That’s OK. Believe it or not – not many people know that you can; but as it turns out – you have 21 days from the date of receiving the Report to seek such clarification.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 hold some swagger with the way that Single Expert Witnesses conduct their reports.
Rules 7.26 of the FCFCOA (FL) Rules 2021 does just that – allows a party to clarify a specific issue within their report.
(1) A party seeking to clarify the report of a single expert witness may ask questions of the single expert witness under this rule:
(a) within 7 days after a conference (if any) is held under rule 7.25; or
(b) if no conference is held under that rule, within 21 days after the party received the single expert witness’s report.
(a) be in writing and be put once only; and
(b) be only for the purpose of clarifying the single expert witness’s report; and
(c) not be vexatious or oppressive, or require the single expert witness to undertake an unreasonable amount of work to answer.
(3) The party must give a copy of any questions to each other party.
A Family Law Report Writer is a Special Expert Witness. Other forms of Special Expert Witnesses are Forensic Psychiatric Reports, and Valuation Reports.
The modus operandus of 7.62 can be used to fill in any gaps, inconsistencies, or visible short-comings in the Report, and also, to gauge further views of the Report Writer that were not omnipresent in the Report, and should have been.
Crucially, there are common law underpinnings to the legislative provisions of Rule 7.26.
In the case of O’Cleary Vukasin [2025] FedCFamC1A, the respondent submitted a series of questions to the single expert witness pursuant to Rule 7.26.
The questions were aimed at clarifying aspects of the expert’s report, particularly concerning the valuation of a business in light of a new lease agreement; which demonstrates how Rule 7.26 can be utilized to seek clarification from a single expert witness on specific issues within their report.
It is useful to point out that the statutory elements of 7.26(2) should be carefully considered BEFORE writing to the Expert Witness under the rule:
(a) You won’t get a second chance;
(b) You can only ask to clarify issues raised in the Family Law Report;
(c) It shouldn’t be vexatious or oppressive (or used as a venting mechanism); and should be put in such a way that would force the report writer to spend voluminous time to work on it.
It would be prudent to keep in mind 7.26(3) – whatever questions you give the Report Writer / Special Expert Witness, MUST be passed / copied to the other side.
