Freedom Law

“Unaccountable” – an article by the ABC

Unaccountable

In the family law system psychologists, psychiatrists and social workers can give evidence and impact cases, but a review has found no-one is keeping them in check.

Updated 
Published 

A Victorian psychologist who violated a woman’s privacy by giving her ex-husband her confidential assessment and doing therapy in a wine bar is among the powerful Family Court experts who are shielded from the fallout of misconduct complaints.

In another case, a teenage boy was granted a protection order against his father after a Family Court judge — who relied on a report by the same psychologist — gave the father access.

Meanwhile, a state medical watchdog revealed it has no legal power to investigate a Sydney psychiatrist accused of serial failures in his role with the court, even at a judge’s request.

Both of these experts regularly provide reports in family law proceedings.

The cases highlight what court insiders and legal experts say is the lack of proper scrutiny of private psychoanalysts — described by some parents as “Gods of the court” — because their opinion can affect family legal battles and custody rulings.

A long-awaited report into the Family Court by the Australian Law Reform Commission (ALRC) urged the Federal Government to tackle concerns about the quality of these court-appointed experts by introducing mandatory accreditation and lifting the veil of secrecy around them.

‘The court doesn’t know anything about it’

The Australian Health Practitioner Regulation Agency (AHPRA) last month decided to “caution” the Victorian psychologist after a 10-month investigation found she failed to meet professional standards.

In a letter seen by the ABC, AHPRA said the caution was “with regard to maintaining and protecting client privacy and confidentiality”.

But her former client *Kate, a successful businesswoman who could only file the complaint with AHPRA after her Family Court case ended, said the finding was not made public or shared with the court.

This meant the psychologist would not be held accountable for misconduct in her court-related role, Kate said.

“I think AHPRA isn’t really protecting the people who actually need it,” Kate said.

Kate’s AHPRA complaint was supported by her own treating psychologist.

AHPRA found the psychologist breached the woman’s privacy by running counselling sessions in public places including a bar, and with her children in restaurants and a bowling alley.

“Given the sensitive nature of the interactions between family members, the lack of privacy afforded in these public locations presented a scenario which resulted in your privacy was [sic] compromised,” AHPRA stated in a letter to Kate.

Kate said she was reduced to tears during what the psychologist described as a “debriefing” in a wine bar, prompting a stranger to come forward to comfort her.

“[The psychologist] showed no remorse. She wouldn’t believe the person who came up to me wasn’t someone I knew, and she kept on saying, ‘stop the crocodile tears’,” Kate said.

AHPRA told Kate it “did not accept that in circumstances where you were taken into a public bar in a state of distress this was adequate management of your privacy”.

The psychologist gave what AHPRA said was Kate’s “highly sensitive psychological assessment” to her ex-husband after learning she was under investigation.

That was despite the medical body telling the psychologist it was “not appropriate for you to make contact with” the ex-husband, Kate or their children.

“I was in tears, I was angry, I was upset,” Kate said.

“I felt like my whole privacy had been invaded.”

AHPRA’s censure of the psychologist followed her refusal to provide documents to its investigators.

The psychologist showed “little consideration to the obligations of a registered practitioner to the board’s investigation process and the rights of patients to complain,” it said.

But it found a caution was a “proportionate response [and] a deterrent”.

“While the way [the psychologist] practises the health profession is unsatisfactory, this deficiency does not affect her ability to continue to perform her duties as an approved supervisor,” it said.

An AHPRA spokeswoman said it made reprimands public but not cautions, which were “a warning to a practitioner about their conduct or the way they practise”.

She said it was legally restricted about what it could say publicly about taking this kind of action but had “a discretion to provide information about that action to certain entities”.

Kate said that left parents wanting.

“The court doesn’t know anything about it. I don’t trust the system anymore. I think the system is flawed,” Kate said.

A Family Court spokeswoman said expert witnesses were usually appointed with the consent of both parties.

“As with all evidence, the evidence of experts may or may not be relied upon in the courts’ determinative process,” she said.

“The appropriate means of challenging expert evidence is through the court process, [for example] by cross-examination.”

‘She can say anything in the witness box’

Andrea* said her distressed 13-year-old son would “smash his head on a brick wall” after attending appointments with the same family report writer during a long Family Court battle.

Andrea said her son wanted to stop the appointments because he was being threatened by the psychologist.

But she said the psychologist told her “well you know I’ve pulled kids out of cars … you should be able to get him there”.

“He was complaining to me, ‘she’s threatening me’ and I would say ‘no, you must be misunderstanding her, she means well’,” Andrea said.

“She made it very clear, she’s the one who tells the judge what she thinks should happen with your child.”

“They have absolute immunity. They can say anything and there is no consequence.”

She said she was too frightened to complain about the family report writer.

“She can say anything in the witness box and that becomes evidence,” Andrea said.

“With any complaint process, I do think the practitioner being complained about should not go into cross-examination if there is a live complaint afoot.”

Andrea said the psychologist gave evidence in their trial and the judge ordered her son to spend time alone with his father.

But the teenager then obtained a family violence intervention order against his father in a state magistrates court.

The ALRC recommended the Family Court move to the states and territories — the same jurisdiction as family violence and criminal courts.

The ABC contacted the psychologist for comment.

‘The commission does not have the power’

In the case of the Sydney psychiatrist, up to a dozen parents made complaints to the Health Care Complaints Commission (HCCC), accusing him of “placing the public at risk” with his Family Court reports.

In August last year HCCC commissioner Sue Dawson wrote to one of the parents stating the psychiatrist “did not have judicial immunity” and an investigation would be conducted.

But in a letter to one of the parents in April, the New South Wales medical watchdog changed its position and said it “did not have the power” to investigate.

“Please be assured that the commission took this matter seriously and undertook several lines of enquiries to assist its investigation, including consultation with court representatives and obtaining further legal advice,” HCCC executive director Tony Kofkin said.

“Whilst I am unable to provide you a copy of this advice, it is clear and definitive in its conclusion that the commission does not have the power … to investigate a complaint about the conduct of an expert witness. This includes even if a complaint were to be referred to the commission by a court.”

A HCCC spokesman said this was “because the delivery of advice to the court is not considered to be within the definition of a health service”.

He said the watchdog had raised the issue of its “jurisdictional constraints” with the ALRC.

The Sydney psychiatrist was a report writer in the matter of *James — a case the ABC has previously reported on — in which the Family Court gave custody to a father accused of sexual abuse.

Alison*, one of the HCCC complainants, claimed the psychiatrist’s reports followed a pattern of “minimising” allegations of family violence and abuse.

“In almost every one of these cases he talks about ‘if the spurious allegations continue or are not recanted the child should be removed’.”

“In some cases the children are just removed even without warning,” she said.

She said he repeatedly interviewed children alongside their alleged abusers, and applied “unscientific theory” to dismiss most abuse allegations as false.

“Sometimes he’s even overt enough to document the child’s disclosures that most normal people would think are incest or other forms of abuse, but then he just trivialises it.

“He mocks the disclosures and he seems to create facts by hypothesis.

“The making of the allegations is the problem, not the actual abuse itself.

“In almost every one of these cases he talks about ‘if the spurious allegations continue or are not recanted, the child should be removed’.

“In some cases the children are just removed even without warning. He insists that the child have unsupervised contact with the abuser, which of course leaves the child under the abuser’s control, and then he insists the child cannot get counselling, so there’s no help for the child.”

The ABC contacted the psychiatrist for comment.

What happens now?

The ALRC report in March found that psychiatrists and psychologists in private practice who provide family reports played a “crucial” role in legal cases.

But it found there was no effective way of holding them to account if they failed to meet professional guidelines set by the court.

“These standards are not binding or enforceable, and there is no formal accreditation or monitoring process for compliance in place,” the ALRC said.

The ALRC recommended the federal Attorney-General Department take charge of the accreditation scheme for private family report writers and publish “a publicly available list indicating the particular expertise of each”.

Attorney-General Christian Porter, through a spokesman, declined an interview request.

He did not answer specific questions about the ALRC call for the expert accreditation scheme.

The spokesman said Mr Porter was still considering the ALRC’s 60 recommendations and would make a full response, but would not say when.

Mr Porter has already proposed embedding state and territory child protection and family safety officials in the Family Court, and merging the court with the Federal Court.

*The ABC has changed the names and hidden the identity of the subjects as the Family Law Act 1975 requires us to do. Section 121 of the Act prohibits identification. According to an ALRC recommendation, “privacy provisions that restrict publication of family law proceedings to the public, currently contained in s 121 of the Family Law Act 1975, should be redrafted.”

Credits:

Reporting: Josh Robertson, the Specialist Reporting Team’s Emily Clarkand Heidi Davoren

Digital production: Heidi Davoren

Artwork: Tim Madden

Topics: courts-and-trialschild-abusecommunity-and-societyfamily-and-childrenfamily-lawaustralia