Hertz & Hertz [2025] FedCFamC1F 926 (16 December 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The current controversy before the court involves the admission of parts of a report prepared by a single expert. The single expert was retained in order to give opinions in respect of the various issues confronting the parties, including the nature of risks that may be posed by the parents to the children. What gives such evidence its value in parenting proceedings is that it draws upon expertise gained by a single expert, whether by virtue of their experience or tertiary qualifications, and typically both. That is, it is the person's training, study or experience that gives particular value to a single expert's opinions on matters such as those arising in this case.
2. The admissibility of the risk assessments, or in particular the risk assessment in respect of the father, and in particular whether or not he poses a sexual risk to the children is subject to objection. A part of that objection is a challenge to the qualifications of the single expert to advance a view about such risks, and further as to the manner in which the single expert purported to do so.
3. Preliminary to determining that objection is a question as to whether in these proceedings, which arise under Part VII of the Family Law Act 1975 (Cth) ("the Family Law Act"), any alteration should be made to the usual position that certain of the provisions of the Evidence Act 1995 (Cth) ("the Evidence Act") should not apply to the proceedings as stipulated by s 102NL of the Family Law Act. One of the provisions that is suspended by operation of s 102NL is the operation of the opinion rule. Subsection 102NL(3) provides that despite the starting point that certain provisions are suspended, the court may decide to apply one or more of the provisions of a division or part of the Evidence Act to an issue in the proceedings. In order to do so the court must be satisfied that the circumstances are exceptional, and the court must take into account, in addition to any other matter the court thinks relevant:

(i) the importance of the evidence in the proceedings; and

(ii) the nature of the subject matter of the proceedings; and

(iii) the probative value of the evidence; and

(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

1. Here it is controversial as to whether or not the circumstances of this case are exceptional.
2. While a cogent argument could perhaps be raised that many of the parenting cases before Division 1 of the Federal Circuit and Family Court of Australia are exceptional due to the nature of the risk issues that are typically raised in those proceedings, there is a particular factor in this case which sets it even further apart from the usual run of cases in this court. That factor is the proposition advanced in the material that each of the parents poses a significant risk to the children, whether by virtue of a sexual risk alleged to be posed under the care of either the father or the mother, or various developmental risks in particular levelled against the mother. Those potential risks were identified by the single expert to be sufficient to suggest the involvement of the welfare agencies in order to ameliorate the potential risks arising from each of the parents. That particular factor is sufficient to render the circumstances here as exceptional within what may generally be regarded as an exceptional cohort of cases.
3. In this case the issue of the risks to the safety of the children, whether posed by reason of a sexual risk or a developmental risk, are of critical importance in the proceedings. They are the central matters that have been identified by each of the parties.
4. The subject matter of the proceedings relates to parenting arrangements for the parties' two children and in particular as to questions as to how risk of harm may be ameliorated in respect of the children.
5. On the mother's case that involves no contact taking place with the father in the long-term.
6. The probative value of the evidence may be understood in this manner: issues of sexual risk and developmental risk are matters that the assessment of is greatly assisted by appropriate expert evidence. The probative value of the expert evidence can be assessed on the basis that if accepted it may in this instance have a significant impact on the case posed by each of the parties. That is, if its probative value is assessed on the basis that it is accepted in the proceedings it indicates significant risks to the children in the mother's care. The issue of probative value may also be assessed in another way which is that the nature of the subject matter is such that it calls for expert evidence in order to properly resolve it. That is the nature of the risks posed by either of the parties require for resolution expert evidence. As a category, it may be expected that expert evidence is probative to answer those issues. What will give it weight in the proceedings, or admission, is its capacity to do so.
7. As to the question of the power to adjourn the proceedings, the proceedings are at this stage at an interlocutory phase and so any arrangements made at this point can be accommodated in the final disposition of the case.
8. Given that what will give expert evidence its cogency in this case is the fact that the specialised knowledge of the single expert, or another appointed expert, based on a person's training, study or experience and its application to the facts of this particular case, or as to the facts posed by either of the parties as applicable to this particular case, and that absent an application of that training, study or experience to those matters the evidence is unlikely to have cogency, it is appropriate to apply the opinion rule in this case to determining what arrangements would promote the safety, including safety from being subjected to or exposed to family violence, abuse, neglect or other harm, of the child and each person who has the care of the child, whether or not a person has parental responsibility for the child.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.