

  1. Mum79bronte

    Mum79bronte Active Member

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    Has anyone been through an Expert witness appointment with a family psychiatrist to have the report be very much swayed in one direction. Some of the recommendations are completely ridiculous (and not based on any facts in the case). He interviewed by phone a few people who deal with our children and some of the things they have said are not correct either but just a vague opinion.

    One of the people he spoke to was my son's teacher. She said 2 things that were absolutely not correct and if they were, they would have to be in his file for mandatory reporting reasons. I have ordered his file under the FOI act. Aside from that, is it acceptable for me to email the teacher asking her a few questions to clarify the responses she made? I don't know if that is an okay thing to do but her responses don't give a the whole picture of what she is commenting on.

    When I read the report it was almost like he knew the other party as it goes against all the evidence in our affidavits (and the views of the ICL). My problem is that I am representing myself and very strapped for funds and I've been knocked back for Legal Aid. I am overwhelmed by the report and also unsure of what I can do.

    I've read I can ask the Expert Report writer 'clarifying questions' (not sure what that means) and that I can cross examine him in family court. I think both of those will cost a lot money (given the report was 14,000) that I don't have and the thought of having to cross examine him is terrifying!

    I feel like I am stuck with it and the judge will unlikely going against an expert I would think.

    Any help or information would be greatly appreciated.
     
  2. sammy01

    sammy01 Well-Known Member

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    Hi , So look. I don't think you're likely to like my thoughts. Firstly, I'm a teacher so from that perspective, yes you can ask the teacher to explain what they wrote, so feel free to email the teacher.. BUT I would refuse to respond. In fact IF I was in that position I would not have made any statement for the court either, at least NOT without the explicit direction of the principal... But I definitely would not respond to your email other than perhaps to say NO comment.

    Ok so the teacher is against you. So is the 'family psychiatrist' but I think you mean the family report writer? So here is the thing... all of these experts are expressing their opinions. None of them have a reason to hate you or to make stuff up right. So maybe you're gonna have to accept that if the family report is very much swayed in one direction then the reason for that is because they have concerns. These people do not make stuff up and they only get to do that job once they proven that they are competent. So maybe you need to change the direction of your case to factor in their input. Especially the family report writer because the court holds that information as very significant in determining decisions.

    Just out of interest, what is the report writer saying (in summary) and how does it differ from your perspective. I'm assuming you're the primary carer of the kids and you're wanting to limit the other parent's time with the kids?

    Ok the next bit is gonna hurt, but realise I've taken time out of my life to write this so there is no malice here BUT maybe your thinking is not in-line with the courts and the legislation and as such you may need to change your thinking.
     
  3. Mum79bronte

    Mum79bronte Active Member

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    I appreciate you taking the time to reply however I don't think you completely understand what I'm saying.
    It is an expert report, not a family report. We had one of those (which had a very different take on things).

    My issue is that the report contradicts actual evidence. For instance, there are 3 years of consecutive Avo's plus 2 breaches of those avo's. The report writer says 'there is no history of domestic violence'.
    As for the teacher, I'm one too. I'm not concerned about whether they wish to respond, it's more a legality of 'is that a done thing' or do I have to question her in court in order to fully explore what she has said.
    If she says things, which are incorrect and I can prove that, and the expert bases opinions on that then that is a big problem for me.

    On the day of the report the expert spent 1.5 hours with me and the remainder with the kids, the other party and several sessions of the kids with the other party.
    My assumption was that he would base his recommendations on the evidence submitted to court and our personal interviews.
    It feels as though the court documents were not thoroughly reviewed.
    So it's not as straightforward as 'the teacher and the expert disagree with you so have a look at yourself'.
     
  4. AllForHer

    AllForHer Well-Known Member

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    AVOs are granted based on risk of violence, not actual acts of violence, and a breach of an AVO does not amount to evidence of domestic violence. Were the children named in the AVO? Who brought the AVO - you or the police? What was the nature of the breach? Was the breach against the children? Were the children named parties in the AVO?
     
  5. Mum79bronte

    Mum79bronte Active Member

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    The police applied for the avo after responding to an incident. Yes the children were all named.
     
  6. AllForHer

    AllForHer Well-Known Member

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    So there was only one incident which occurred at least three years ago, and there have been only two breaches of the AVO during that three-year period? Is that correct? Depending on the nature of the AVO, it can be breached by accidentally being at the local shopping centre at the same time as you.

    Remember, an AVO is a consideration in parenting orders, but it by no means determines the outcome. If one incident occurred three years ago, wasn't accompanied by a criminal charge, and there have been only two breaches of the AVO since, the family court isn't going to give it as much weight as you may be hoping. From the very limited facts you have provided, it doesn't sound like a convincing pattern of violent behaviour, and further, if the acts always occurred against you, but not against the children, the court would not consider the children to be at such risk that they shouldn't have a relationship with the other parent. It's the children's best interests the court is concerned with, separate to the best interests of the parties.

    You've also voiced concern that not all the evidence has been taken into account, but unfortunately, evidence simply isn't evidence until it's been tested. It remains nothing more than he-said-she-said until then, so the expert witness has to assess what he-said in his affidavit in correlation with what she-said in her affidavit, and it must fill in the disparities between the two with what it learned from the interviews.

    As for the teacher, I would not encourage contacting them. They're a teacher, their job is to teach your children. It's not their job to get caught up in the heart of one student's family life. It's better to assume their input to the expert witness was honest and take guidance from what they've said than it is to contest it.

    My suggestion is to apply the advice of the expert witness to your case and adjust accordingly, because not doing so will have the court questioning your capacity as a parent, rather than the capacity of the expert witness. On top of that, the nature of the court doesn't simply enable parties to buy an expert opinion in their favour. In any case as well, the expert opinion report will be considered in conjunction with the family report in court, and the court is obliged only to consider it. That doesn't mean it will give it significant weight.

    If you wish, you can seek to have the evidence struck out, but you will need to provide a persuasive reason for the court to do so. Arguing that you feel all the evidence wasn't taken into consideration reads very similar to "I don't like that they didn't agree with me", and isn't very convincing.

    I'm sorry if this isn't what you want to hear, but one of the common mistakes self-represented litigants make is not listening to opinions that doesn't match their own. I suggest against making that same mistake.
     

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