Family Court case: when the expert gets it wrong; commentary on “spends time with”

In children’s matters, it seems that the two most powerful people in any case are the judge, and after the judge any family report writer- the person who often makes powerful recommendations about where a child should live or how often a child should spend time with one or both parents.

But what happens when a court expert gets it wrong? Not just in terms of their opinion, but that their analysis is completely wrong? This was the scenario in the recent Full Court of the Family Court case of Carpenter and Lunn, in which the court expert took a strong disliking to the mother and the maternal grandmother, which in turn impacted on the very recommendations that the court expert made.

It turns out that there were some fundamental errors:

• the court expert got her timeline wrong- or as the Full Court held it: “a fundamental misapprehension of the chronology” which in this case caused her to take a look at the mother with baleful eyes- which if she had got her timeline right, the court expert might not have done;
• the court expert was not told about some other evidence, which meant that her views of the matter were incorrect.

In turn the father and the independent children’s lawyer, and the judge, based their views primarily on the position of the court expert.

“Spends time with” v “contact”

The trial was held before the 2006 amendments came into force, but the judgment was delivered after that date, so the trial judge used the new jargon of “spends time with” instead of the old jargon of “contact”.

The Full Court held:

The new legislation replaced the legal concept previously known as “contact”
with the concept of a child “spending time” with someone. The legislation,
however, does not prohibit the use of the noun “contact” in its everyday
sense.
In these reasons, we propose to use “contact” interchangeably with
expressions such as “spend time with”. In doing so, we have not ignored the
legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary. (emphasis added)

Comment: The good news is that self-represented litigants, family lawyers and judges can still use the old term of contact without having to engage in “linguistic gymnastics”.

Role of experts

The Full Court held:

(T)he Court Expert’s views here were expressed with a forcefulness of
language that we found surprising and in a way which invited suggestion she had
not provided her opinion in the objective and impartial manner mandated
…Furthermore, we are not persuaded that the Court Expert’s strongly expressed
opinions were based on her “specialised knowledge” gained from “training, study
or experience” as a psychologist, but rather were based on her assessment of the
veracity of the parties and [the maternal grandmother].

Whilst it is inevitable that a Court Expert will form views concerning the
veracity of those they interview, it is nevertheless important for experts to
appreciate it is unlikely they will have all of the relevant information and
that they do not have the opportunity of observing the parties and witnesses
under cross-examination. The following observation made by the Full Court in
Hall and Hall (1979)…concerning reports prepared by court counsellors has
equal application to Court Experts:

[T]he counsellor’s assessment of the parties may often be based upon facts
which the counsellor has accepted but which turn out to be wrong; or favourable
or unfavourable views formed by the counsellor from interviewing the parties
without the opportunity to test in depth the credit of persons who may in court,
and under cross-examination, or in the face of evidence of other witnesses,
prove to be of a different character from that which the counsellor has
accepted.

These remarks highlight the fact that it is the task of the trial judge and
not the Court Expert to make findings concerning the credibility of the parties
and their witnesses. As a minimum, the observations in Hall and Hall demonstrate
why it would be desirable for an expert, pending determination of the facts by
the trial judge, to consider the possibility that any view they may have on
credibility could be mistaken. Eileen Munro in her work on child protection has
observed that “[t]he single most important factor in minimising errors is to
admit that you may be wrong”: Munro, E, Effective child protection, SAGE
Publications, London, 2002, at p 141.
The assessment of credibility of
witnesses, at least in our experience, requires a thorough appreciation of the
relevant chronology of events….

If an expert proposes to draw a serious adverse inference based on a
discrepancy between information provided at interview and information contained
in another document, it would be desirable for them to draw that inconsistency
to the attention of the party being interviewed. It is then a matter ultimately
for the trial judge to determine whether any apparent inconsistency has been
adequately explained. …

We are also concerned about the extent to which [the maternal grandmother’s]
poor command of the English language may have contributed to the Court Expert’s
conclusion that the allegations were “riddled with major inconsistencies, absurd
claims and illogical reasoning”.

And finally, it appears that the Court Expert restated, incorrectly and significantly, some matters arising from the psychiatric assessment of the mother and maternal grandmother.

Ultimately, and not surprisingly in the circimstances, the Full Court remitted the matter back to another judge so that the matter could be reheard.