Family reports and family report writers
A family report is a written assessment prepared by a social science expert to assist a judge in deciding parenting arrangements that are in the best interests of the child or children. Family reports involve an independent forensic assessment of the family, done from a social science and non-partisan perspective. Family reports usually provide advice about family dynamics including the attitudes and parenting capacity of each parent, the child’s relationship with the parents and significant others, the child’s wishes and views, and any risks to the family.
The weight or reliance given to the family report is at the judge’s discretion and will vary for each case. However, family reports are commonly used and are of great importance in practice.
While the terms ‘family report’ and ‘family report writer’ are commonly understood in family law, they are not specifically defined terms in the Family Law Act 1975. Their meaning is derived from a number of provisions in family law legislation, guidelines and operational approaches.
Family consultants and single expert witnesses
The court may order that a report be prepared by a family consultant under sections 55A and 62G of the Family Law Act.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 define family consultant’s report as a report concerning the best interests of the child, prepared under sections 55A or 62G of the Family Law Act.
A family consultant’s report may be a child impact report (a shorter report conducted earlier in proceedings), specific issues report or a family report. (Rule 8.11 FCFCA (Family Law) Rules 2021,. These report types are not defined in a legislative instrument.)
Family consultants are appointed in two main ways:
In-house. These family consultants are employees of the Federal Circuit and Family Court of Australia’s Court Children’s Service (CCS). The work of in-house family consultants is organised through the courts and includes family report writing. These family consultants are from the professions of social work and psychology.
Regulation 7 statutory appointments. These family consultants are private practitioners who hold a statutory appointment from the Chief Executive Officer(s) of the Federal Circuit and Family Court of Australia under regulation 7 of the Family Law Regulations 1984. They prepare family reports on a fee-for-service basis, paid for by the courts. They are from the professions of social work and psychology.
In practice, the term ‘family report’ is also commonly used to refer to a family assessment and report of the same nature prepared by a single expert witness. Australia wide, these private practitioners are jointly appointed by, or on behalf of, both parties to the proceeding. Single expert witnesses are governed by Division 7.1.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. They are usually from the professions of psychology, psychiatry, and social work. The objective of a family report prepared by a family consultant (in-house or regulation 7) and single expert witness is the same and requires experts with similar social science skills and expertise. The financial capacity of each party will assist the court to determine whether a family consultant is assigned to prepare a report, or the parties are to pay for the services of a single expert witness.
In this paper, references to family reports include both family consultant’s reports and reports of the same nature prepared by single expert witnesses
Single expert witnesses may also prepare other specialised private reports at the direction of parties or the court on specific issues, which are not considered family reports or assessments.
‘Family consultant’ refers to both in-house and regulation 7 family report writers. ‘Private family report writer’ is often inconsistently applied to refer to regulation 7 family consultants, or to single expert witnesses, or both. Diagram 1 depicts these overlapping terms.
Scope and requirements of a family report
The scope and content of a family report is also not comprehensively prescribed in the Family Law Act. A range of legislation and official documents outline what needs to be included in a family report. Some of these requirements are repetitive across the documents, vary in specificity and detail and do not apply consistently to the different cohorts of family report writers (in-house, regulation 7 appointments and single expert witnesses). What is required of a family report can be summarised as follows:
The Family Law Act 1975 requirements apply to family consultants only and provide that a report must establish what is in the best interests of the child, include the views of the child, and any other matters concerning their care, welfare and development.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 define a family consultant’s report as a report concerning the best interests of a child, provide that the court must identify the issues to be addressed in a family consultant’s report,19 and provide that a single expert must receive instructions on the issues about which their opinion is sought.20
The Australian Standards of Practice for Family Assessments and Reporting (the Standards), developed by the Family Court of Australia, Federal Circuit Court and the Family Court of Western Australia, apply to all family report writers including single expert witnesses. The Standards comprehensively outline what the family report should cover, including the views of the child, the child’s relationship to their parents, risk assessments, cultural issues and recommendations on parenting arrangements. The Standards also prescribe the methodology and approach that should be taken by the report writer. The Standards are not legally binding.
Various Practice Guidelines, Professional Directions and supporting documents are produced by CCS and apply to family consultants (both in-house and regulation 7). FCCCS also has their own practice guidelines. For both CCS and FCCCS, these internal governance documents are consistent with the Standards.
The Practice Guidelines and Professional Directions for family consultants include a clear structure for family reports and ensure that reports cover the following key issues and risks at a minimum:
current parenting arrangements
the history of the relationship and the dispute
child abuse and the involvement of child protection
family violence
mental health
drugs and alcohol
the child’s and each parent’s views
cultural issues, particularly for individuals of Aboriginal or Torres Strait Islander background
These guidelines and directions are helpful in ensuring that family consultants produce comprehensive and consistent reports. However, these guidelines are not binding on, nor available to, single expert witnesses.
Appendix A – Requirements of a family report
Requirements in the Family Law Act Reports prepared by family consultants:
are to include such matters as the court thinks desirable that are relevant to the proceedings concerning the care, welfare and development of a child;
must include the views of the child (unless not applicable);
may include any other matters that relate to the care, welfare or development of a child;
establish what is in the best interests of the child, which is a reference to section 60CC of the Family Law Act.
Requirements in the Federal Circuit and Family Court of Australia (Family Law) Rules
Rule 8.11 of The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides the an application for a family consultant's report, and any order made, must identify the issues to be addressed by the report.
The rules also outline requirements for reports prepared by single expert witnesses and include that the report must be in relation to a substantial issue in the case.
Specific requirements include that the report must:
state the reasons for the expert witness’s conclusions;
include a statement about the methodology used in the production of the report; and
include the following in support of the expert witness’s conclusions:
the expert witnesses qualifications;
the literature or other material used in making the report;
the relevant facts, matters and assumptions on which the opinions in the report are based;
a statement about the facts in the report that are within the expert’s knowledge;
details about any tests, experiments, examinations or investigations relied on by the expert witness and, if carried out by another person, details of that persons qualifications and experience;
if there is a range of opinion, a summary of these opinions and the basis of the expert witness’s opinion;
a summary of the conclusions reached;
if necessary, a disclosure that:
a particular question or issue falls outside the expert witness’s expertise;
the report may be incomplete or inaccurate without some qualification and the details of the qualification; or
the expert witness’s opinion is not a concluded opinion because further research or data is required or because of any other reason.
Requirements in the Australian Standards of Practice for Family Assessments and Reporting
The Standards were endorsed by all family courts – the Family Court of Australia and Federal Circuit Court of Australia (now known as the Federal Circuit and Family Court of Australia) and Family Court of Western Australia – and provide guidance to all family report writers (family consultants and single expert witnesses), family reports and family assessments. The Standards are detailed, exceed thirty pages and are not legally binding. The Standards require family reports to cover:
The views of children, how the views were obtained, the weight given to the child’s statements and perceptions and their maturity to independently express such views.
Individual assessments of each child as an individual, in a family setting including sibling relationships and all caregivers, and in the broader social environment.
Assessment of relationships between each child and all adults who perform a caretaking role with the child including the capacity of the parent to relate to and manage the child.
An expert family violence assessment where family violence is identified as an issue.
References to research that supports and does not support assessments.
Assessment of any cultural considerations.
Assessment of the level and nature of risks to the welfare of children.
Recommendations on long term parenting arrangements.
Opinions and evidence about the personality characteristics of an individual.
The particulars of qualifications and experience of the assessor.
The Standards also prescribe the methodology and approach that can be used, including that family assessors should strive to use multiple data gathering methods in order to increase accuracy and objectivity, that they conduct interviews and spend sufficient time with significant people, what and when they may communicate with parties and third parties and when they may not.
Requirements in the Professional Directions and Practice Guidelines for Family Report Writers
CCS also provide Professional Directions and Practice Guidelines for family reports which are made available to their family consultants (in-house and regulation 7 appointments). These cover issues including the content of family reports, and include requirements such as: culture is recognised and considered, risk factors alleged by parties or identified by the family consultant must be included and at a minimum provide commentary on family violence, child safety and wellbeing, drugs and alcohol, and mental health.
The above is largely extracted from the Improving the Competency and Accountability of Family Report Writers Consultation Paper
