The expert witness—psychologists and judicial gatekeepers in the family court

Abstract

Abstract Since the 17th-century witch trials, the expert witness has been an intrinsic part of the operation of the legal system. This article builds on a prior analysis of Australian family law cases involving allegations of child sex abuse, which revealed experts representing multiple agencies and disciplinary perspectives present conflicting risk assessments for the same case. This second stage of inductive research examined Family Court appeal cases involving psychologists as an expert witness in child custody disputes. It uncovered risks arising from the way in which determinative weight is ascribed by judges to such testimony and a lack of processes for identifying potential disciplinary or professional biases. This has led to a core finding that there is a need for more explicit agreement as to what counts as specialist knowledge, particularly in matters lacking intra-disciplinary consensus and how it is achieved. Equally, there is a need for enforcing compliance with existing Rules that require making clear the methods or practices, relevant facts, matters, and assumptions employed in forming opinions as well as acknowledging alternative opinions that may be relevant. This will support judicial practice associated with determining the reliability and weight ascribed to such advice. Many of the concerns raised here are relevant to other issues the family court considers and relies upon claims of expert knowledge.