Division 7.1.5Expert witness’s duties and rights

## Part 7.1—Experts ### Division 7.1.1—Introduction #### 7.01 Application of Part 7.1 (1) This Part (other than rule 7.14) does not apply to any of the following: (a) evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following: (i) the results of an examination, investigation or observation made; (ii) a description of any treatment carried out or recommended; (iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis; (b) evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a proceeding or anticipated proceeding, being evidence: (i) about that expert’s involvement with a party, child or subject matter of a proceeding; and (ii) describing the reasons for the expert’s involvement and the results of that involvement; (c) evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a proceeding for a purpose other than the giving of advice or evidence, or the preparation of a report for a proceeding or anticipated proceeding, being evidence about that expert’s association, involvement or contact with that party, child or subject matter; (d) evidence from a family consultant employed or engaged by the Federal Circuit and Family Court or the Family Court of a State. > Note: Example: An example of evidence excluded from the requirements of this Part (other than rule 7.14) is evidence from a treating doctor or a teacher in relation to the doctor’s or teacher’s involvement with a party or child. (2) Nothing in this Part prevents an independent children’s lawyer communicating with a single expert witness. #### 7.02 Purpose of Part 7.1 The purpose of this Part is as follows: (a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute; (b) to restrict expert evidence to that which is necessary to resolve or determine a proceeding; (c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness; (d) to avoid unnecessary costs arising from the appointment of more than one expert witness; (e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if that is necessary in the interests of justice. ### Division 7.1.2—Single expert witness #### 7.03 Appointment of single expert witness by parties jointly (1) If the parties agree that expert evidence may help to resolve a substantial issue in a proceeding, they may agree to jointly appoint a single expert witness to prepare a report in relation to the issue. > Note: Subrules 7.13(3) to (5) set out the requirements that apply to instructions to a single expert witness appointed by agreement between the parties. (2) A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1). (3) A party must not communicate unilaterally with a single expert witness, except as permitted by these Rules. (4) Any communication between a party and a single expert witness must, at the same time, also be provided to all other parties engaging that single expert witness, except as permitted by these Rules. #### 7.04 Order for single expert witness (1) The court may, on application or on its own initiative, order that expert evidence be given by a single expert witness. (2) When considering whether to make an order under subrule (1), the court may take into account any matters relevant to making the order, which may include the following (without limiting the matters which may be relevant): (a) the overarching purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 7.02); (b) whether expert evidence on a particular issue is necessary; (c) the nature of the issue in dispute; (d) whether the issue falls within a substantially established area of knowledge; (e) whether it is necessary for the court to have a range of opinion. (3) The court may appoint a person as a single expert witness only if the person consents to the appointment. (4) A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1). #### 7.05 Orders the court may make The court may, in relation to the appointment of, instruction of, or conduct of a proceeding involving, a single expert witness make an order, including an order: (a) requiring the parties to confer for the purpose of agreeing on the person to be appointed as a single expert witness; or (b) that, if the parties cannot agree on who should be the single expert witness, the parties give the court a list stating: (i) the names of people who are experts on the relevant issue and have consented to being appointed as an expert witness; and (ii) the fee each expert will accept for preparing a report and attending court to give evidence; or (c) appointing a single expert witness from the list prepared by the parties or in some other way; or (d) determining any issue in dispute between the parties to ensure that clear instructions are given to the expert; or (e) that the parties: (i) confer for the purpose of preparing an agreed letter of instructions to the expert; and (ii) submit a draft letter of instructions for settling by the court; or (f) settling the instructions to be given to the expert; or (g) authorising and giving instructions about any inspection, test or experiment to be carried out for the purposes of the report; or (h) that a report not be released to a person or that access to the report be restricted. #### 7.06 Single expert witness’s fees and expenses (1) Unless the parties agree otherwise or the court otherwise orders, the parties (but not an independent children’s lawyer) are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report. > Note: Rule 12.32 sets out the circumstances in which an amount paid to an expert for preparation of a report is a disbursement properly incurred in a proceeding. (2) A single expert witness is not required to undertake any work in relation to the expert witness’s appointment until the fees and expenses are paid or secured. #### 7.07 Single expert witness’s report (1) A single expert witness must prepare a written report. (2) If the single expert witness was appointed by the parties, the expert witness must give each party a copy of the report at the same time. (3) If the single expert witness was appointed by the court, unless otherwise ordered, the expert witness must give the report to the Registry Manager. > Note 1: An expert witness may seek procedural orders from the court under rule 7.19 if the expert witness considers that it would not be in the best interests of a child or a party to give a copy of a report to each party. > Note 2: The delivery of an expert’s report may occur by electronic means, if appropriate. (4) An applicant who has been given a copy of a report under subrule (2) must file the copy but does not need to serve it. #### 7.08 Appointing another expert witness (1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission. (2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that: (a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and the contrary opinion is or may be necessary for determining the issue; or (b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or (c) there is another special reason for adducing evidence from another expert witness. #### 7.09 Cross‑examination of single expert witness (1) A party wanting to cross‑examine a single expert witness at a hearing or trial must inform the expert witness in writing, at least 14 days before the date fixed for the hearing or trial, that the expert witness is required to attend. (2) The court may limit the nature and length of cross‑examination of a single expert witness. (3) Unless the court otherwise orders, a party who requires a single expert witness to attend court for cross‑examination must pay the reasonable fees and expenses of the single expert witness’s attendance. > Note: Rule 12.31 sets out the circumstances in which an amount paid for attendance by an expert at a hearing is a disbursement properly incurred in a proceeding. ### Division 7.1.3—Permission for expert’s evidence #### 7.10 Permission for expert’s reports and evidence (1) A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, other than a single expert witness. (2) An independent children’s lawyer may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the court’s permission. #### 7.11 Application for permission for expert witness (1) A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Proceeding. (2) The affidavit filed with the application must state the following: (a) whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not; (b) the name of the expert witness; (c) the issue about which the expert witness’s evidence is to be given; (d) the reason the expert evidence is necessary in relation to that issue; (e) the field in which the expert witness is expert; (f) the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; (g) whether there is any previous connection between the expert witness and the party. (3) When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account the following: (a) the purpose of this Part (see rule 7.02); (b) the impact of the appointment of an expert witness on the costs of the proceeding; (c) the likelihood of the appointment expediting or delaying the proceeding; (d) the complexity of the issues in the proceeding; (e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; (f) whether the expert witness has specialised knowledge, based on the person’s training, study or experience: (i) relevant to the issue on which evidence is to be given; and (ii) appropriate to the value, complexity and importance of the proceeding. (4) If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order. > Note: Despite an order under this rule, a party is not entitled to adduce evidence from an expert witness if the expert’s report has not been disclosed or a copy has not been given to the other party (see rule 7.17). ### Division 7.1.4—Instructions and disclosure of expert’s report #### 7.12 Application of Division 7.1.4 This Division does not apply to a market appraisal or an opinion as to value in relation to property obtained by a party for the purposes of a procedural hearing or conference. #### 7.13 Instructions to expert witness (1) This rule applies to any expert witness, whether a single expert witness or an expert witness engaged by only one party or some parties. (2) A party who instructs an expert witness to give an opinion for a proceeding or an anticipated proceeding must: (a) ensure the expert witness has a copy of the most recent version of, and has read, Divisions 7.1.4, 7.1.5 and 7.1.6 of these Rules; and (b) obtain a written report from the expert witness. (3) All instructions to an expert witness must be in writing and must include: (a) a request for a written report; and (b) advice that the report may be used in an anticipated or actual proceeding; and (c) the issues about which the opinion is sought; and (d) a description of any matter to be investigated, or any experiment to be undertaken or issue to be reported on; and (e) full and frank disclosure of information and documents that will help the expert witness to perform the expert witness’s function. (4) If a single expert witness is appointed, the parties must give the expert an agreed statement of facts on which to base the report. (5) However, if a single expert witness is appointed and the parties do not agree on a statement of facts: (a) unless the court directs otherwise, each of the parties must give to the expert a statement of facts on which to base the report; and (b) the court may give directions about the form and content of the statement of facts to be given to the expert. #### 7.14 Mandatory disclosure of expert’s report (1) A party who has obtained an expert’s report for a parenting proceeding, whether before or after the start of the proceeding, must give each other party a copy of the report: (a) if the report is obtained before the proceeding starts—at least 2 days before the first court date; or (b) if the report is obtained after the proceeding starts—within 7 days after the party obtains the report. (2) The party who discloses an expert’s report must disclose any supplementary report and any notice amending the report under subrule 7.18(5). (3) If an expert’s report has been disclosed under this rule, any party may seek to tender the report as evidence. (4) Legal professional privilege does not apply in relation to an expert’s report that must be disclosed under this rule. #### 7.15 Provision of information about fees A party who has instructed an expert witness must, if requested by another party, give each other party details of any fee or benefit received, or receivable, by or for the expert witness, for the preparation of the report and for services provided, or to be provided, by or for the expert witness in connection with the expert witness giving evidence for the party to the proceeding. #### 7.16 Application for provision of information (1) This rule applies if the court is satisfied that: (a) a party (the disclosing party) has access to information or a document that is not reasonably available to the other party (the requesting party); and (b) the provision of the information or a copy of the document is necessary to allow an expert witness to carry out the expert witness’s function properly. (2) The requesting party may apply for an order that the disclosing party: (a) file and serve a document specifying the information in enough detail to allow the expert witness to properly assess its value and significance; and (b) give a copy of the document to the expert witness. > Note: An expert witness may request that the court make an order under this rule (see rule 7.19). #### 7.17 Failure to disclose report A party who fails to give a copy of an expert’s report to another party or the independent children’s lawyer (if any) must not use the report or call the expert witness to give evidence at a hearing or trial, unless the other party and the independent children’s lawyer (if any) consent to the report being used or the expert witness being called, or the court orders otherwise. ### Division 7.1.5—Expert witness’s duties and rights #### 7.18 Expert witness’s duty to the court (1) An expert witness has a duty to assist the court with matters that are within the expert witness’s knowledge and capability. (2) The expert witness’s duty to the court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness. (3) The expert witness has the following duties: (a) to give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability; (b) to conduct the expert witness’s functions in a timely way; (c) to avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts; (d) to consider all material facts, including those that may detract from the expert witness’s opinion; (e) to tell the court: (i) if a particular question or issue falls outside the expert witness’s expertise; and (ii) if the expert witness believes that the report prepared by the expert witness is based on incomplete research or inaccurate or incomplete information, or is incomplete or may be inaccurate, for any reason; (f) to produce a written report that complies with rules 7.21 and 7.22. (4) The expert witness’s duty to the court arises when the expert witness: (a) receives instructions under rule 7.13; or (b) is informed by a party that the expert witness may be called to give evidence in a proceeding. (5) An expert witness who changes an opinion after the preparation of a report must give written notice to that effect: (a) if the expert witness is appointed by a party—to the instructing party; or (b) if the expert witness is appointed by the court—to the Registry Manager and each party. (6) A notice under subrule (5) is taken to be part of the expert’s report. #### 7.19 Expert witness’s right to seek orders (1) Before final orders are made, a single expert witness may, by written request to the court, seek a procedural order to assist in carrying out the expert witness’s function. > Note: The written request may be by letter and may, for example: (a) ask for clarification of instructions; or (b) relate to questions referred to in Division 7.1.6; or (c) relate to a dispute about fees. (2) The request must: (a) comply with rule 2.14; and (b) set out the procedural orders sought and the reason the orders are sought. (3) The expert witness must serve a copy of the request on each party and satisfy the court that the copy has been served. (4) The court may determine the request in chambers unless: (a) within 7 days after being served with the request, a party makes a written objection to the request being determined in chambers; or (b) the court decides that an oral hearing is necessary. #### 7.20 Expert witness’s evidence in chief (1) An expert witness’s evidence in chief comprises: (a) the expert’s report; and (b) any changes to that report in a notice under subrule 7.18(5); and (c) any answers to questions under rule 7.27. (2) An expert witness has the same protection and immunity in relation to the contents of a report disclosed under these Rules or an order as the expert witness could claim if the contents of the report were given by the expert witness orally at a hearing or trial. #### 7.21 Form of expert’s report (1) An expert’s report must: (a) be addressed to the court and the party or parties instructing the expert witness; and (b) have attached to it a summary of the instructions given to the expert witness and a list of any documents relied on in preparing the report; and (c) be verified by an affidavit of the expert witness. (2) The affidavit verifying the expert’s report must state the following: I have made all the inquiries I believe are necessary and appropriate and to my knowledge there have not been any relevant matters omitted from this report, except as otherwise specifically stated in this report. I believe that the facts within my knowledge that have been stated in this report are true. The opinions I have expressed in this report are independent and impartial. I have read and understand Divisions 7.1.4, 7.1.5 and 7.1.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and have used my best endeavours to comply with them. I have complied with the requirements of the following professional codes of conduct or protocol, being \[state the name of the code or protocol\]. I understand my duty to the court and I have complied with it and will continue to do so. #### 7.22 Contents of expert’s report (1) An expert’s report must: (a) state the reasons for the expert witness’s conclusions; and (b) include a statement about the methodology used in the production of the report; and (c) include the material referred to in subrule (2) in support of the expert witness’s conclusions. (2) For the purposes of paragraph (1)(c), an expert’s report must include the following in support of the expert witness’s conclusions: (a) the expert witness’s qualifications; (b) the literature or other material used in making the report; (c) the relevant facts, matters and assumptions on which the opinions in the report are based; (d) a statement about the facts in the report that are within the expert witness’s knowledge; (e) details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person’s qualifications and experience; (f) if there is a range of opinion on the matters dealt with in the report—a summary of the range of opinion and the basis for the expert witness’s opinion; (g) a summary of the conclusions reached; (h) if necessary, a disclosure that: (i) a particular question or issue falls outside the expert witness’s expertise; or (ii) the report may be incomplete or inaccurate without some qualification and the details of any qualification; or (iii) the expert witness’s opinion is not a concluded opinion because further research or data is required or because of any other reason. #### 7.23 Consequences of non‑compliance If an expert witness does not comply with these Rules, the court may do any of the following: (a) order the expert witness to attend court; (b) refuse to allow the expert’s report or any answers to questions to be relied on; (c) allow the report to be relied on but take the non‑compliance into account when considering the weight to be given to the expert witness’s evidence; (d) take the non‑compliance into account when making orders for: (i) an extension or abridgment of a time limit; or (ii) a stay of the proceeding; or (iii) interest payable on a sum ordered to be paid; or (iv) costs. > Note: For the court’s power to order costs, see subsection 114UB(2) of the Family Law Act. ### Division 7.1.6—Clarification of single expert witness reports #### 7.24 Purpose of Division 7.1.6 (1) The purpose of this Division is to provide ways of clarifying a report prepared by a single expert witness. (2) Clarification about a report may be obtained at a conference under rule 7.25 or by means of questions under rule 7.26. #### 7.25 Conference (1) Within 21 days after receiving the report of a single expert witness, the parties may enter into a written agreement about conferring with the expert witness for the purpose of clarifying the report. (2) The agreement may provide for the parties, or for one or more of them, to confer with the expert witness. (3) Without limiting the scope of the conference, the parties must agree on arrangements for the conference. (4) It is intended that the parties should be free to make any arrangements for the conference that are consistent with this Division. > Note: For example, arrangements for a conference might include the attendance of another expert, or the provision of a supplementary report. (5) Before participating in the conference, the expert witness must be informed of arrangements for the conference. (6) In seeking to clarify the report of the expert witness, the parties must not interrogate the expert witness. (7) If the parties do not agree about conferring with a single expert witness, the court, on application by a party, may order that a conference be held in accordance with any conditions the court determines. #### 7.26 Questions to single expert witness (1) A party seeking to clarify the report of a single expert witness may ask questions of the single expert witness under this rule: (a) within 7 days after a conference (if any) is held under rule 7.25; or (b) if no conference is held under that rule—within 21 days after the party received the single expert witness’s report. (2) The questions must: (a) be in writing and be put once only; and (b) be only for the purpose of clarifying the single expert witness’s report; and (c) not be vexatious or oppressive, or require the single expert witness to undertake an unreasonable amount of work to answer. (3) The party must give a copy of any questions to each other party. #### 7.27 Single expert witness’s answers (1) A single expert witness must answer a question received under rule 7.26 within 21 days after the later of the following: (a) the date the expert witness received the question; (b) the date the fees and expenses for answering the question are paid or secured. (2) An answer to a question: (a) must be in writing; and (b) must specifically refer to the question; and (c) must: (i) answer the substance of the question; or (ii) object to answering the question. (3) If the single expert witness objects to answering a question or is unable to answer a question, the single expert witness must state the reason for the objection or inability in the document containing the answers. (4) The single expert witness’s answers: (a) must be: (i) attached to the affidavit under subrule 7.21(2); and (ii) sent by the single expert witness to all parties at the same time; and (iii) filed by the party asking the questions; and (b) are taken to be part of the expert’s report. #### 7.28 Single expert witness’s costs (1) The reasonable fees and expenses of a single expert witness incurred in relation to a conference are to be paid as follows: (a) if only one of the parties attends the conference—by that party; or (b) if more than one of the parties attends the conference—by those parties jointly. (2) If a single expert witness answers questions under rule 7.27, the expert witness’s reasonable fees and expenses incurred in answering any questions are to be paid by the party asking the questions. (3) A single expert witness is not required to undertake any work in relation to a conference, or answer any questions, until the fees and expenses for that work or those answers are paid or secured. (4) In this rule: > attend includes attendance by electronic communication. #### 7.29 Application for directions A party may apply to the court for directions relating to a conference with a single expert witness or the asking or answering of questions under this Division. ### Division 7.1.7—Evidence from 2 or more expert witnesses #### 7.30 Application of Division 7.1.7 This Division applies to a proceeding in which 2 or more parties intend to tender an expert’s report or adduce evidence from different expert witnesses about the same, or a similar, question. #### 7.31 Conference of expert witnesses (1) In a proceeding to which this Division applies: (a) the parties must arrange for the expert witnesses to confer at least 28 days before the earlier of the following: (i) the first day of the trial in which the experts’ reports are to be relied on in evidence; (ii) the first day when the experts’ reports are otherwise to be relied on in evidence; and (b) each party must give to the expert witness the party has instructed a copy of the court approved brochure entitled Experts’ Conferences—Guidelines for expert witnesses and those instructing them in proceedings in the Federal Circuit and Family Court of Australia. > Note: The brochure is available on the court’s website. (2) The court may, in relation to the conference, make an order, including an order about: (a) which expert witnesses are to attend; or (b) where and when the conference is to occur; or (c) which issues the expert witnesses must discuss; or (d) the questions to be answered by the expert witnesses; or (e) the documents to be given to the expert witnesses, including: (i) a copy of Divisions 7.1.4, 7.1.5 and 7.1.6 of these Rules; and (ii) relevant affidavits; and (iii) a joint statement of the assumptions to be relied on by the expert witnesses during the conference, including any competing assumptions; and (iv) all expert’s reports already disclosed by the parties. (3) At the conference, the expert witnesses must: (a) identify the issues that are agreed and not agreed; and (b) if practicable, reach agreement on any outstanding issue; and (c) identify the reason for disagreement on any issue; and (d) identify what action (if any) may be taken to resolve any outstanding issues; and (e) prepare a joint statement specifying the matters referred to in paragraphs (a) to (d) and deliver a copy of the statement to each party. (4) If the expert witnesses reach agreement on an issue, the agreement does not bind the parties unless the parties expressly agree to be bound by it. (5) The joint statement may be tendered as evidence of matters agreed on and to identify the issues on which evidence will be called. #### 7.32 Conduct of trial with expert witnesses At a trial, the court may make an order in relation to the giving of evidence by expert witnesses, including an order that: (a) an expert witness clarify the expert witness’s evidence after cross‑examination; or (b) an expert witness give evidence only after all or certain factual evidence relevant to the question has been led; or (c) each party intending to call an expert witness is to close that party’s case, subject only to adducing the evidence of the expert witness; or (d) each expert witness is to be sworn and available to give evidence in the presence of each other; or (e) each expert witness give evidence about the opinion given by another expert witness; or (f) cross‑examination, or re‑examination, of an expert witness is to be conducted: (i) by completing the cross‑examination or re‑examination of the expert witness before another expert witness; or (ii) by putting to each expert witness, in turn, each question relevant to one subject or issue at a time, until the cross‑examination or re‑examination of all witnesses is completed. ## Part 7.2—Assessors #### 7.33 Application of Part 7.2 This Part applies to all applications other than: (a) an application for divorce; or (b) an application for an order that a marriage is a nullity; or (c) an application for a declaration as to the validity of a marriage, divorce or annulment. #### 7.34 Appointing an assessor (1) A party may apply for the appointment of an assessor by filing: (a) an Initiating Application (Family Law) and an affidavit; or (b) after a proceeding has started, an Application in a Proceeding and an affidavit. (2) The affidavit filed with the application must: (a) state: (i) the name of the proposed assessor; and (ii) the issue about which the assessor’s assistance will be sought; and (iii) the assessor’s qualifications, skill and experience to give the assistance; and (b) attach the written consent of the proposed assessor. (3) The court may appoint an assessor on its own initiative only if the court has: (a) notified the parties of the matters referred to in subrule (2); and (b) given the parties a reasonable opportunity to be heard in relation to the appointment. #### 7.35 Assessor’s report (1) The court may direct an assessor to prepare a report. (2) A copy of the report must be given to each party and any independent children’s lawyer. (3) An assessor must not be required to give evidence. (4) The court is not bound by an opinion or finding of the assessor, but there is a presumption that the court will adopt an opinion or finding of the assessor unless there are exceptional circumstances. #### 7.36 Remuneration of assessor (1) An assessor may: (a) be remunerated as determined by the court; and (b) be paid by the court, or a party or other person, as ordered by the court. (2) The court may order a party or other person to pay, or give security for payment of, the assessor’s remuneration before the assessor is appointed to assist the court.