ICLs, Expert Reports, and Psychiatric Assessments: What Happens When a Party Refuses to Participate?

Expert evidence sits at the heart of modern family law adjudication. In complex parenting matters, particularly those involving concerns about mental health, family violence, risk, or entrenched conflict, the Court routinely turns to specialist professionals to assist it in forming an evaluative judgment about the child’s best interests. Psychologists, psychiatrists, and family consultants routinely operate as extensions of the fact-finding function, providing insights into parental functioning, attachment relationships, and risk profiles that the Court could not reliably ascertain unaided.

Yet this essential process sometimes meets resistance. Parties may decline to attend psychiatric or psychological assessments, refuse to co-operate with evaluative processes, or object to the involvement of particular practitioners. The question then arises: how does the Court respond to non-participation, and what are the implications for the administration of justice and procedural fairness?

A recent appellate decision, Conner & Conner (No 2) [2025] FedCFamC1A 223, provides a contemporary lens through which to examine this issue. Although the case was primarily concerned with appealability, its reasoning sits within a broader line of authority reinforcing the Court’s powers to compel expert engagement and the limited scope for litigants to impede that process.

The Centrality of Expert Evidence to Parenting Jurisdiction

The Family Law Act 1975 (Cth) confers expansive powers on the Court to obtain expert assistance. Section 62G authorises the preparation of family reports by family consultants; the FCFCOA (Family Law) Rules 2021 facilitate single-expert evidence, including psychiatric and psychological evaluations; and the overarching purpose provisions in the FCFCOA Act empower the Court to make any direction conducive to the just, efficient, and timely disposition of cases.

These instruments collectively reflect a jurisprudential reality: the Court cannot determine allegations of psychological risk or parental impairment without access to specialised evidence. Mental health assessments in particular serve a foundational role where the Court must weigh competing accounts of behaviour, functioning, and risk. Participation in these assessments is therefore not merely helpful; it is often indispensable to the Court’s capacity to discharge its statutory obligations.

The Significance of Conner & Conner (No 2): Procedural Directions and Appellate Constraints

In Conner (No 2), the mother attempted to appeal case-management orders requiring her attendance at a psychiatric assessment and authorising the psychiatrist to engage a psychologist for psychometric testing. She resisted participation in the assessment process and sought to challenge both its substance and procedural form.

The Full Court dismissed the appeal as incompetent, reaffirming that directions of a procedural nature, such as those facilitating expert evidence, are not “judgments” capable of attracting appellate review unless they finally determine substantive rights. The psychiatric assessment did no such thing; it simply formed part of the evidentiary process leading toward eventual determination. The Court further observed that, even if appealable, the challenge would have been futile, because the scheduled assessment date had passed.

What emerges from Conner is an implicit but important principle: orders compelling expert assessment are part of the ordinary machinery of justice, and litigants cannot unilaterally convert them into substantive grievances merely by objecting to them. The Court’s authority to obtain relevant expert evidence remains paramount, and attempts to obstruct or avoid that process will rarely find sympathy, let alone an appellate remedy.

Non-Participation and Its Consequences: The Court’s Doctrinal Approach

While Conner deals with procedural jurisdiction, the broader jurisprudence clarifies how the Court responds substantively when a party refuses to participate.

First, non-participation does not deprive the Court of the ability to act. The family law jurisdiction has long recognised that where a party withholds relevant information or declines to engage with evaluative processes, the Court may draw adverse inferences. Decisions such as Weir & Weir (1992) FLC 92-338 illustrate the principle that a party who fails to adduce evidence uniquely within their knowledge cannot complain if the resulting evidentiary gap is resolved against them.

This principle readily extends to psychiatric and psychological assessments. If one parent refuses to undergo evaluation, the Court may conclude that they are unwilling to subject their parenting capacity to scrutiny or that concerns raised about psychological functioning may have some basis. Importantly, the Court is not required to make such inferences mechanistically; rather, it assesses the refusal within the broader matrix of evidence, including the nature of the allegations, the reasons proffered for non-participation, and the practical effect on the child’s welfare.

Second, non-participation does not render an expert report inadmissible or procedurally unfair. Family consultants and other experts routinely prepare reports based on the material available to them, noting the absence of a parent where necessary. The Court remains free to place whatever weight it considers appropriate on such a report, but the absence of one party’s participation does not invalidate the process. This principle aligns with the High Court’s guidance in CDJ v VAJ (1998) 197 CLR 172, in which procedural fairness was conceptualised as requiring an opportunity to be heard, not a guarantee that parties can manipulate evidentiary outcomes through refusal.

Third, non-participation may affect the substantive parenting orders ultimately made. Parenting arrangements are inherently evaluative, requiring the Court to consider capacity for insight, co-operation with professionals, willingness to support the child’s relationship with the other parent, and the broader protective and developmental needs of the child. A parent who resists psychiatric evaluation may inadvertently signal a lack of insight into the very issues the Court must investigate. This can influence both interim and final determinations, particularly in cases involving allegations of risk or impaired functioning.

Finally, repeated non-compliance with expert assessment directions may expose a party to adverse cost consequences or further coercive orders. Although family law strives to avoid punitive measures, the Court retains the authority to ensure its processes are not frustrated.

The Role of the Independent Children’s Lawyer

The Independent Children’s Lawyer (ICL) occupies a pivotal position in these disputes. Because the ICL’s mandate is to advance the child’s best interests - rather than to represent a party - their requests for expert evidence carry considerable weight. ICLs frequently identify the need for psychiatric or psychological assessment where neither party has an incentive to obtain independent evidence, yet the issues raised demand expert scrutiny.

When a parent refuses to participate in an assessment sought by the ICL, the Court typically views the refusal not as a private procedural dispute but as a matter affecting the child’s welfare. The ICL’s involvement therefore magnifies the significance of non-participation and strengthens the Court’s inclination to proceed with available evidence and draw inferences where appropriate.

A Jurisprudential Balance: Fairness, Evidence, and the Child’s Best Interests

A recurring theme in the case law is the tension between procedural fairness to the non-participating party and the Court’s overarching obligation to determine the matter in a manner that prioritises the child’s best interests. The Court consistently holds that a party cannot generate procedural unfairness by deliberately refusing to participate. The integrity of the process is maintained by ensuring that opportunities were available; what a party chooses to do with those opportunities is a matter for them, not a basis for appellate criticism.

Conclusion

The Court’s approach to expert assessments is grounded in a clear and coherent jurisprudential framework: expert evidence is indispensable, participation is expected, and refusal carries both evidentiary and practical consequences. Conner & Conner (No 2) illustrates that resistance to such processes does not transform procedural orders into appealable determinations. More broadly, the authorities confirm that non-participation cannot impede the Court’s capacity to resolve disputes or undermine its protective function.

For practitioners, the lesson is straightforward: clients should be advised that compliance with court-ordered expert processes is essential, not tactical. Refusal seldom advances a litigant’s position and frequently undermines it. The Court’s unwavering focus remains the welfare of the child, and expert assessment is one of the primary tools through which that welfare is understood and protected.

By Ashleigh Morris, Family Law Barrister at Victorian Bar.

For briefing enquiries, please email a.morris@vicbar.com.au or contact Patterson's List on 03 9225 7888.