A case involving a disgraced family report writer for the family court has been in the news again, renewing concerns about the oversight and scrutiny of expert witnesses in the court system, in particular family report writers. There are continuing fears in relation to the potential over-reliance of the family court on single expert witnesses, sometimes referred to as the “gods of the court” because of the perceived power they wield in the court system.
This particular issue was raised by the Australian Law Reform Commission (ALRC) in its report last year, as well as in the previous parliamentary inquiry, but we have noted concerns over the issue since at least 2015.
Last year’s ALRC report found that “there was no effective way of holding report writers to account if they failed to meet professional guidelines set by the court”. While the family courts do have a set of standards–the Australian Standards of Practice of Family Assessments and Reporting–which outline good practice, practitioners are “not compelled to comply”. Those standards are “not binding or enforceable, and there is no formal accreditation or monitoring process for compliance in place”. This leads to the criticism that at present, practitioners operate beyond the rule of law.
Aside from concerns over training, accreditation and standards, concerns have also been raised regarding potential monopolies, fee structures, and the difficulty parents feel they face in challenging and overturning reports they disagree with.
The ALRC recommendation last year was that there be an attorney-general governed accreditation scheme for private family report writers, but the ABC reports that the Association of Families and Conciliation Courts (AFCC) “wants to run the proposed scheme”—and that the disgraced psychologist currently in the news is in fact an “influential member” of the AFCC, which is obviously problematic.
The Federal Government has so far completely ignored the ALRC’s recommendations and is persisting with its plans to hold yet another parliamentary inquiry into family law. The previous parliamentary inquiry however already recommended “abolishing private family consultants” as well as creating an accreditation scheme. On this issue alone, action could certainly already be taken based on previous inquiries and recommendations.
The psychologist in question in the current controversy was eventually found guilty of professional misconduct and fined $20,000 by the WA State Administrative Tribunal. The psychologist’s findings that the father was “psychopathic” were found to be unfounded. According to the ABC:
“Dr M knew he did not have the data, the clinical evidence or the training to make that observation.”
In the complicated case, the father wanted a new single expert witness appointed in his matter and his original trial judge agreed that one may be needed, but unfortunately that judge then died. The next judge chose to install a panel of experts instead, with the panel including the disputed psychologist. That judge noted that it was “glaringly obvious” the report had been “coloured by the animosity” between Dr M and Mr Archer, reports the ABC.
When the father appealed his matter, the full bench of the Family Court of Australia “found Dr M’s report was ‘not entirely discredited’”…The Full Court found, though the trial judge only relied on parts where other experts supported the assertions and ‘many of these were adverse to the father’ and did not rely on the unfounded assertions by Dr M.”
However, three of the trial panel’s psychologists later signed a joint “Statement for [a European] Court” in which they strongly criticised the errant psychologist’s report.
“We refute the allegation that the father is in any way psychopathic,” [the statement] says. “We now have substantial evidence about the father and all of this suggests that he is an intelligent and caring person with no history at all of violence … it is essential for [the child] to maintain a relationship with his father.”
(The statement was issued when the case became further complicated when the mother moved the boy overseas.)
Despite the fact that the father says his relationship with his son was effectively destroyed by the psychologist, the father cannot take any civil action against the expert.
Writing on the case, The Australian opines:
“This may be an extreme case but it plays in to longstanding concern about the decisive influence of expert witnesses in bitter family disputes with life-changing consequences — especially when the court relies upon a single expert witness, as it did in this tragic case.
“Psychology is inexact and prone to competing theories, hence popular suspicion about the role of expert bias and inconsistency in shaping family law outcomes. Accreditation of expert witnesses would be a good start to reform but is no substitute for transparency and public scrutiny.”
This is because the case raises another important aspect, which the newspaper argues is that the media should be able to report the expert witness’s name–which it currently may not. Reporting the psychologist’s name publicly would mean that “any troubling patterns in past cases” could potentially come to light. Further, while the psychologist can no longer offer his services in relation to family law disputes, he can still offer his services to other clients. The Australian points out:
“These, too, are often sensitive issues and any thoughtful person does due diligence before choosing a psychologist to consult. Why should the obviously relevant issue of professional misconduct be kept hidden or dislocated from its facts? What is the point of such a finding if it cannot be explained and communicated to the public in its proper context?”
While this case does appear extreme, as we noted in our earlier blog on the case, the matter is not the only controversial one involving parents deeply unhappy with court experts. A group of NSW parents have also been able to refer a report writer to regulatory bodies to seek his deregistration.
We stress, though, that experts, including family report writers, are not decision-makers and merely present an argument. The Judge hearing a matter will take the family report evidence into consideration, together with the other evidence presented by each party and any individual experts they call to give evidence. The family report writer can also be cross-examined by each party’s lawyer to gain more understanding of how they came to their recommendations, or to discredit their findings in Court. Ultimately, the Judge hearing your matter will make the final decision as to parenting matters.
If you need assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.
