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Assessing the Evidence of an Expert Witness in Parenting Proceedings: The Full Court Decision of Reeves & Grinter [2017] FamCAFC 19

What Is the Role of an Expert Witness in Parenting Proceedings?

Reeves & Grinter [2017] FamCAFC 19 is a recent decision of the Full Court involving an appeal that was fundamentally based upon the trial judge’s rejection of the recommendations of an expert witness. The matter related to a ten year child with significant developmental impediments. In order to fully ascertain the nature of these impediments for the purpose of the proceedings, the trial judge ordered the preparation of an expert report.

The expert report was prepared by Ms BB, an educational and developmental psychologist. Ms BB concluded that the child had met the diagnostic criteria for a Specific Learning Disorder. The extent to which the child suffered from this disorder was characterised as “moderate to severe.” In this regard, the child had sub-standard competencies in relation to literacy, comprehension, spelling and mathematics as evaluated against his peers. Ms BB also determined that the child had satisfied the criteria for Attention Deficit Hyperactive Disorder (ADHD). This particular condition affected the child’s emotional regulation and gave rise to the child’s hyperactivity, impulsivity and aggression.

In addition to Ms BB’s expert evidence, the court appointed an expert witness, Dr E. Dr E was a child and family psychiatrist. In accordance with the trial judge’s directions, Dr E prepared a report setting out his recommendations concerning the parenting arrangements that were most likely to achieve the child’s best interests. The recommendations were based on interviews with the relevant parties and all other relevant material provided to him. Dr E’s recommendations concerning living arrangements for the child ultimately provided the evidentiary foundation for the father’s appeal.

Dr E diagnosed the child with child with ADHD, noting that it was probably a congenital condition. He took account of the child’s learning disorder identified by Ms BB. In this regard, he determined that the learning disorder usually co-exists with ADHD, and it probably also a congenital condition. One particular form of developmental pathology that the child acutely displayed whilst in the mother’s care was Oppositional Defiant Disorder (ODD). The severity of the symptoms for this particular condition may be causally determined by a parent’s inability to effectively manage a child’s ADHD. In this particular case, Dr E concluded that the mother’s lack of parental ability may have worsened the child’s condition. This observation supported Dr E’s recommendation that the child undergo a change in residence whereby the child would live with the father and spend time with the mother.

The issue for the trial judge to determine was which of the parties to the proceedings – i.e., the child’s mother and father – could best care for the child, given his developmental difficulties. In determining this issue, the trial judge did not implement Dr E’s recommendation concerning the child’s living arrangements. Instead, he concluded that the child should remain with the mother and continue spending time with the father.

Is It Reasonable for a Trial Judge to Depart From the Recommendations of an Expert Witness?

The father’s appeal was advanced under the following heads of argument, with each head relating to the trial judge’s consideration of Dr E’s recommendations:

    The trial judge did not articulate sufficient reasons in “rejecting” Dr E’s recommendations;
    The trial judge did not give adequate weight to Dr E’s recommendations;
    The trial judge erred in concluding that Dr E was “ambivalent” with respect to his recommendations;and
    The trial judge erred in drawing inferences from the expert’s evidence.

The father’s submissions were also supported by similar submissions the Independent Children’s Lawyer.

The evidence of the expert witness indicated that the child’s ODD was intensified by the “disorganised” approach to managing the child’s behaviour, leading to a “cycle” of difficult behaviours. In particular, the expert witness found that the child’s ODD related behaviours largely arose in connection with his relationship with the mother. This finding was compounded by the expert witnesses’ conclusion that the mother could not adjust her approach to parenting in a manner that would accommodate the child’s developmental disorder.

In assessing the trial judge’s consideration of the expert witnesses’ evidence, the full court noted the following. Namely, that parenting disputes are ultimately determined by the trial judge in light of the available evidence by exercising the discretion conferred upon them under the Family Law Act. The court is not bound to exercise that discretion in accordance with the evidence of an expert witness. The tribunal of fact is the arbiter of whether the evidence supports a particular factual finding, not the expert witness.

During the course of considering the expert’s evidence, trial judge identified a number of unsupported assertions of the expert. Some of these assertions were eventually clarified. Some were not. For instance, the expert witness did not identify any specific instances of the mother’s “disorganised” approach to parenting. Nor did the expert witness attempt to reconcile his view with the evidence that contradicted his position. Moreover, the expert did not specify the process of reasoning whereby he arrived at the conclusion that the mother lacked adequate parental capacities resulting in child neglect. For these reasons the Full Court held that the trial judge had not erred with respect to his treatment of the expert witness’s findings.

Additionally, the trial judge could not be said to have “rejected” the expert witness’ evidence in the sense of failing to consider that evidence. The evidence was clearly considered. This is supported by the fact that the trial judge had identified its deficiencies in outlining his reasons for his decisions.

Even if the expert witness had supported his findings more cogently, it may not have secured the result that the father had desired. Making orders that reflect the child’s best interests require consideration of the totality of evidence – not merely the findings of the expert witness. In this regard, the trial judge noted that

    The mother had been the child’s primary carer since his birth;
    The mother had taken a proactive role with respect to ensuring that the child would receive adequate treatment;
    The father did not actively participate in child’s medical treatment for most of the child’s life;
    The child has made significant progress as a result of interventions implemented by the mother and his school;
    The child is settled and happy at school;
    The father’s proposals for the child’s care were uncertain and unpredictable, especially with respect to the support any school that the father may enrol the child might provide;
    The father did not have sufficient time to tend to the child;
    The father’s comprehension of the child’s development pathogens is naïve and superficial; and
    The expert ultimately conceded that to remove the child from his mother’s household would cause a disruption to his relationship with the mother and would adversely affect the child.

For these reasons, the Full court concluded that the father’s appeal should be dismissed.

The Role of the Expert Witness in Parenting Proceedings

Reeves & Grinter clearly illustrates the proposition that the trial judge is not bound by the recommendations of an expert witness. All parenting orders must be made with the child’s best interests as the paramount consideration. And ascertaining the child’s best interests requires the trial judge to consider the totality of evidence. Reeves & Grinter shows that totality of evidence may attract more weight than the opinions of the expert witness when:

    the opinions do not contain the reasoning by which the expert arrived at their conclusions; and
    the expert witness has failed to reconcile their views with contradictory evidence led during the trial.
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