Wednesday, 8 December 2010

Family Court: no right to legal representation in family report interviews

The Full Court of the Family Court has ruled that there is no right to legal representation in the family report interview process.

It did so in the Tryon and Clutterbuck saga. Mr and Mrs Tryon had previously been unco-operative with the obtaining of a DNA report about their twins. Mr Clutterbuck said that he was the father, even though Mr and Mrs Tryon had not separated. The Federal Magistrates Court had found, therefore, that in light of their refusal to be co-operative, that Mr Clutterbuck was the father.

Following an unsuccessful appeal to the Full Court of the Family Court, the matter ended up in the Family Court. The Tryons refused to take part in the family report process (where a psychologist or social worker interviews the family to assess what is in the best interests of the child) without having their lawyer present. Not surprisingly, the family report writer was not going to undertake an interview with a lawyer present.

An order was then made for their to be a family report- with the Tryons to attend without their lawyer. Not happy with this result, the appealed, saying that they had a right to a lawyer.

The Full Court of the Family Court rejected the appeal and the alleged right:

  1. In the course of written submissions in support of that challenge, senior counsel for the Tryons asserted that the trial judge had erred by refusing to allow their solicitor to be present at the interview for the purpose of the preparation of the s 62G report. So doing was asserted to have constituted a denial of natural justice to the Tryons.
  2. At other places in his written submissions, senior counsel for the Tryons referred to the “exercise of discretion” in relation to the question of the Tryons’ entitlement to legal representation at interviews with the family consultant.
  3. Early in the course of oral submissions to this Court, senior counsel for the Tryons clarified that the real basis of the challenge maintained by them was that the Tryons had an absolute right to be legally represented during interviews with the family consultant for the purposes of preparing the s 62G report. By denying the Tryons that right, the trial judge was asserted to have denied them natural justice. Senior Counsel for the Tryons thus confirmed that no part of the challenge to the trial judge’s order involved questions of the exercise of discretion. Put simply, the Tryons’ contention was thus that the trial judge had no discretion to deny the Tryons the right to be represented during the interviews.
  4. In his written submissions, senior counsel for the Tryons submitted that although a family consultant “does not sit judicially or possess the qualifications of a judicial officer he or she nevertheless performs discretionary functions, sometimes analogous to judicial work”.
  5. Reference was then made to the judgment of Heydon J in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531, in reliance upon which it was submitted that the “discretionary functions carried out by a family consultant” gave rise to obligations of the kind to which Heydon J referred in the context of the Industrial Relations Court. We struggle to accept that a family consultant exercises any “discretion” in the preparation of a report pursuant to s 62G of the Act, or otherwise discharges functions “analogous” to judicial functions.
  6. In our view, the role of the family consultant in acting pursuant to s 62G is that of an expert preparing a written report in reliance upon his or her expertise. Whilst the expert opinion evidence of the family consultant may assume significance in the exercise of discretion by the court in the proceedings in which it is received, that does not in our view imbue the task undertaken by the family consultant with discretionary or judicial elements.
  7. It was further submitted by senior counsel for the Tryons that:
    1. In the absence of a definitive ambit of enquiry contained in the legislation that founds the power to appoint a consultant, one necessarily must invoke the rules of natural justice. These have been referred to as rules of procedural fairness and are designed to ensure that decision-making is fair and reasonable. Put simply, natural justice involves decision-makers informing people of the case against them or their interests, giving them a right to be heard (the hearing rule); not having a personal interest in the outcome (the rule against bias); and acting only on the basis of logically probative evidence (the no evidence rule).
  8. Whilst we do not disagree with the statement of principle asserted by senior counsel for the Tryons, there is in our view a significant distinction between a person or body exercising “decision-making” powers, such as a court or tribunal, and a person, such as a family consultant, who provides expert opinion evidence to such body for the purpose of its decision-making function. To the extent that an expert witness is shown to have departed from the standards to which senior counsel referred, the weight likely to be given to such evidence by the decision-maker will be reduced, or the evidence possibly even ignored.
  9. It was further submitted by senior counsel for the Tryons that:
    1. There is a presumption in law that the rules of natural justice must be observed in exercising statutory power that could affect the rights, interests or legitimate expectations of individuals. It may be the case if action is taken by a public official by or on behalf of a public sector agency to merely collect information and report to the management of an agency, there is no obligation to notify the subject of the complaint. However, if an investigation will lead to findings and recommendations about the matter, the investigator should provide natural justice to the person against whom allegations have been made.
  10. We do not disagree with the statement of principle asserted in this submission. We do not accept however that the family consultant exercises any “power” in preparing a family report. Nor does the family consultant make “findings” in the sense that the term is applied to judicial determinations. Nor does it follow that the report of a family consultant “will lead” to findings by the court in which the evidence of the family consultant is adduced with respect to the “rights, interests or legitimate expectations” of parties to the proceedings in that court. They may have that result, or they may not. What impact, if any, the report of the family consultant has upon the exercise of a judge’s discretion will only be determined after its author has been cross-examined if the report is controversial, and all other relevant evidence considered. Clearly, the extent to which it emerges in the course of cross-examination of a family consultant that he or she has expressed opinions or recommendations in the absence of affording a party a fair opportunity to be heard is likely to reduce, or even destroy the weight which would otherwise be given such conclusions or recommendations.
  11. Senior counsel for the Tryons also relied upon the decision of the Federal Court in WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30; (2004) 134 FCR 271 in which the Refugee Review Tribunal erroneously refused to allow a solicitor to represent a person whose rights under the migration laws of this country were under consideration. There is an obvious and material difference between being represented in proceedings which could result in a person’s expulsion from, or detention in the Commonwealth, being represented, and a person being represented for the purpose of the preparation of a report pursuant to s 62G of the Act, the weight given to which would be determined after the parties referred to in such report had the opportunity to cross-examine its author during the course of proceedings in the court in which other evidence would also be adduced, and tested.
  12. Senior counsel for the Tryons sought to support his clients’ case by reference to the decision of the High Court in R v Cook; Ex parte Twigg [1980] HCA 36; (1980) FLC 90-859, (1980) 147 CLR 15. It was submitted that the High Court accepted in Cook’s case that a “s 62G inquiry involves or may involve the parties seeking legal advice as to whether they can or whether they may or may not answer questions”. [Transcript 16 April 2010, page 11, lines 21-23]. The entitlement to legal representation was submitted to have been a “basic right”, identified and recognised by the High Court.
  13. It was thus submitted that:
...once you have a basic right in the context of a s  62G order not to answer questions, then it’s not a quantum leap, it’s not a substantial move to conclude, well, that right must necessarily involve legal advice. And legal advice based upon the issues to be determined, legal advice based upon the law, on the rules of evidence, etcetera.
Now, it would be passing strange to countenance a procedure where a person in the Appellants’ - people in the Appellants’ position could obtain legal advice in contemplation of a s 62G hearing in advance without knowing what form the hearing would take, without knowing what questions would be asked, without knowing what issues the counsellor would raise or be interested in over and above the very broad outline contained in the original order.
So once you start with the premise that there is a right either to be silent or to answer some questions, then we would argue that necessarily, as a matter of fairness and natural justice, just involve legal advice. And to make any sense of that proposition which we say is basic, it must necessarily require the provisions of legal advice in the hearing at the time the hearing takes place. [Transcript 16 April 2010, page 11, lines 25 – 41].
  1. The combination of the right to legal advice prior to the preparation of a s 62G report, an absence of express statutory prohibition on legal representation during interviews with a family consultant for the preparation of such report, the nature of the report, and its potential significance were thus submitted to lead to the conclusion that parties to proceedings in which such a report was ordered had an absolute right to legal representation during interviews for its preparation.
  2. Senior counsel for the Attorney-General submitted that there was no constitutional entitlement to legal representation, except in the area of serious criminal offences in reliance upon the decision of the High Court in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 and New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309.
  3. It was accordingly submitted that the only basis upon which the Tryons could claim a “right” to legal representation at interviews conducted for the purpose of a s 62G report must be found within the Family Law Act as a statutory right or, if not able to be found in the Act, as a requirement of natural justice. Senior counsel for the Attorney-General submitted that neither of those possible bases for a “right” to legal representation could be established.
  4. It was submitted by senior counsel for the Attorney-General that s 62G contained no express right to legal representation in relation to the preparation of a report ordered pursuant to the section. It was further submitted that there was no basis upon which it could be said that s 62G implied any “right” to legal representation.
  5. As we have earlier recorded, senior counsel for the Tryons submitted that there is no prohibition in s  62G on parties being legally represented at interviews with a family consultant for the purpose of preparing a report pursuant to s  62G of the Act. The absence of an express, or implied “right” to, or prohibition upon legal representation at interviews for the preparation of reports renders closer scrutiny of the nature of the process enlivened by the making of a s 62G order appropriate.
  6. The crux of the submissions of senior counsel for the Attorney-General in relation to this topic were that:-
    1. It is arguable that no obligation to accord natural justice arises in respect of the actual preparation of the report by the family consultant.
    2. Obligations to accord natural justice are most readily found to be imposed upon ‘decision-makers’. However, the family consultant is not acting as a decision-maker. He/she is preparing a report, that may be used by the trial judge when the judge makes decisions in the exercise of judicial power.
  7. By reference to the decisions of the High Court in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, and Edelsten v Health Insurance Commission (1990) 27 FCR 56, Northrop and Lockart JJ at 69-70, it was further submitted by senior counsel for the Attorney-General that “arguably” there was no requirement to afford procedural fairness in respect of the preparation of the family consultant’s report because it was “preliminary in nature” and lacked finality or immediate consequences for the Tryons, or the father.
  8. In support of the contention that the family report was “preliminary” to the issue to be determined, which related to the best interests of the children the subject of the proceedings, senior counsel for the Attorney-General relied upon the fact that the family report was only one of a number of evidentiary matters to be considered by the court determining the parenting proceedings.
  9. Senior counsel for the Attorney-General also relied upon the reality that the judge finally determining the proceedings would, in accordance with the principles of natural justice, afford all parties the opportunity to challenge the contents of, or reliance upon, the report produced pursuant to s 62G. It was submitted however that those matters gave rise to no “right” to legal representation at interviews conducted for the purpose of preparing the s 62G report.
  10. It was further submitted by senior counsel for the Attorney-General that:
    1. In any event, even if the rules of natural justice did apply during the preparation of the report itself, the content of that obligation to accord natural justice would not extend to any requirement to permit legal representation at appointments with the family consultant.
  11. It was further submitted on behalf of the Attorney-General that what was required by a decision maker to satisfy natural justice obligations would “largely depend on the particular facts of each particular case” and that there was “no fixed body of rules”, the requirements of natural justice being “flexible”, the circumstances of a particular case determining what was required in accordance with “the duty to act fairly”. (See Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Mason J at 585.)
  12. By reference to the judgment of Brennan J in National Companies & Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296 and the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 it was submitted that the terms of the Family Law Act, and particularly s 62G, which created the function, the nature of the function and the administrative framework in which the statute requires the function to be performed, were factors material to determining what had to be done to satisfy the requirements of natural justice.
  13. Having analysed those factors (paragraphs 18, 19 & 20) senior counsel for the Attorney-General admitted that:
    1. Whilst the content of any obligation to accord natural justice may extend to giving the Appellants an opportunity (or opportunities) to be interviewed, and to present material to the family consultant that they considered relevant, it would not extend to requiring the family consultant to conduct the interviews in the presence of a legal representative. There is nothing in the statutory framework that supports such an implication. Rather, if anything, it supports the opposite conclusion.
  14. For reasons which he articulated, senior counsel for the Attorney-General submitted that the High Court’s decision in Cook provided no support for the Tryons’ contention that they had a “right” to legal representation, or that denying them legal representation at interviews with the family consultant constituted a denial of natural justice. With respect to senior counsel for the Tryons, largely for the reasons articulated by senior counsel for the Attorney-General, we are not persuaded that the High Court’s decision in Cook supports the Tryons’ claim. There is a material distinction between providing legal advice to a party, or anyone else who is to be interviewed by a family consultant for the purpose of preparation of a s 62G report, and having a legal representative present during the course of such interviews.
  15. The nature of the s 62G report, the reality that the expert opinion evidence contained in it may be tested, and that the weight given to it is a matter for the court, combined with the reality that such evidence is only part of the evidence before the court, and that such weight is ultimately likely to be significantly or even decisively influenced by findings made by the court with respect to disputed issues of fact are influential in the conclusion we have reached in relation to this issue.
  16. The provisions of s 135 of the Evidence Act 1995 (Cth) provide further support for concluding that, although the family consultant conducting interviews for the preparation of the s 62G report had an obligation to give each of the parties and any other persons interviewed for that purpose a fair and unbiased hearing, such obligation did not extend to a “right” to legal representation during such interviews. The safeguards to which we have referred alleviate the risk that a party will be adversely impacted in parenting proceedings in the event of the family consultant failing to conduct interviews fairly and impartially.
  17. Section 135 provides:
General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)  be unfairly prejudicial to a party; or
(b)  be misleading or confusing; or
(c)  cause or result in undue waste of time.
  1. In submissions in reply, senior counsel for the Tryons submitted:
    1. The Family Consultant’s Report is the conduit through which the views of the children are put before the court. The process engaged in preparing/obtaining the report must be transparent. The accuracy and reliability of the facts adduced in the report can only be properly ensured via a legal representative. The presumption that a lawyer would hinder or obstruct the process is misconceived. Rather than hinder or obstruct, the presence of a lawyer would guard against second and third-hand hearsay; oppressive, unfair and misleading questions; and bullying.
  2. With respect, this submission does not really advance the Tryons’ contention that they have had an absolute right to legal representation at interviews with the family consultant, any more than would the converse of the propositions advanced in this submission be supportive of the absence of such an entitlement. With respect to senior counsel for the Tryons, the factual assumptions upon which the submission is based are not assumptions we would make. The submission also overlooks the reality that it is the court in which the report is received which decides the proceedings, not the family consultant. The family consultant is an expert witness. The principles governing expert opinion evidence are not in doubt. In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, Heydon J (as he then was) clearly explained the nature of expert opinion evidence, and the role such evidence plays, or may play, in proceedings determined by the “ultimate trier of fact”, which in this case is undoubtedly the court.
  3. Nowhere, either in the provisions of the Evidence Act governing expert opinion evidence, or any decision to which we have been referred or have discovered for ourselves, does the proposition that a party is entitled to legal representation during the course of preparation of expert opinion evidence find support. That cannot be inadvertent.
  4. In his submissions in reply, senior counsel for the Tryons sought to rely upon s 41 of the Evidence Act in support of the asserted entitlement to legal representation at interviews with the family consultant.
  5. Section 41 of the Evidence Act, which, as senior counsel for the Tryons reminded the Court, is preserved by s 69ZT(1)(a) of the Act, provides:
Improper questions
(1)  The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question):
(a)  is misleading or confusing; or
(b)  is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or
(c)  is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
(d)  has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability).
(2)  Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account:
(a)  any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and
(b)  any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and
 (c)  the context in which the question is put, including:
(i)  the nature of the proceeding; and
(ii)  in a criminal proceeding--the nature of the offence to which the proceeding relates; and
(iii)  the relationship (if any) between the witness and any other party to the proceeding.
(3)  A question is not a disallowable question merely because:
(a)  the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or
(b)  the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.
(4)  A party may object to a question put to a witness on the ground that it is a disallowable question.
(5)  However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.
(6)  A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.
Note: A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section: see section 195.
  1. Again, with respect to senior counsel for the Tryons, the provisions of s 41 of the Evidence Act are directed to the court which decides the proceedings in which the family consultant’s report may be received as evidence. We do not perceive anything emerging from s 41 advances the Tryons’ contentions.
  2. Senior counsel for the Tryons further submitted in reply:
    1. A report, prepared in an evidentiary equitable environment, can be given the weight it deserves. The garnering of evidence in such a report is an essential part of the judicial process: it is innate. Should it be contaminated, the substantive hearing becomes a mockery.
  3. With respect to senior counsel for the Tryons, we cannot accept that the substantive hearing becomes a “mockery” in the circumstances articulated in this submission. In the event of the family report being shown to have been “contaminated” on any basis, its contents may be totally disregarded or given little weight. Whilst it is true that the greater the extent to which the author of a family report departs from standards of fairness and impartiality in its preparation, the less likely that the report will be afforded significant weight, that does not in our view translate as an entitlement to legal representation during interviews for its preparation.
  4. Finally, it was submitted in reply by senior counsel for the Tryons that:
    1. Family consultants are not trained in law. They are not trained in the manner of eliciting information and asking questions in a fair and appropriate way. The presence of a legal representative would ensure that fairness prevailed; it would not undermine he process. Rather, it would advance it. It would strengthen the Report in that the court could be comfortably satisfied that procedural fairness was a hallmark of its preparation. The interview-ambiance of a low-key approach and sensitivity would be retained.
  5. With all due respect to senior counsel for the Tryons, we do not accept that family consultants are limited in the various ways asserted in this submission. Family consultants are “officers” of the court (s 38N(1)(d)) whose functions and obligations are prescribed by s 11A of the Act. Family reports “may” be received in evidence in proceedings under the Act (s 62G(8)), they are not automatically entitled to be received in evidence. The tender of the report may be challenged on the bases identified by senior counsel for the Tryons, or on other bases (e.g. s 135 of Evidence Act 1995). The weight appropriate to be given to a family report is that determined by the court hearing the proceedings in which the report is tendered, if it is received in evidence by the court. Quite apart from the overarching requirement of the court to afford parties to proceedings before it natural justice, an ample legislative framework precludes family reports suffering from the defects referred to in this submission adversely impacting upon a party’s rights, without the necessity of the parties being legally represented at interviews for the purpose of preparing such reports.
The section 11C challenge
  1. In the course of senior counsel for the Tryons’ written submissions, it was asserted that s 11C of the Act provided an “avenue” of admissibility of an “admission” but that the section did not prevent unfairly prejudicial and irrelevant questions being asked. Only by a lawyer having been present were the requirements of s 11C asserted to have been potentially fulfilled.
  2. During the course of oral submissions, prior to the intervention of the Attorney-General, the potential operation for s 11C of the Act assumed greater prominence.
  3. Section 11C of the Act provides:
Admissibility of communications with family consultants and referrals from family consultants
(1)  Evidence of anything said, or any admission made, by or in the company of:
(a)  a family consultant performing the functions of a family consultant; or
(b)  a person (the professional) to whom a family consultant refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is admissible in proceedings under this Act.
Note 1:       Communications with family consultants are not confidential (except in the special circumstances set out in subsection 38BD(3) in relation to consultants having several roles).
Note 2:       Subsection (1) does not prevent things said or admissions made by or in the company of family consultants from being admissible in proceedings other than proceedings under this Act.
(2)  Subsection (1) does not apply to a thing said or an admission made by a person who, at the time of saying the thing or making the admission, had not been informed of the effect of subsection (1).
(3)  Despite subsection (2), a thing said or admission made is admissible even if the person who said the thing or made the admission had not been informed of the effect of subsection (1), if:
(a)  it is an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b)  it is a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
  1. As is clear from its terms, the section is directed to the admissibility of statements made during the course of interviews for the preparation of the family report. As those statements would normally be contained in, and conveyed by a family report, the section can be seen as relevant to the admissibility of family reports.
  2. Senior counsel for the Tryons asserted that, at least inferentially, s 11C provided support for his contention that the Tryons had a “right” to legal representation during interviews with a family consultant for the purpose of preparing a s 62G report. Particular emphasis was placed upon the provisions of s 11C(3) of the Act, by reason of what senior counsel for the Tryons described as admissions against interest potentially having “serious implications”. It was thus submitted that:
... where one is talking in terms of admissions against interest, which could have serious implications, there is a requirement, first of all, that the proceedings be recorded. Secondly, that the person being interviewed or interrogated be represented, and the analogy that we’ve just given, I think just reinforces the importance of this type of inquiry, and justifies, for those reasons alone, that the legal representative should be present during the course of such an inquiry. Now, we acknowledge, of course, that the family consultant is not legally trained, and may be totally unaware of the strictures of the law about certain events, hearsay evidence and all that sort of thing. But that’s even more reason why there should be a lawyer present. [Transcript 16 April 2010, lines 5-16 page 20].
  1. Senior counsel for the Tryons submitted that the absence of any clear indication in s 11C as to who was to inform the party or persons being interviewed of the effect of s 11C(1) and, the fact that it would be “almost impossible to contemplate giving this sort of advice in advance, because the interviewee may be willing to cooperate as far as they possibly can, but be unaware of the finer points that might emerge in remaining silent, answering some questions, not answering others, being aware of their rights, the right to remain silent, etc”, provided further support for concluding that the Tryons had the right to representation at interviews with the family consultant.
  2. Senior counsel for the Attorney-General submitted that s 11C provided no assistance to the Tryons’ appeal. Senior counsel for the Attorney-General submitted that section 11C of the Act was a provision:
    1. ...making it clear that communications with family consultants are admissible in proceedings under the Act, as long as, generally (and subject to certain exceptions) parties are made aware of this fact beforehand. It should not be interpreted as having any further effect, or otherwise altering the nature of the family consultant’s role. If anything, it can be argued that Parliament expressly made provision for a ‘safeguard’ within s11C, by ensuring that things said or admissions made by a person are admissible only if, generally, that person had been informed of the effect of s 11C(1) ie was aware of their admissibility. The express inclusion of a safeguard like this tends to suggest that, the Parliament did not consider it necessary for there to be other safeguards eg to do with legal representation.
  3. We have previously considered, and rejected, the Tryons’ assertion that, by implication from s 62G, and the nature of the interviews the family consultant was conducting for the purpose of preparing a s 62G report, the Tryons were entitled to legal representation at such interviews. We agree with the submissions of senior counsel for the Attorney-General that s 11C does not provide, either independently or in conjunction with the other matters relied upon by senior counsel for the Tryons, a basis for finding a “right” to legal representation at interviews with a family consultant for the preparation of a s 62G report. In any event, it cannot be assumed that legal representation at interviews with a family consultant would necessarily avert a failure to comply with the requirements of s 11C(1) of the Act. Nor would it alter the operation of s 11C(3).
  4. The family consultant preparing a s 62G report undoubtedly has an obligation to deal fairly and impartially with parties and/or other persons who are interviewed for the purpose of preparation of the s 62G report. Section 11C provides a statutory “safeguard” in relation to interviews with a family consultant for the purpose of a s 62G report. Subject to the exceptional circumstances provided for in s 11C(3), the failure, at least inferentially by the family consultant conducting interviews for the preparation of s 62G report, to point out to the parties and other persons interviewed the effect of s 11C(1) of the Act, renders the resultant report inadmissible. We do not understand that compliance with s 11C renders admissible any matter appearing in the report which falls beyond the terms of the section, although such matters would not necessarily be inadmissible.
  5. Assuming that a s 62G report is not rendered inadmissible by s 11C(2) or on any other basis, its contents may be tested by cross-examination, and must in any event be considered in the light of the court’s findings with respect to disputed issues of fact, the outcome of which will impact upon the weight likely to be given to the opinions contained in the report.
  6. There are within s 60CC of the Act a number of other matters to which the court must have regard. The judge determining the parenting proceedings is obliged to provide adequate reasons for his or her decision. Such decision may be appealed against as of right. The absence of any express or implied entitlement to legal representation during interviews for the preparation of the family report, the nature of the process entailed in the preparation of a s 62G report, and its status or function in parenting proceedings, combined with the abundance of safeguards to which we have referred lead us to conclude that parties or other persons interviewed by family consultants for the purpose of preparing a family report have no “right” to legal representation during such interviews. We thus conclude that the trial judge did not err in making the order which gives rise to the present challenge.(emphasis added)

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