The courts have always given much weight to family consultant reports and expert opinions.
Family consultants meet with parents and their children not long after they are appointed by the court. They are appointed when mums and dads are unhappy with the current parenting arrangements for whatever reason and have made an application to the court seeking certain orders about parenting.
Super quick assessments
A parent normally has one meeting with that consultant by themselves and in most cases another meeting where the child is present. These one or two relatively short meetings, if they don’t go well, can lead to reports where one parent is portrayed in a lesser light than the other.
Reports that highlight one parent as being a deficient parent (for whatever reason), can eventuate into court orders where that parent may be given all sorts of conditions from limited access, to supervised parenting, to no parenting at all.
A family consultant report, acted on by the court, can have devastating consequences for the parent left behind.
A recent investigative report on the ABC website entitled “Unaccountable” noted many parents’ concerns about the increasing role the “family consultant” plays in court proceedings. The problem with many reports written by these court appointed experts is that they are being seen as highly biased to one party. As the ABC report noted, “In the family law system psychologists, psychiatrists and social workers can give evidence and impact cases, but a review has found no-one is keeping them in check”.
From a psychologist conducting interviews in wine bars, pubs and other places without privacy to a particular Sydney psychiatrist known as a ‘serial failure’ when it came to his role with the court, to children being intimidated and threatened at interview by psychologists to social workers writing subjective reports favouring one parent because they didn’t like the other. Is it any wonder many parents are concerned about these “Gods of the court” that seem accountable to nobody.
A long-awaited report into the Family Court by the Australian Law Reform Commission (ALRC) urged the Federal Government to tackle concerns about the quality of these court appointed experts by introducing mandatory accreditation and lifting the veil of secrecy around them.
Dodgy report writing training
Presently, it doesn’t seem to take much to become a report writing expert. The Association of Family and Conciliation Courts (AFCC) which describes itself as “an interdisciplinary association of professionals dedicated to improving the lives of children and families through the resolution of family contact” is one of the lead players in training professionals in the area of report writing.
Now you would imagine that the training any psychologist, psychiatrist or social worker would need to write these do or die reports would be quite substantial. Alas, that is hardly the case.
Available online are the four modules you need to do to qualify as a Family Report Writer.
Pay the money, download the 4 modules and do them without any oversight or examination in the comfort of your own home and bingo you’re an instant family law expert who can assess parents and children!
So who can be a family consultant and what guidelines must they follow to when writing a report?
Family consultants tend to be psychologists or social workers who specialise in child and family issues after separation and divorce. However, as mentioned above, it seems you either learn your court report writing skills as you go or get them via an online course, with little direction. That doesn’t seem like very thorough training considering the ramification a negative assessment can have on one parent.
And when these reports are done with bias and/or inaccuracies and complaints are made by parents, the relevant investigative authorities are ducking and covering to protect their members. The ABC investigation notes that the Health Care Complaints Commission after receiving a dozen complaints about one psychiatrist report writer, eventually stated after their investigation that “we took this matter seriously… but…the commission does not have the power to investigate a complaint about the conduct of an expert witness. This includes even if a complaint were to be referred to the commission. The ALRC report in March of 2019 found that psychiatrists and psychologists in private practice who provide family reports played a “crucial” role in legal cases.
It also found there was no way of holding them to account if they failed to meet the professional guidelines set by the court.
So even though there is a complaints process in place by the courts, it may indeed come to nothing or more to the point be looked at only after your family law matter has been finalised. Not really a big help when the horse has already jumped the cart.
What can the court do about below par family consultants?
The Court’s Child Dispute Services is responsible for overseeing the work of family consultants. If you are concerned about the conduct of a family consultant, or the report or memorandum they have provided to the Court, the appropriate forum for raising this is within the proceedings by cross examining the family consultant. That can be a real difficulty for self representers because there are certain ways you need to do this and it does take much skill.
If you wish to cross-examine the family consultant who prepared your report, you (or your lawyer if you have one) must write to the family consultant at least 14 days before the hearing in order to ensure they are available.
If you are seeking to have the family consultant assigned to your case replaced with a new family consultant, this can only be done by applying to the Court within the current court proceedings. You would make an application in a case with a procedural order that the family consultant be replaced. Again, your affidavit would need to have compelling evidence to explain why this needs to be done. Again, an onerous task for the self representer! If you need help with these applications we would be happy at The Legal Eagle to assist at our usual low cost.
Complaints about family consultants, or the assessment they have conducted, cannot be investigated nor brought to the attention of the family consultant while your matter is currently before the Court. This is because the family consultant is an expert witness and doing so could be considered to be interfering with a witness in a matter.
You can also bring to Court’s attention issues relating to the conduct of an independent children’s lawyer but only if their conduct has adversely affected your current case. The Court cannot deal with such complaints after final determination of your matter.
It’s always worthwhile writing to an ICL to give them an understanding of your problem with them before going down a complaint pathway.
By the way, in relation to complaints about Independent Children’s Lawyers, you may wish to also notify the relevant State or Territory legal aid body responsible for appointment of the Independent Children’s Lawyer in your matter. Alternatively, there is also the Legal Services Commissioner.
One of the things that I find saddening about this is that no parent, already under stress from enduring a family law matter, should have to be also lumbered with biased or incompetent report writers and “experts”. This has been going on for far too long and simply adds more frustration to the parties involved. If you suspect you have a poor ICL, family consultant or expert act quickly and make your concerns very clear to the court. If that individual needs to be cross examined get a lawyer or barrister involved for that process rather than take on that task yourself.
Oh and If you want my blunt view on Independent Children’s Lawyers who don’t really represent children at all click HERE.
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