What’s expert evidence?
Expert evidence is a testimony given provided by a qualified specialist to assist the court in understanding matters beyond the ordinary knowledge of a jury. It is opinion evidence where the person giving the testimony can have specialized knowledge, training, qualifications, or experience relevant to a matter in dispute in legal proceedings.
The duty of the expert is to provide relevant and impartial evidence in his or her area of expertise. An expert should never mislead the Court or become an advocate for the cause of the party that has retained the expert. Expert evidence can be overwritten even if it is relevant to the case if the evidence is being unfairly prejudicial, misleading or result in an unnecessary waste of time. It is not a requirement in each case for expert evidence to be obtained, however it is uncommon for there to be no expert evidence during a case. In property proceedings if all parties can agree on the value of assets then there may not be a need for the appointment of an expert.
How is it used in family law proceedings?
Expert evidence is commonly seen in family law in the following circumstances:
- For a valuer to give the value of a house or asset in property proceedings
- For a child psychologist to give their opinion on the most appropriate care arrangements for a child in parenting proceedings
- For a psychiatrist to conduct an assessment and offer an opinion including a diagnosis as to the mental health and recommended treatment of one or more parties involved in parenting proceedings.
Other specialists that can give expert evidence include social workers and medical specialists
These types of experts may prepare a report pursuant to an order of the Court, usually because of the expert having been nominated by one or both parties (or their legal representatives). In some matters, the parties agree to engage an expert to prepare a report without an order of the Court. Reports prepared by these types of experts are generally funded by one or both of the parties. The Court is not bound by the opinion or recommendations given by an Expert in Court proceedings. The Court can use its discretion in order to determine whether to rely on the opinion of an Expert, either in whole or in part.
Types of experts?
A Single Expert, being an expert in the Court proceedings, can be appointed either by the Court or by parties to proceedings. One of the purposes of the Federal Circuit and Family Court of Australia Rules is to encourage parties to only obtain expert evidence in relation to a relevant and significant issue in dispute, to limit the costs of parties, and also to limit the risk to parties regularly obtaining expert evidence, or to “expert shop” if they do not accept the expert evidence they have obtained.
Adversarial experts are appointed by individual parties to support their case. They are hired to provide their expert evidence that helps the appointing parties position and may give information that challenges or helps the evidence that the joint expert has given. However, they are still bound by the Expert Witness Code of Conduct which means that they can’t make their evidence too biased. The court can allow the use of adversarial experts if the situation is extremely difficult to understand or if the evidence given from the single expert was not enough.
Shadow experts are engaged by a party to look over the joint expert’s opinion and to help prepare the party for their case. They only advise and do not provide evidence unless the court says to. They are often hired to help the legal team understand technical issues, prepare cross-examination questions and evaluate the points of single or adversarial experts. Shadow experts do not need court permissions to be used, and their work remains confidential and is not treated as evidence unless specifically authorized.
The main differences between these types of experts are their purpose, method of appointment, duties and role in proceedings.