Guidelines for expert witnesses and those instructing them in cases in the Federal Circuit and Family Court of Australia
This brochure sets out guidelines to assist people to comply with Part 7.1 of the Family Law Rules (expert evidence). It should be read in conjunction with those Rules.
Division 7.1.7 provides that if two or more parties to a case in the Federal Circuit and Family Court of Australia (the Court) intend to tender an expert report or produce evidence from an expert witness about the same question, or a similar one, then the parties must:
- arrange for the expert witnesses to confer at least 28 days before the first hearing before the judge or senior judicial registrar where their expert reports will be relied on in evidence, and
- give a copy of this brochure to the expert witness instructed by them.
The objectives of an experts’ conference
An experts’ conference is held to assist the parties and the Court to achieve a just, quick and cost effective disposal of the case. Even if agreement cannot be reached, by identifying and narrowing the issues to those that will require judicial determination, a conference will help shorten the subsequent trial and enhance the prospects of settlement. It will help avoid or reduce the need for experts to attend court to give evidence.
At the conference the experts must reach a conclusion on the evidence and produce a joint statement (the joint statement may be used in cross-examination of an expert at the trial). (See page 3 of this brochure for more details.)
Preparing for a conference
Separate conferences may be required between experts in different specialities about different issues in a case. Rule 7.31(2) provides that the Court may order:
- which experts are to attend the conference
- where and when the conference is to occur
- which issues the experts must discuss
- the questions to be answered by the experts
- the documents to be given to the experts, including:
- Divisions 7.1.4, 7.1.5 and 7.1.6 of the Rules
- relevant affidavits
- a joint statement of the assumptions to be relied on by the experts during the conference, including any competing assumptions
- all expert reports already disclosed by the parties.
The documents above and any others agreed to by the parties should be provided to the experts at least seven days before the conference, or as otherwise ordered by the Court.
Questions for the experts
Any questions to be answered by the experts at a conference should be:
- those specified by the Court or agreed by the parties; and
- any other question which any party wishes to submit for consideration.
The questions should be framed to resolve an issue or issues in the case. If possible, questions should be capable of being answered Yes or No, or (if not) by a very brief response.
What a conference must do
Rule 7.31(3) provides that at the conference the experts must:
- identify the issues that are agreed and not agreed
- if practicable, reach agreement on any outstanding issue
- identify the reason for disagreement on any issue
- identify what action (if any) may be taken to resolve any outstanding issues.
Conduct of the conference
The conference should be conducted in a manner that is flexible, free from undue complexity and fair to all parties.
The experts may appoint one of their number as a chairperson. However, if one of them requests and the parties agree or the Court orders, another person may chair the conference. Secretarial or administrative assistance should be provided by the parties if requested by the experts. If the experts agree, one of them or a secretarial assistant may be appointed to make a note at the conference of:
- matters agreed, and
- matters not agreed and reasons for disagreement.
The conference may be adjourned and reconvened as necessary.
At the end of the conference, the experts must write a joint statement setting out the result of the conference, specifically addressing the items listed under ‘What a conference must do’ – Rule 7.31(3)(e). The statement must signed by all participating experts immediately at the conclusion of the conference otherwise, as soon as practicable thereafter.
The experts may specify in the joint statement other questions that they believe would be useful for them to consider. If an expert has a contrary view the expert should express it.
The participating experts should not seek advice or guidance from the parties or their lawyers prior to signing the joint statement.
Rule 7.31(4) provides that where experts reach agreement on an issue, the agreement does not bind the parties unless the parties expressly agree to be bound by it.
Rule 7.31(5) provides that the joint statement may be tendered by consent as evidence of matters agreed and to identify the issues on which evidence will be called.
Setting the place, date and time for a conference
If the Court has not fixed a place and date for the conference, the parties should fix a mutually convenient date, time and place. The experts should be given a reasonable opportunity to prepare for the conference (i.e. it should not normally take place until at least seven days after the experts have received the pre-reading material but at least 28 days before the first hearing before the judge where their expert reports will be relied on in evidence). This ensures the experts have time, if necessary, to:
- seek clarification from the instructing lawyers or the Court concerning any question put to them, and
- access any additional materials which the parties are able to provide and which the experts consider to be relevant.
Experts at the conference
The experts should:
- Respond individually to the questions asked based on the witness statements. Their responses need to state the assumptions made, including the opinions based on any alternative assumptions.
- State any contrary view.
- Accept as fact the matters stated in witness statements or assumptions submitted to them. It is not their role to decide any disputed question of fact or the credibility of any witness. Where there are competing assumptions, alternative answers may have to be provided to a question or questions, specifying which of the assumptions are adopted for each answer.
Lawyers at a conference
Lawyers attending a conference by order of the Court or who are approached for advice by a participating expert should respond jointly and not individually. The only exception to this is if they have been authorised to respond individually by the lawyers for all other parties with an interest in the conference.
Advice may be provided by:
- responding to any questions in relation to the legal process applicable to the case
- identifying relevant documents
- providing further materials on request, and or
- correcting any misapprehension of fact or any misunderstanding concerning the conference process.
This brochure provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to the Court. The Federal Circuit and Family Court of Australia cannot provide legal advice.
Federal Circuit and Family Court of Australia - Distributed in accordance with Rule 7.31(1)(b) of the Family Law Rules 2021. Approved by the Chief Justice/Chief Judge in accordance with the Family Law Rules 2021