In family law cases there are times when substantial issues are beyond the knowledge or expertise of the parties and their counsel making it necessary for them to get help from an expert.
For instance, the valuation of the matrimonial home in a property settlement dispute is best left in the hands of a licensed valuer whose bread and butter is dealing with real estate.
A licensed valuer would be an expert on the value of land in a particular area, assessment of the depreciation of the house and its current market value. The parties and counsel, including the court, have the option of bringing in a single expert witness who can provide evidence about substantial issues in dispute.
Pursuant to the Family Law Rules 2004 – Reg. 15.44, a single expert witness may be jointly appointed by the parties if they agree that expert evidence can help to resolve a substantial issue in their case. Under Reg. 15.45 a single expert witness may also be appointed by the court to give expert evidence.
If the parties have jointly appointed the single expert witness they do not need the court’s permission to give evidence from a single expert witness. The court will consider the expert evidence as part of the party’s evidence in support of their case. Hence, there is no more need to ask for leave of court.
There are more stringent requirements, however, if the tender of expert evidence is by court order. This is because before issuing the order for the appointment of a single expert witness, the court will be considering important factors enumerated under Rule 15.45:
From the foregoing factors, the job of a single expert witness is apparent and it is to provide evidence that will help the court decide on a substantial issue in dispute which is within the expertise of the witness. In adducing evidence, the single expert witness will be executing an affidavit. The affidavit must comply with Rule 15.62(2).
There is a form entitled ‘Affidavit of Single Expert Witness’ prepared by the Court and available for the use of the single expert witness. The form must be typewritten or computerized. The report of the single expert witness must be attached to the affidavit and addressed to the court and the party who is instructing the witness.
The report must also have as attachments the summary of instructions given to the expert and the documents that were used as sources for making the report.
Copies of the expert’s report must be furnished to both parties if the appointment of the expert was made jointly and either of the parties will file the report with the court. However, if the appointment of the expert was through court order then it is the responsibility of the expert to file his report with the Registry Manager who will be the one send copies to the parties.
It must be borne in mind by the parties that the duty of the expert witness to the court prevails over the obligation of the expert witness to the party who procured his services. Hence, the expert witness can be expected to provide an objective and unbiased opinion that is formed independently, free from influence and based on his knowledge, research and expertise. The expert witness’s duties to the court are enumerated in Reg. 15.59.