In family law proceedings, expert evidence can be critical in assisting the Federal Circuit and Family Court of Australia (‘the Court’) to resolve disputes involving complex psychological, medical, financial, or other specialised issues. Within this framework, three main categories of experts commonly arise in family law litigation: joint experts, adversarial experts, and shadow experts. Each plays a distinct role in supporting the Court’s decision-making, with differing obligations and levels of scrutiny. Understanding these categories is essential to appreciating how expert evidence is used in family law to minimise conflict and reduce cost when resolving disputes.
The Family Law Act 1975 (Cth) (‘the Act’) provides the foundational framework for family law proceedings, including the use of expert evidence. Section 102NN of the Act outlines the Court’s general duties and powers relating to evidence, including the ability to give directions or make orders about expert evidence, such as the matters to be addressed, the number of experts, and how their evidence is to be presented. In addition to this, expert witnesses are required to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. These rules mandate that expert reports must include a declaration that the expert has read and agrees to be bound by the Expert Witness Code of Conduct. This Code is designed to ensure that expert evidence is objective and reliable, which is critical in family law matters where expert opinions often play a significant role in assisting the Court and parties to resolve disputes.
Joint Experts
A joint expert is an expert agreed upon by all parties or appointed by the Court to provide an independent opinion on a specific issue in dispute. A joint expert, also referred to as a single expert, is typically agreed upon by the parties or appointed by the Court to provide an impartial opinion on a specific issue. A single expert may, for example, prepare a family report assessing parenting capacity and child welfare, provide a valuation of property or business assets, or offer a specialist medical or psychological opinion to assist the Court in determining the best interests of the child. The purpose of appointing a joint expert is to reduce partisanship, save costs, and streamline the resolution of disputes. Rule 7.03 of the Family Law Rules 2021 (Cth) governs the use of joint experts, requiring parties to seek the Court’s permission to tender evidence from another expert on the same issue unless specific criteria are met.
Adversarial Experts
Adversarial experts, on the other hand, are appointed by individual parties to support their case. Their role is to provide expert evidence that aligns with the appointing party’s position and generally provide evidence that may challenge or supplement the findings of a joint expert. Alongside single experts, adversarial experts are bound by the Expert Witness Code of Conduct, which requires them to assist the Court impartially and not act as advocates for the party that engaged them. The Court may permit the use of adversarial experts in cases where the issues are complex or where the joint expert’s report is insufficient to address all relevant matters. However, the Court retains discretion to limit the number of adversarial experts to avoid unnecessary duplication and ensure that expert evidence is reasonably required to resolve the proceedings
Shadow Experts
Unlike the two abovementioned experts, shadow experts are typically engaged by a party to review the joint expert’s opinion and assist in preparing their case. Their role is advisory, and they do not provide evidence unless the Court grants leave. Shadow experts are engaged by a party to assist their legal team in understanding technical issues, preparing cross-examination questions, or evaluating the reports of joint or adversarial experts. Unlike adversarial experts, shadow experts do not require Court permission to be engaged, and their work remains confidential and is not tendered as evidence unless specifically authorised. As shadow experts are engaged to assist legal teams in understanding technical matters but do not provide evidence or reports to the Court, they are not explicitly bound by the Expert Witness Code of Conduct. This is because the Code applies specifically to experts who are engaged to provide evidence in proceedings.
Key Differences
The key differences between joint experts, adversarial experts, and shadow experts lie in their purpose, method of appointment, duties, and role in proceedings. Joint experts are engaged by agreement between the parties or appointed by the Court, with their primary function being to provide impartial assistance to the Court. By contrast, adversarial experts are appointed by individual parties (with the Court’s permission) to support their case, though they remain bound by a duty to the Court to provide independent and unbiased opinions. Shadow experts differ in that they are privately engaged by a party to assist the legal team in understanding technical issues and preparing their case, but they do not provide evidence unless later appointed as an expert witness. While the report of joint and adversarial experts is admissible in Court, the opinions of shadow experts are not.
How Ramsden Family Law Can Assist You
At Ramsden Family Law, we understand that expert evidence can feel overwhelming in family law matters. Our team of experienced family lawyers is here to provide clear advice, protect your rights, and help you determine whether a joint expert, adversarial expert, or shadow expert is best suited to your situation.
To make the process easier, we offer a free 30-minute initial consultation where you can discuss your circumstances with one of our experienced family lawyers. This is an opportunity to understand your options and take the first step toward resolving your matter with confidence.
Contact Ramsden Family Law today to arrange your consultation and let us guide you toward a fair and practical outcome for you and your family.
This article provides general guidance only and must not be relied on as legal advice. You should seek advice tailored to your individual circumstances.
