Family Reporters overstep the Mark
 By Charles Pragnell |
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| Do the recommendations of Family
Reporters prejudice fair and just Court Hearings?. Several impartial commentators and those who have experienced the Family Court processes, have often said that Family Courts are far too influenced by Family Reporters, Independent Children’s Lawyers, and other Expert Witnesses and impartial observers may be led to this conclusion in the reading of many judgements available online. It is further said that in doing so, such court appointed officials may often exceed their role and violate legal principles and procedures. The fundamental rules of evidence are that all evidence submitted to a Court must be relevant to the matter before the Court and that it assists the Court (Judge) in determining the facts at issue. All other evidence follows on from this basic rule. If the evidence submitted to Courts by Family Reporters et al does not help to prove or disprove the facts in issue, then it is a hindrance and a distraction to the Court and may be misleading to the Court. The evidence submitted by Family Reporters et al must also be objective, impartial and balanced, if it is to assist the Court and that is also the requirements of their professional Code of Ethical Conduct and Practice. Independent Children’s Lawyers often give opinions regarding the developmental needs of children and how those needs can best be met, and psychiatrists and psychologists often submit evidence regarding whether or not a child may have been abused and on domestic violence issues, and the substantiation or rejection of allegations regarding such occurrences. Yet neither lawyers nor psychiatrists have the necessary knowledge, training, nor expertise in such matters and Courts may rule such evidence as `Outside of their area of expertise’, a extremely important principle to be upheld in submitting expert opinion. In such matters they should always defer to the respective experts in those areas of professional expertise and they and the Courts should seek their views and opinions on such matters. An important principle which builds on this fundamental rule is that evidence must not be accepted by the Court which addresses the ultimate issue. In other words it is for Judges to decide, after hearing all of the evidence from all sources, whether, or not, a matter is proven. There is some dispute as to whether the Rules of Evidence apply to child-related proceedings (Sect, 69ZT of the Family Law Act 1975), but this is designed to ensure the proceedings are carried out with alacrity and expeditiously and to provide protection for children from evidence which may be harmful or otherwise cause distress to a child if the child is a witness in the proceedings. The normal rules of evidence should apply in all other respects. All other rules of evidence should therefore apply in all child-related proceedings to ensure an outcome which is fair and just and in the best interests of the child. Massive amounts of documentary evidence is often submitted to Family Courts which could be upheld to be irrelevant to the central issue under consideration and do not help the Court to be expeditious in family matters. Family Reporters et al often submit recommendations as a conclusion to their reports yet such recommendations could be held to be prejudicial to a fair and just hearing as they pre-determine the issue for the Court and pre-judge the outcomes and could be an undue influence on considerations of other evidence. In the Federal Court, Justice J. Lindgren held that Allstate Life Insurance v ANZ Banking Group [No.33] that, “The rationale underlying the fundamental principle may be expressed in various closely related ways: to admit such evidence would be to permit abdication of the judicial duty and usurpation of the judicial function; such evidence cannot be allowed to be probative or to rise higher than a submission; such evidence is necessarily irrelevant.” This would appear to be the legal precedent for the correct and proper application of Section 80 of the Evidence Act 1995 and indicates judicial concerns that expert witnesses may be interfering with determinations of the ultimate issue which is the right and duty of the Judge. Similar concerns and more specific to Family Reporters appear to have been expressed in the Full Court by Judge J.Dawe who ruled, among other things, in rejecting the recommendations of a Family Reporter, that : “The Family Reporter does not have the opportunity to weigh and test the evidence as a trial judge has”; and “The court has the advantage of a complete forensic process whereas the report writer does not.” Yet despite such serious misgivings regarding the recommendations of Family Reporters especially when the Family Reporter has not had the benefit of knowing the full and complete evidence which may be submitted to the Court and to weigh its respective value to the Court before considering a recommendation as Judge Dawe states, it is very rare for the reports of Family Reporters et al to be rejected which leads to a possible assumption that Judges are too readily influenced by the Family Reporters and there may be pre-judgements of trials without the complete facts. There are also questions to be raised as to whether the fears of Judge Dawe of abdication of judicial duty and usurpation of judicial function may be occurring in the Family Courts. It was the common practice in U.K. Courts that recommendations of Court appointed officials could only be submitted after a full hearing of all of the facts in dispute and that opportunities had been given to both parties to refute and rebut any evidence and arguments against them, and for the Judge to have made a decision of proven. How it is possible for any Family Reporter to make valid recommendations in the absence of these two most important elements of the due process of law is beyond understanding and reconciliation with legal principles. The submission of recommendations by Family Reporters et al to Family Courts may be arguable on the grounds of judicial expediency but serious questions have to be raised regarding whether they are legally permissible and are pre-judging and prejudicing outcomes and threatening to fair and just hearings. Charles Pragnell Expert Witness – Child Welfare and Child Protection. *The views expressed in this article are based on personal studies and professional experience over several decades and are not to be construed in any way as legal advice. Back |
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