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Children – single expert witness’s professional obligations to the court do not constrain that expert from giving evidence under subpoena in criminal proceedings

In Joplin & Parkins[2020] FamCA 403 (26 June 2020) Cleary J dismissed a father’s application to have a single expert (Dr Z) released from his obligation to the court to not use or disclose the contents of his report, the factual underpinnings of his report, and any information obtained in preparing the report.

The release was to aid Dr Z’s compliance with a District Court subpoena to give evidence, where the father had been charged with sexual assault of a 15 year old.

The court said (from [35]):

“Dr Z apparently expressed his concern about compromising his ability to perform as a single expert if he gave evidence in the criminal trial. (…)

[37] (…) His concern was that he may be in breach of the law. (…)

[46] (…) This Court cannot dictate matters of practice and procedure in another Court. (…)

[56] A single expert has obligations to the Court which appoints him/her.

[57] By accepting the appointment of the FCC Dr Z accepted that his duty to the Court was guided by the Federal Court Practice Direction Guidelines including that he be an impartial witness.

[58] Within the context of the parenting proceedings…an expert witness is not and cannot be an advocate for a party. (…)

[61] …[I]n a criminal trial, the role of Dr Z…, would not be that of a single expert…but as a witness called to give evidence on matters considered relevant by the party calling such evidence. (…)

[65] Dr Z has remained an impartial witness by requiring his service with a subpoena to compel his evidence.

[66] He is not constrained by his professional obligations arising from his work in the FCC and this Court from answering questions put to him as a witness in the criminal trial.”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

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