Australia: Are the "Recommendations" of Family Report Writers Admissible Evidence?

Last Updated: 17 December 2009

The fundamental rule of evidence is that it must be relevant. It is said that all other rules of evidence flow from this fundamental rule.[1] The purpose of the fundamental rule is to only allow "evidence" which tends to prove or disprove a fact in issue.[2] Anything else is a hindrance, or even detrimental, to the deliberation process the Court is required to undertake.

One principal which flows from the fundamental rule is that "evidence" cannot be received which "swears to the ultimate issue." There is some doubt about the certainty of this principal as a rule of evidence,[3] however most recently Callinan J held in Naxakis v. Western General Hospital:[4]

"At this point I would observe that there is an increasing tendency for counsel to seek to elicit (and their opponents to acquiesce in this endeavour) evidence on the ultimate legal issue. In the absence of a statutory basis for the reception of such evidence, the better view I think is that a court should generally uphold an objection to it."

Section 69ZT of the Family Law Act 1975 states, relevantly, that the rules of evidence do not apply to "child-related proceedings." The section flows from principles for conducting child-related proceedings listed at section 69ZN of the Act. One of those principles is to ensure proceedings are conducted without undue delay and with as little formality and legal technicality and form as possible. The correlation is that prima facie the rules of evidence produce formality and legal technicality not conducive to these proceedings. Nevertheless, within section 69ZT, the Court is still empowered to apply the rules of evidence should the circumstances of the case require it sub-section 69ZT(3) refers. Whilst that sub-section lists matters the Court should consider in the application of the rules of evidence, it is clear that should a rule of evidence enhance the likelihood of an expeditious resolution, or remove technicality, then such a rule would, in my opinion, satisfy subsection 69ZT(3) and be likely to be applied. Couple that with a judge's inherent unwillingness to abandon all the rules learnt and applied with alacrity over several years, and it is not unreasonable to argue that the rules of evidence still play a part in child-related proceedings.

It is certainly not helpful to expeditious resolution, informality or the reduction of technicality that parties come to the court with voluminous affidavits replete with irrelevant material. Nor is there any room for what is irrelevant to the expeditious resolution of a child-related proceeding.

In Kernot v. Matson, Watt J considered the admissibility of a family report writer's recommendations.[5] In that case, the recommendations (amongst other parts of the report) where challenged because, as senior counsel submitted, the recommendations pre-determined an issue for the Court.[6] Watt J rejected this submission and held:[7]

"Even if Part 3 of the Evidence Act 1995 were to apply in this case, which at the moment it does not, it would be permissible for a report writer to express an opinion in respect of an ultimate issue (see section 80 of the Evidence Act). As I commented during submissions, recommendations are one piece of opinion evidence that is weighed with all the other evidence that the court takes into account. It will be for the court to judge the reliability of the evidence, including whether or not statements made by the children are true. It will be for the court to judge what arrangements are in the children's best interests."

What his Honour seems to be saying is that even if the Court applies the rules of evidence, ie the Evidence Act 1995, then section 80 renders the evidence admissible. Then, in any event, the recommendations are but one piece of evidence to be considered and it is the function of the Court to determine the ultimate issue.

In the Federal Court, Lindgren J in Allstate Life Insurance Co. and Ors v. ANZ Banking Group Ltd and Ors (No 33 ) had to decide the admissibility of evidence given by an American securities law expert as to the applicability of certain assumed facts to that law.[8] No challenge was given as to the admissibility of the expert to state what the applicable law was. The challenge was that the expert could not then give evidence as to how the Court might ultimately determine the matter. His Honour considered section 80 and still found the evidence was inadmissible. His Honour held:[9]

"The rationale underlying this 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...Accordingly, evidence of opinion as to the proper application of foreign law to fact is not admissible. It would take clearer language than that of para 80(a) to displace the fundamental principle to which I have referred."

If that is the proper application of section 80 of the Evidence Act 1995, why do family report writer's recommendations amount to the same abdication?

Recently, the Full Court revisited the issue. In Andrew & Delaine,[10] the trial judge, Dawe J, largely rejected the quite specific recommendations of a family report writer. Consequently, one of the grounds of appeal was whether such rejection constituted appealable error. In dismissing the appeal, the Full Court set out observations of family reports, which their Honours (May, Boland and Strickland JJ) stressed were of a "general nature."

  • There is no magic in a family report.. The court is not bound to accept recommendations and those recommendations can never usurp the role of the court.
  • Family reports can be valuable and when the ultimate decision reflects the recommendations, it is because the court has found the recommendations are in line with the court's findings.
  • A family report writer does not have the opportunity to weigh and test the evidence as a trial judge can.
  • The facts giving rise to the family report writer's recommendations may turn out to be rejected by a trial judge.
  • Sometime, necessarily, a family report may be neutral.
  • A family report writer need not be disturbed if a court rejects the recommendations.
  • The court has the advantage of a complete forensic process whereas the report writer does not.

Another issue is that family report writers are not bound to follow the reasoning process set out by the Family Law Act 1975 and explained by the Full Court in Goode & Goode.[11] To that end, some family report writers might bring to the exercise an inherent dislike of "equal time" orders, or inherent support for them. Further, family report writers do not feel themselves bound to make findings pursuant to section 60CC of the Family Law Act 1975 and prefer, as their profession dictates, to approach an analysis of personal or family dynamics without stricture.

If the Full Court is correct, and undoubtedly they are, to what end are recommendations to a court which set out the orders the family report writer thinks the court should make? Such recommendations can be rejected and, in fact, only applied if the findings made by the court lead the court to the same conclusion. If the court comes to that conclusion independently, then the recommendations were of no assistance anyway.

It follows that in my opinion a family report writer's recommendation which sets out the orders the court might make is both unhelpful and inadmissible.

What then should a family report writer recommend? Ultimately, that should be a discourse amongst those in that profession. However, in my opinion, a family report writer's recommendation which sets out the psycho-social consequences of the parties' respective positions, analyses the interpersonal dynamics within the family group and provides insight into the parties' (and the child's) emotions and cognition will be enormously helpful and admissible.

[1] see eg. Hollington v. F Hewthorn & Co [1943] KB 587

[2] see eg. Evidence Act 1995; section 55

[3] Murphy v. R (1989) 167 CLR 94

[4] (1999) 197 CLR 269 at [110]

[5] [2008] FamCA 756

[6] ibid at [20]

[7] ibid at [54] to [55]

[8] (1996) 64 FCR 79

[9] ibid at [18] to [28]

[10] [2009] FamCAFC 182

[11] [2006] Fam CA 1376

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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