JENKINS and GROTHE (DISCHARGE OF SINGLE EXPERT WITNESS)

[2023] FCWA 160

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: JENKINS and GROTHE (DISCHARGE OF SINGLE EXPERT WITNESS) [2023] FCWA 160

CORAM: COHEN J

HEARD: 28 JULY 2023

DELIVERED : Ex tempore

FILE NO/S: 3899 of 2020

BETWEEN: MR JENKINS

Applicant

AND

MS GROTHE

Respondent

Catchwords:

PRACTICE AND PROCEDURE – Application to discharge Single Expert Witness – where mother has made various criticisms of Single Expert Witness since its publication – where ABC has since published an opinion article raising concerns about an unidentified psychologist working in the family law system – where mother believes the unidentified psychologist is the Single Expert Witness – where tenor of mother’s complaint has changed since the publication of the opinion article – where discharge application is opposed by the father and the Independent Children’s Lawyer – whether Court should restrict family law professionals from acting in circumstances where there is no evidence of regulatory complaint and restriction – consideration of interests of justice – where Court not satisfied any ground for discharge of the Single Expert Witness is satisfied – application dismissed

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Lawyer A
Respondent	:	Lawyer B
Independent Children's Lawyer	:	Lawyer C

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm B
Independent Children's Lawyer	:	Law Firm C

Case(s) referred to in decision(s):

[2022] FCWA 186

Bass and Bass (2008) FLC 93-366

Breckenridge and Kudrna [2019] FCWA 9

Marsh & Marsh [2011] FamCA 193

Neil & Zang [2021] FamCAFC 30

Payne & Payne [2009] FamCA 1005

Saller & Danell (No 2) [2017] FamCA 712

Sullivan & Tyler and Anor (2016) FLC 93-708

Swefford & Tarbell [2012] FamCAFC 80

Vismay & Shaw [2014] FamCAFC 124

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym JENKINS and GROTHE has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1 These proceedings are brought pursuant to Part VII of the Family Law Act 1975 (Cth) ("the Act").

2 The applicant father, [Mr Jenkins], and the respondent mother, [Ms Grothe], are unable to agree on parenting arrangements in the best interests of the children, [Child A] born [in] 2007 and [Child B] [in] 2010 (together, "the children").

3 I refer to the parties as father and mother in these Reasons to avoid any confusion which may arise by referring to them simply as the applicant and respondent. I mean no disrespect in doing so.

4 On 12 August 2021, orders were made upon the application of the father, appointing [Psychologist A] as Single Expert Witness in these proceedings. She filed her primary report on affidavit on 13 June 2022. The father put a series of clarifying questions to Psychologist A by letter dated 13 July 2022, and her responses were attached to a further affidavit filed 27 February 2023. The mother did not put any clarifying questions to Psychologist A.

5 The proceedings are listed for a 5-day trial to commence before me [in] August 2023. The proceedings are complex, with both parents raising significant concern about the emotional and psychological functioning of the children, in particular Child B. In addition to Psychologist A, four other psychologists have been subpoenaed to give evidence at the trial about the psychological functioning of the children.

6 I convened a status hearing in the proceedings [in] July 2023 to monitor readiness for trial. On that occasion, I made various orders in respect to the preparation of tender bundles (both agreed and not agreed), and for the bundles to be provided to Psychologist A electronically for her review prior to her attendance to give evidence at the trial. I made various injunctions restricting the further dissemination of that material, and Psychologist A was ordered to destroy the tender bundles at the conclusion of her evidence and file a written undertaking confirming compliance with that order.

7 Whilst the mother's solicitor had no objection to my making orders for the preparation of various tender bundles, she opposed the provision of the same to Psychologist A as the solicitor foreshadowed bringing an application for Psychologist A's discharge. Notwithstanding the mother's opposition, no application had been made for Psychologist A's discharge and she remained the court appointed Single Expert Witness. I formed the view it would be both time and cost efficient for Psychologist A to have an opportunity to review the tender bundles, which are likely to be largely comprised of subpoenaed documents, prior to the trial commencing in early August.

8 The proceedings come before the court for determination of the mother's form 2 application filed 14 July 2023 in which she seeks Psychologist A's discharge and the discharge of any orders made for the provision of documents to Psychologist A or to carry out an updated report ("the Discharge Application"). The application is opposed by the father and Independent Children's Lawyer ("ICL").

9 In support of their respective positions, both parties and the ICL have filed affidavits of themselves. I have carefully read and considered their material. Throughout these Reasons, I have not referred to all the evidence in these reasons because it is either unnecessary, nor practical, to do so.[1] If I have not referred to any specific evidence, or part of it, it should not be assumed that I have disregarded or overlooked it.

Brief background

[1] Vismay & Shaw [2014] FamCAFC 124 [45] (Thackray, Ainslie-Wallace and Murphy JJ).

10 The parties commenced their relationship [in or around] 1997 and were married [in] 2018.

11 Child A was born [in] 2007, and Child B was born [in] 2010.

12 The parties separated [in or around] 2018, and their divorce took effect [in] January 2021.

13 Between separation and early 2020, the children lived with the mother and spent time with the father on an ad hoc basis. In early 2019, the parties reached a more formalised agreement, with both children spending time with the father on alternate weekends, Friday to Monday, and with one child per week having dinner with the father on Wednesdays. The children spent a week of each school holidays with each parent.

14 The father has not spent time with Child A [since] February 2020, which the parties agree is when the father disclosed to the children he had re‑partnered.

15 The father last saw Child B [in] May 2020, a month or so after an incident involving the father drinking to excess and Child B running away from the father's home.

16 The reasons the children have continued to refuse to see the father are in dispute and will no doubt be explored significantly at trial. Broadly, the father asserts the mother unilaterally ceased contact and has alienated him from the children, while the mother deposes the children refused contact and she has over time come to support their clear and strongly held wishes.

17 The father commenced these proceedings on 27 May 2020. They have been actively litigated, with around 15 court events in the last three years.

18 The parties and the children have attended upon various family therapists, dispute resolution practitioners and psychologists. On review of the parties' trial material, it appears the family (in various configurations) have engaged with approximately 10 such professionals since separation. The mother deposes to the children attending upon seven different psychologists.

19 One such intervention was reportable family therapy with [Psychologist B] of [Psychological Practice A], which took place pursuant to consent orders pronounced on 13 July 2020. As I understand it, family therapy commenced in August 2020. In her report dated 9 March 2021, Psychologist B recorded:

(a)she met with the mother twice,[2] the father on four occasions and she saw the children separately a few times;[3]

(b)she referred Child A for psychological treatment on a non‑reportable basis, noting her concern Child A had taken on the role of a "paternal protector" of his mother and brother;[4]

(c)in respect to Child B, she reflected that, like Child A, he expressed anger towards his father and refused to see him. Psychologist B opined that Child B's presenting symptoms related to post‑traumatic stress disorder ("PTSD") arising from his experience of the incident at his father's home;[5]

(d)Psychologist B also referred Child B for individual counselling with [Psychologist C] of Psychological Practice A;[6] and

(e)both children were resistant to engaging with their father. The father was supportive of joint sessions, but the mother was not, citing the ongoing financial settlement dispute.[7]

[2] Psychologist B also briefly met with the mother at the start of one of Child A's sessions.

[3] Report, Psychologist B (9 March 2021) [6] ("Psychologist B Report").

[4] Ibid [60]–[61].

[5] Ibid [62].

[6] Ibid [61].

[7] Ibid [63].

20 As noted earlier, Psychologist A was appointed Single Expert Witness on 12 August 2021. I have set out earlier in these Reasons, the dates of filing her primary report and responses, and address the salient aspects of the same below at [37].

21 The proceedings were programmed to trial and assigned an expedited readiness hearing before the presiding Magistrate [in] 2023. Neither party had filed their trial affidavit material in compliance with the presiding Magistrate's orders, and the proceedings were programmed to a further readiness hearing [in] April 2023.

22 At the further readiness hearing, the matter was placed in the list of cases awaiting allocation of a trial date. In compliance with modified trial programming orders, the parties filed their trial material following the adjourned readiness hearing, the reasons for which are not apparent from the court file.

23 On 21 June 2023, the List Judge direct listed the proceedings for a trial before me to commence [in] August 2023.

24 On 5 April 2023, the mother filed an interlocutory application seeking orders:

(a)permitting her to taking the children on an overseas holiday;

(b)for the appointment of the ICL; and

(c)for the discretionary cross-examination ban to apply to the proceedings.

25 While the father ultimately did not oppose the travel application, he did propose more comprehensive terms for the same. In his amended form 2A response filed 21 June 2023, he sought:

(a)a reversal of care;

(b)the mother to ensure Child B's attendance upon Psychologist C;

(c)the parties to cease engagement of the children with [Psychologist D];

(b)the father to be at liberty to provide specified documents from the court file to various professionals and Psychologist A;

(c)Psychologist A to provide an updating report; and

(d)orders to facilitate him undertaking a Family Bridges suitability assessment.

26 [In] June 2023, the presiding Magistrate determined the competing applications and made various orders including, but not limited to, a discretionary cross-examination ban order, permitting the overseas travel with conditions, and requesting the appointment of a senior ICL. He also put in place an injunction restraining both parties from causing or permitting the children to attend upon one of the psychologists who has been subpoenaed to attend to give evidence at the trial. The balance of the application and response were dismissed.

27 [Lawyer C] was appointed ICL on 17 July 2023 after I requested Legal Aid WA to revisit, with urgency, their preliminary assessment of the request for the appointment of an ICL.

28 The father re-agitated the aspects of his application not dealt with by the presiding Magistrate before me in a further form 2 application in a case filed 3 July 2023. I determined the same at the status hearing [in] July 2023 and have already commented on the orders that I made on that occasion at [6].

29 On 14 July 2023, the mother filed the Discharge Application.

30 On 25 and 26 July 2023, the ICL and the father respectively filed their responses to the mother's Discharge Application wholly opposing the orders sought by her.

31 As it stands, Child A and Child B have remained resistant to communicating or spending time with their father since early 2020.

32 Child B has received therapeutic support from Psychologist C and [Psychologist E], who is a psychologist at his school. On the evidence before the court, I am unable to ascertain whether each therapist has an appropriate understanding of the other's specific involvement with Child B, what Child B's current psychological functioning is, nor do I understand what is in place to support Child B's mental health during school holiday periods, if anything. It would appear that each psychologist is relying on Child B's attendance upon the other as a means of managing his presenting mental health issues. Again, it is not clear to me what communications are taking place between the two psychologists, if at all.

33 Annexure "A" to the father's affidavit filed 21 June 2023 is an undated Safety Plan prepared by Child B's school, being [School A]. There is a sub-heading within the Safety Plan, titled "Significant Concerns." Listed under that sub-heading is the following:

•Suicidal ideation;

•Depressed mood;

•Thoughts of self-harm;

•Withdrawing from friends/family/class.

34 On 18 July 2023, the mother's solicitor wrote to Psychologist A advising her that "Justice Cohen SC confirmed that there was no issue with a letter being sent to you asking you to confirm unequivocally that the psychologist referred to as Dr Julie in that "article" was not yourself."[8] A review of the transcript from the hearing [in] July 2023,[9] sets out the relevant aspects of the exchange between myself and the solicitor who attended the hearing on behalf of the mother [in] July 2023. The salient aspects of that exchange are as follows:[10]

[8] Affidavit in Support of Form 2A Response, Father (filed 26 July 2023) 18–20 "Annexure B".

[9] Transcript (12 July 2023) 4–10.

[10] Ibid 4–6.

[LAWYER D]: If it can be determined – [Lawyer B] is seeking to write to [Psychologist A] to ask whether she is not Dr Julie who was referred to in the recent ABC reports.

HER HONOUR: All right. I'm going to stop you there. Whether or not [Psychologist A] is the person that has been reported on by the ABC – there have actually been two articles in recent times that the ABC have reported on, that have relevance to Family Court matters across Australia. Whether [Psychologist A] is, in fact, that person, at this point is speculation. Second, the question to be asked is this: whether or not AHPRA have taken any steps to restrict or suspend [Psychologist A].

In the absence of AHPRA doing that, [Psychologist A], like every family law professional, [Lawyer D], who has a board complaint made against them, has the right to a presumption of a response, and to be heard about that complaint, and to have that complaint determined. In the absence of that process taking place, to in effect bar someone, I would have thought, from undertaking their ordinary form of employment is a slippery slope to be going down, in the absence of AHPRA or, by way of example, the Legal Practice Board, having made the appropriate determination.

Now, [Psychologist A], at this point in time, is the single expert witness.

If [Lawyer B] wants to bring that application, he can bring it, but I would suggest that he listen carefully to my comments. I do not offer any opinion about the conduct and behaviour of any family law professional, lawyer or otherwise, that finds themselves in the news. [Psychologist A] can be robustly – and no doubt, knowing [Lawyer B], will be robustly cross-examined about these issues at the trial. But in the absence of an application being brought for her discharge, she's the single expert witness, and it's appropriate that she have all of the relevant documents available to her.

[LAWYER D]: I will pass those comments along to [Lawyer B]. One question that he did intend to put to her was the status of any complaint and whether any decision would be made prior to trial.

HER HONOUR: That seems to me to be a sensible and appropriate question to ask [Psychologist A].

…

The requirement of [Psychologist A] to notify this court or any other family law professional to notify this this court of any restrictions on their capacity to undertake work and in respect of the status of complaints one would have thought is their ethical obligation. … I would have thought that if she had any restrictions on her practicing certificate, she would have notified the Federal Circuit and Family Court of Australia and this court, and I'm not aware as to whether she has or not.

35 A further exchange then took place with counsel for the father, which is as follows:[11]

HER HONOUR: Just in respect of, firstly, my comments more generally about psychologist Julie and/or [Psychologist A], do you wish to be heard about that?

[LAWYER A]: Your Honour, I don't, other than to say that I've heard what your Honour what has to say, and I completely agree with your Honour. It's my view that the only question that could be realistically asked of [Psychologist A] or any expert at the moment is, are you aware if there are any issues that would impact upon your ability to exercise your role as single expert?

HER HONOUR: Yes. And if [Lawyer B] wants to put that, he's entitled to do that.

[11] Ibid 10.

36 The comment attributed to me in the mother's solicitor's letter to Psychologist A is:

(a)entirely without context noting the exchange that took place about this issue on that day;

(b)a misrepresentation of my position in respect to the issue; and

(c)most troubling to me, simply false.

Psychologist A's Primary Report and Response to Clarifications

37 The salient aspects of Psychologist A's primary report are as follows:

• At the time of her interview with him, Child A was 14-years old. Psychologist A found that he spoke articulately and impressed as conscientious and highly principled. At the same time, she said Child A seemed somewhat brittle in his emotions, mainly when talking about conflict in his family. She found that he showed passionate commitment to his sporting achievements, took pride in leadership roles at school, and took a conscientious approach to his studies. Overall, she considered him a very impressive young man.[12]

[12] SEW Primary Report, Psychologist A (filed 17 June 2022) 14 ("SEW Primary Report").

• Child A cited many reasons as to why he stopped seeing his father with boredom seemingly the primary motivator. Child A told Psychologist A that since ceasing time with his father, he had been "very happy ever since."[13] Child A reported a very positive view of his mother, and he clearly considered her supportive and proactive in making things happen.[14]

[13] Ibid 15–16.

[14] Ibid 17.

• Child B was 11-years-old at the time of the assessment. He referred to his father by his first name and reported feeling fearful of him because his father had got drunk and scared him. Psychologist A reported Child B saying that was not the real reason they were not seeing their father, instead suggesting it was because their father did not respect the children, as their father consistently put other people ahead of them.[15]

[15] Ibid 18.

• When Psychologist A asked Child B how he might feel about seeing his father, she recorded Child B dissolving into tears, stating he would "hate life" more than he already did. He described worrying about many things, including "court stuff" and expressed his experience at school being hard. Psychologist A also recorded Child B reporting he did not sleep well and that he described himself as unhappy, which she felt was understated.[16]

[16] Ibid 18.

• Child B described his relationship with his parents in more general ways. He was resoundingly negative about his father and said there was nothing he liked about him. In direct contrast, he liked "everything" about his mother and cited that she is kind and caring. Psychologist A noted Child B felt compelled to make a comparison between his parents, describing his mother as "just a better parent" than his father. She said Child B cried through these descriptions, and he impressed as incredibly sad. [17]

[17] Ibid 19.

• Psychologist A said that on either parent's account, the period between 2019 and 2020 appears to have been emotion-charged for both parents. The father introduced his partner to the children. There was conflict between the children and their father. On the father's account, there were conflicts between Child B and his mother, which included her agreeing to Child B living with his father. Both parents referred to a loud verbal argument in which both children were present. The mother claims Child B was traumatised by being left unsupervised while his father was unconscious and drunk. She alleged Child B returned, and indeed argued that he was not scared by the incident, but she has come to understand this was part of his PTSD symptoms.[18]

[18] Ibid 29.

• Psychologist A was clear that a determination by the Court on all the evidence is likely to assist in understanding the dynamics in this family. However, on the information available at that time, she said as follows:

(i)assessment of the mother found a woman friendly and warm in her social manner. She provided an open account but seemed to find it difficult to talk about the father. Psychologist A noted that she described trust issues, with her father having had an affair, which seemed consistent with perhaps an exaggerated response to the father re‑partnering after the separation. The mother described her mother as being overinvolved in her troubles with her father, and Psychologist A wondered at the mother's capacity for reflection and perspective on her separation from the father. Psychologist A formed the view that the mother's explanations, such as that Child A had never had a close relationship with his father but reacted badly to the idea that his father had re-partnered and was moving to have a "new family", did not seem logical. Similarly, Psychologist A considered the mother's suggestion that Child B had been traumatised by the incident in April, when Child B himself had told her he had not been scared and then saw his father after the incident, was unusual;[19]

[19] Ibid 29.

(ii)psychological assessment of the father was indicative of a man who had significant tragedy early in life. Psychologist A records the father describing unresolved grief from the death of his sister and father within a short space of time and a troubled ongoing relationship with his mother, stemming from his perception that she was emotionally cold and critical of him. While Psychologist A considered the father did not present as likely to meet criteria for any significant mental health problems, his background and presentation suggest someone who does not easily manage conflict with others and a lack of resilience when facing upsets in his interpersonal relationships (i.e. that his reaction might be stronger and more intense due to his past losses). The father provided Psychologist A an account of being distressed about the conflict with Child A in February 2020 and described his intoxication in April 2020 as an isolated incident that he deeply regrets. Psychologist A formed the view that his explanations have psychological coherency, and her overall impression was that the father was someone who is conflict‑avoidant and might struggle with situations with high emotional demand. When seen with both Child A, and then Child A and Child B together, his behaviour suggested to Psychologist A that he is at a loss about how to connect with the children, answer their accusations against him, and meaningfully describe his emotional attachment to them;[20]

[20] Ibid 30.

(iii)psychometric testing of the father suggested to Psychologist A that a diagnosis of alcohol abuse problems might be appropriate but appeared to emerge from chronic issues around difficulty with intimacy and expressing emotions. Concerningly, Psychologist A reports the father endorsed items suggesting that he has thoughts of self‑harm in a range that could be described as a "cry for help". Psychologist A was most concerned about his future behaviour if there is not an avenue for hope. In addition to the terrible prospects of self-harm for the father, Psychologist A stated, "the implications for the children should not be underestimated. Parents who self-harm or suicide in such circumstances leave children often with thoughts of guilt, remorse and future risks of depression, anxiety, alcohol and drug use;"[21]

[21] Ibid 30.

(iv)Psychologist A considered psychological assessment of Child A found a young man who suggests that he has rejected his relationship with his father because he was bored at his father's home. She considered his emotional response of extreme anger at this assessment was not in accord with his verbal explanations, and concluded that instead, he appeared aligned with his mother, and his emotional reaction amplified;[22]

[22] Ibid 30.

(v)psychological assessment of Child B found an overtly unhappy child. Psychologist A records Child B as having described fluctuating moods between sadness and anger, and she notes his presentation at the assessment was consistent with his descriptions. Child B alleged to Psychologist A that he has difficulties in social relationships because his friends experience him as moody. However, he also suggested to Psychologist A that therapy has not assisted him. Child B expressed overt preferences for the problem of his father to disappear completely. He suggested to Psychologist A that the previous two years of his life and unhappiness had been caused entirely by his father. Psychologist A considered the problem with Child B's reasoning being the fact he had not seen his father for two years, and the absence of his father in his life does not appear to have improved his mental health and well‑being. Child B's presentation suggested that removing his father from his life is not the way to resolve his complicated emotions;[23]

[23] Ibid 30.

(vi)Psychologist A's observations of the children with their father suggested they are inclined to verbally attack him and hold him responsible for all the ills in their life. Child A was fiercely protective of his mother and perceives the father as causing her problems. Psychologist A states, "Child B is just miserable." The father seemed to lack the skills to deal with the children's burning anger and attacks. Psychologist A noted the father tended to retreat as the conversation dried up, with no resolution for either child or the father. The observations indeed point to a need for effective family therapy;[24]

[24] Ibid 30.

(vii)Psychologist A considered both parties impressed as having insufficient capacity to resolve conflicts. While relatively low-key in their personality styles, Psychologist A sensed that they have never learned to settle differences between them satisfactorily;[25]

(viii)Psychologist A opined that the outlook for the children seemed bleak. She considered that although they were intelligent and articulate young men, the problems they have experienced through their parents' separation seem unlikely to endure into adulthood.[26] She further opined that the most likely effects appear to be a poor capacity to resolve conflict, inappropriate expressions of anger, enduring themes of abandonment and betrayal, poor self‑esteem, lack of trust in interpersonal relationships, depression, drug and alcohol abuse, and increased risk of self-harm. She pondered whether both children might reflect on their childhood and hold their parents responsible for involving them in their conflict and feelings for the other parent;[27]

(ix)Psychologist A reflected that the children's anger and distress in relation to their father should be resolved before discussions were had about their ongoing living arrangements, and further noted the children would be negatively impacted by any significant change in their care arrangements, including separation from their mother;[28] and

(x)her ultimate recommendation was for reportable family therapy with a highly experienced clinician. She went on to say that she had no knowledge of any local clinician in the area with the appropriate skills.[29]

[25] Ibid 31.

[26] In Psychologist A's report she used the word "unlikely", which I suspect is a typographical error when considering that paragraph in its entirety and in respect to the report holistically.

[27] SEW Primary Report 31.

[28] Ibid 33.

[29] Ibid 34.

38 In her addendum report in answer to questions posed by the father's solicitor, Psychologist A was asked to postulate about the children being at risk of self-harm. She said:

I consider the risk is chronic rather than acute. Children who are sad and disturbed sometimes consider self-harm as an escape to alleviate distress and unhappiness. The risk for the boys is very real and both parents should consider the effects their separation, disputes and behaviour has had on the children.[30]

[30] Clarifications to Primary Report, Psychologist A (filed 27 February 2023) 2.

39 It was her opinion that Child B's sadness would be alleviated through psychological support, noting it would be directed at addressing the cause of his sadness, distress and comfort, which as I understood her opinion, had its genesis in his relationship his father. Psychologist A again mooted the benefit of family therapy.

The mother's case

Mother's complaints prior to the Discharge Application

40 As noted earlier, the mother did not pose any clarifying questions to Psychologist A within the time frame permitted by r 292 of the Family Court Rules 2021 (WA) ("the Rules"), nor on my review of the file, did she seek an extension of time for the same. The mother was represented by Law Firm B at the time.

41 Since the filing of Psychologist A's primary report on 13 June 2022, the mother has, in various affidavits filed by her and through submissions by her counsel at hearings, made comments regarding the mother's views of Psychologist A's process and report. Notwithstanding this, and until recently, no application was filed to seek Psychologist A's discharge.

42 The mother is critical of Psychologist A:

(a)not wishing to delay the assessment process while Psychologist A was required to isolate due to COVID-19 restrictions applicable at the time. This particular criticism extends also to the father;[31]

[31] Affidavit in Support of Form 2 Application, Mother (filed 5 April 2023) [33] ("April 2023 Affidavit").

(b)not reaching out to speak to Psychologist C or Psychologist D to obtain their longer-term assessments of Child B and Child A;[32]

[32] Affidavit in Support of Form 2A Response, Mother (filed 19 October 2022) [9], [12], [21]–[22], [31] ("October 2022 Affidavit").

(c)representing the mother as having proposed family therapy, when the mother's only recollection of family therapy being addressed was Psychologist A herself indicating that she would be making such a recommendation only at the time the mother left the session;[33]

(d)not expressly raising specific issues with the mother which were included in the report, including the prospect of further family therapy, the father's re-partnering, and the things the mother has done to support the children's relationship with the father;[34]

(e)not putting the mother or children on notice of Psychologist A's intention for the children to meet with the father during the sessions, and then not listening to the children's views in respect of the same;[35]

(f)getting upset that she had not received payment, which the mother described as a clerical error;[36]

(g)seemingly making a significant typographic error and not having reviewed the same for accuracy;[37] and

(h)not following up with the children after meeting with the father to ensure their wellbeing.[38]

[33] Ibid [23]. See SEW Primary Report 2.

[34] October 2022 Affidavit [24]–[27].

[35] April 2023 Affidavit [33]–[36].

[36] Ibid [39].

[37] Ibid [40].

[38] Ibid [41].

43 On 19 June 2023, the mother filed a further affidavit whereby she criticises Psychologist A's recommendation that further family therapy be conducted, which was qualified by Psychologist A as potentially being harmful if not conducted by someone suitably qualified. The mother concludes with her view that "there is no solution to this suggestion by [Psychologist A]."[39] The mother did not support the "further engagement of [Psychologist A's] services" for the purpose of preparing an updating report prior to trial which, on the father's proposal, would have necessitated the transmission of all subpoena material to Psychologist A, including psychologists, doctors and therapists attended upon by the mother and children.[40]

[39] Affidavit for June 2023 Interim Hearing, Mother (filed 19 June 2023) [44] ("June 2023 Affidavit").

[40] Ibid [45].

44 The mother devotes an entire section of her trial affidavit to Psychologist A at [222]–[257]. Curiously however, at one point in her affidavit she agrees with and relies upon Psychologist A's opinion, which was a critique of the father as follows:

75.[Mr Jenkins] has shown a tendency to prioritise work and other people over those that he is closest to which creates a feeling of detachment and not being valued by him. [Psychologist A] made reference to [Mr Jenkins'] personality and tendency to coldness in his interactions when she completed her psychometric profile of him as part of the Expert Witness process. [Psychologist A] states: [Mr Jenkins'] results tend to indicate that his descriptions of the relationship problems with [Ms Grothe] might reflect his contributions to the difficulties rather than hers.

76.I suggest that it is this behaviour over the boys' childhoods and the year post our separation that led to the deterioration of the relationship that [Mr Jenkins] had with both [Child A] and [Child B] and that the events of his re-partnering and alcohol abuse that caused significant trauma to [Child B], were the final straws in an already fractured relationship, resulting in his children rejecting further time with him.

Mother's grounds for discharge set out in Discharge Application

45 The mother sets out her reasons for seeking Psychologist A's discharge in her affidavit filed in support of the Discharge Application. It is convenient to deal with them in two categories: issues raised in previous material and new issues raised in the Discharge Application.

46 In respect of the first category, which is also addressed above, the mother identifies the following:

(a)Psychologist A included in her report that the mother supported further family therapy, which the mother denies;[41]

(b)the way Psychologist A pressured the children to see their father, which included telling Child A the court would look more favourable on his opinion about not wanting to see the father if Child A saw the father that same day;

(c)two issues in respect of payment:

(i)Psychologist A told the mother she would delay the report if she did not receive pre-payment for the same; and

(ii)Psychologist A was short with the mother in the second session and did not attempt to interact with her, and only advised the mother at the end of the second session that there was an issue with payment, which caused the mother stress; and

(d)Psychologist A failed to contact the other therapists who had previous or ongoing involvement with the children.[42]

[41] Affidavit in Support of Form 2 Application, Mother (filed 14 July 2023) [3] ("Mother's Discharge Application").

[42] Ibid [21].

47 In respect of the second category, the mother identifies the following:

(a)Psychologist A spoke very disparagingly towards the mother in front of Child A, which she excluded from her report;[43]

[43] Ibid [4]–[6].

(b)Psychologist A failed to follow up with the children's therapists after the sessions to ensure the children's welfare;[44]

[44] Ibid [6].

(c)the lack of legitimate forensic purpose in Child A having to see the father.[45] In respect to this complaint, and with the greatest of respect to the mother, she is not a qualified clinical or forensic psychologist, and it is entirely within the remit of the Single Expert Witness to make an assessment as to the forensic value in interviewing the parties, the children, other professionals and how those sessions should be structured. As Child A is a young person subject of these proceedings, it would have been a significant deficiency in Psychologist A's assessment to have excluded him from the process, as Child A's attitude towards his father is highly relevant to the court's determination;

[45] Ibid [8].

(d)Psychologist A was abrasive, confrontational, and her report was filled with errors and "factually inaccurate regarding [their] conversations and what she said to [Child A] in particular as well as to [the mother]";[46]

[46] Ibid [27].

(e)Psychologist A attempted to manipulate the situation as she failed to make any meaningful inquiry which may have run contrary to her pre-judged views;[47]

(f)the mother's belief that Psychologist A is the person identified as "Dr Julie" in the opinion article published by the ABC in June 2023 ("the ABC Article").[48] which gave rise to the following concerns:

(i)the mother's understanding that "Dr Julie" has been reported to a relevant professional body by the interviewed parents;[49]

(ii)the "grave concern" that Psychologist A lacks objectivity or independence because the interviewed mother was of the view "Dr Julie" downplayed her evidence of family violence;[50]

(iii)Psychologist A failed to explore details of the impact of the father's drinking on the mother;[51] and

(iv)that the only therapy that Psychologist A proposes is for her (and only her) to engage in the "dog training" process performed by "Dr Julie".[52]

The father's case

[47] Ibid [35].

[48] Heidi Davoren, 'Lies, Threats and Manipulation – How Recordings Exposed a Rogue Expert Witness, in a Case Legal Practitioners Say is the Tip of the Iceberg' Australian Broadcasting Corporation: Background Briefing (19 June 2023) ("ABC Article").

[49] Mother's Discharge Affidavit [15].

[50] Ibid [16].

[51] Ibid [16].

[52] Ibid [17]–[20].

48 The father does not support the mother's application.

49 In his affidavit he raises concern as to why the mother's solicitor was not prepared to accept service on the mother's behalf in circumstances where he was communicating with his solicitor about the ABC Article and the issues in respect of Psychologist A. I pause to comment that is unhelpful to the Court, litigants, and other practitioners, when a solicitor and/or their client "cherry-picks" which aspect of a case the solicitor is instructed, particularly where the litigation is a single cause of action.[53] However, that issue is not relevant to the application to be determined by me today.

[53] By way of example, it is not uncommon for a solicitor to appear in child-related matters but not in financial matters. However, if one is instructed in the child-related proceedings, the solicitors' involvement should be in respect to all issues relevant to those proceedings and not aspects of it.

50 It is the father's belief the mother did inform Psychologist A she would support family therapy. He asserts the same was confirmed through her solicitor upon publication of Psychologist A's report.[54] The father asserts the mother then reneged on that commitment, which he says is consistent with Psychologist A's opinion as to the mother's attitude towards treatment that might challenge her thinking and behaviour.[55]

[54] Affidavit in Support of Form 2A, Father (filed 26 July 2023) [17] ("Father's Affidavit").

[55] Ibid [17].

51 The father further asserts that the mother failed to meet Psychologist A's clear payment terms, which are to be paid upfront. The father says Psychologist A issued her invoice on 24 February 2022 and was required to "chase the mother up” for payment a month later. According to the father, the mother's solicitor apologised to Psychologist A on 11 April 2022 and confirmed payment had been made.[56]

[56] Ibid [18].

52 The father professes to being baffled by various aspects of the mother's allegations, including in respect to Psychologist A having refused to undertake family therapy herself as she had determined it would be unethical for her to do so.[57]

[57] Ibid [19]–[20].

53 In response to the mother's allegation about Psychologist A's illness and a delay in respect to the publication of her report, the father says Psychologist A contracted the flu. According to him, Psychologist A met the parties in March and April 2022, with her report being filed two months later.[58] Given the delay this court often sees in the publication of expert reports, that Psychologist A's report was filed within a 3-month timeframe, whilst also unwell, is very much to her credit.

[58] Ibid [22].

54 In summary, notwithstanding the critical comments Psychologist A makes about him in her primary report, noting Psychologist A makes very clear that she holds both parents responsible for the impact on the children of being triangulated in the parents' conflict, the father raises no criticism of Psychologist A or her professionalism. He disputes the mother's assertion that Psychologist A has prejudged the matter; asserting her report is focused on ensuring the children receive the support and intervention that they need.[59]

[59] Ibid [24]–[25].

55 From the father's perspective, Psychologist A's report was prophetic. He says that Child B is currently displaying many of the concerns raised by Psychologist A.

The Independent Children's Lawyer's case

56 The ICL similarly opposes the mother's application. She has annexed to her affidavit information from the Australian Health Practitioner Regulation Agency ("AHRPA") website whereby it states it is updated daily to ensure it is accurate and reliable and it is the only reliable source of information about a practitioner's registration status.[60]

[60] Affidavit in Support of Form 2A, Independent Children's Lawyer (filed 25 July 2023) [12] ("ICL's Affidavit").

57 Relevantly, the ICL says she undertook a search of the AHPRA website on 25 July 2023, which indicates Psychologist A is presently registered without any conditions, undertakings and/or reprimands.[61]

Relevant law: discharge of Single Expert Witness

[61] Ibid [11].

58 In a recent decision by the Honourable Justice Tyson,[62] her Honour summarised the law in respect of the discharge of a Single Expert Witness. I include the same below and respectfully adopt her Honour's explanation of the law (footnotes as per original):

[62] [2022] FCWA 186.

42Part 15, Div 5 of the Rules regulates expert evidence in proceedings pursuant to the Act.

43The purpose of Div 5 is expressed in r 268 as follows:

The purpose of this Division is ––

(a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute; and

(b)to restrict expert evidence to that which is necessary to resolve or determine a case; and

(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness; and

(d)to avoid unnecessary costs arising from the appointment of more than 1 expert witness; and

(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.

44Rule 284 provides the duties a Single Expert Witness has to the Court, which include:

284.Expert witness's duty to court

…

(3)The expert witness has a duty to —

(a)give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness's knowledge and capability; and

…

(d)consider all material facts, including those that may detract from the expert witness's opinion; and

(e)tell the court —

(i)if a particular question or issue falls outside the expert witness's expertise; and

(ii)if the expert witness believes that the report prepared by the expert witness —

(I)is based on incomplete research or inaccurate or incomplete information; or

(II)is incomplete or may be inaccurate, for any reason; and

(f)produce a written report that complies with rules 287 and 288.

45The Rules do not provide any guidelines for the Court in considering an application to discharge a single expert.[63] It is a power that is assumed to exist, including at an appellate level,[64] and by a number of single instance judges.[65] A review of the authorities establish Courts have been reluctant to discharge a Single Expert Witness and, in the absence of exceptional circumstances, will not do so until other mechanisms available under the rules for testing and clarifying an expert's opinion are exercised.

[63] Marsh & Marsh [2011] FamCA 193, [49].

[64] For example, see Bass and Bass (2008) FLC 93-366; Payne & Payne [2009] FamCA 1005; Neil & Zang [2021] FamCAFC 30 at [28]–[29]; Sullivan & Tyler and Anor (2016) FLC 93-708 at [240] and [352]; Swefford & Tarbell [2012] FamCAFC 80 at [70]–[88], [98].

[65] For example, Saller & Danell (No 2) [2017] FamCA 712 (McClelland J (as His Honour then was)) Swefford & Tarbell (No 4) [2012] FamCA 888 (Watts J), which was upheld by the Full Court on appeal in Swefford & Tarbell [2013] FamCAFC 50.

…

46The Rules are subject to the overriding provisions contained in Part 1 of the Rules which include:

(a)The main purpose of the Rules is to ensure each case is resolved in a just and timely manner, at a cost to the parties and the Court that is reasonable in the circumstances of the case;[66]

[66] Family Court Rules 2021 (WA) r 5.

(b)The Court must apply the Rules to promote the main purpose and actively manage each case including by ensuring that parties and their lawyers comply with the Rules and consider whether the likely benefits of taking a step, justify the cost of that step;[67]

[67] Family Court Rules 2021 (WA) r 6.

(c)To achieve the main purpose the Court must apply the Rules in a manner that deals with each case fairly, justly and in a timely manner, that is proportionate to the issues in a case and their complexity, and the likely cost of the case, and that promotes the saving of costs.[68]

48Where the Court has the power to make orders to appoint a Single Expert Witness,[69] and the power to set aside or vary any order made in the exercise of a power under the Rules,[70] I am satisfied the Court has the power to discharge a Single Expert Witness.

Discussion

[68] Family Court Rules 2021 (WA) r 7.

[69] Family Court Rules 2021 (WA) rr 270, 271(c).

[70] Family Court Rules 2021 (WA) r 11.

59 These proceedings were programmed to trial and given an expedited readiness hearing. Having read both parties' documents, it is evident the children, in particular Child B, are experiencing distress. I am particularly troubled that Child B has been placed on a Safety Plan at school in the context of him allegedly attempting self-harm or expressing suicidal ideation. Both parties have very different views about the extent of his mental health issues, the genesis of the same and what intervention and support is needed to adequately assist him.

60 It is apparent to me that Child A and Child B need this trial to proceed as soon as possible so that some of these questions can be properly teased out, which will enable the court to gain a more nuanced appreciation of what is happening for them, and then canvass appropriately targeted interventions. Ideally, the trial may provide the greatest pressure release for the children, namely, an outcome which resolves the proceedings, as I have no doubt the litigation is an ongoing and significant source of stress for them, as well as their parents.

61 If I were to accede to the mother's application, it is very difficult to see how the trial could proceed. The court may have collateral evidence from other sources upon which it could draw, but it would be deprived of a neutral third party bringing that evidence together in a forensic context. None of the other professionals involved with the parents or the children have, to the best of my knowledge, any experience undertaking forensic assessment work in the Family Court, nor have they had access to collateral third party documents, and as such, are largely reliant on what the parties and the children have narrated. A therapeutic lens, no matter how skilled or neutral the therapist, is always distinctly different from a forensic one.

62 When I consider the mother's allegations and the evidence she has filed in support, I observe that she makes no real complaint that Psychologist A was biased or that there was an apprehension of bias on her part, although she may attempt to characterise certain of her complaints as such. Certainly, the complaints made by her in her earlier affidavit material would not meet the high bar necessary to support the discharge of an experienced Single Expert Witness. All of her earlier complaints could properly be put to Psychologist A through cross-examination at the trial, which would be the usual process for dealing with such grievances.

63 I also observe that notwithstanding her grievances with Psychologist A, which are set out in detail in her trial affidavit, the mother elected not to put any clarifying questions to Psychologist A at the time of publication of her primary report, nor did she bring an application for Psychologist A's discharge.

64 Further, in her trial affidavit, the mother relies on certain aspects of Psychologist A's report which are critical of the father. Litigants cannot have it both ways: one cannot simultaneously rely upon the critiques of the other party and seek to discharge the report in its entirety.

65 The complexion of the mother's complaints against Psychologist A only take on a more concerning tone following the publication of the ABC Article about "Dr Julie". I am left to wonder why, if the mother held these specific and more serious concerns about Psychologist A's conduct prior to her becoming aware of the ABC Article, they were not set out in her trial affidavit, which was filed on 28 April 2023, which as I have already observed, otherwise comprehensively set out her views of Psychologist A's method and report.

66 For the parties' benefit, I read the ABC Article and listened to the associated podcast at the time they were published, as I would any news reporting that relates to Family Court issues. I agree the report raises serious concern about the alleged conduct of the subject psychologist.[71] I do not in any way seek to minimise or trivialise those concerns. However, I offer the following comments about the ABC Article:

[71] I also have regard the statement published by the Federal Circuit and Family Court of Australia (Division 1 and Division 2) which records those courts being "alarmed" at the allege behaviour of the psychologist: Federal Circuit and Family Court of Australia (Division 1 and Division 2) 'Response to ABC Report – False Witness' (Media Statement, 19 June 2023).

67 First, I do not know whether the subject psychologist provided her consent to be recorded, which may give rise to an argument about the legality of the recording.

68 Second, it is apparent that only short soundbites from the recordings were used for the purpose of the ABC Article. Accordingly, I have no context for those aspects of the recordings that were included in the podcast and article, nor do I know whether the recordings were edited in any way for impact or effect.

69 Third, I do not know whether the subject psychologist has obtained legal advice about the ABC Article or any remedies that person may have available to them, if any. The answer to this question may impact on them commenting on the ABC Article in part or in its entirety.

70 Fourth, the subject psychologist was conducting family therapy outside of the Family Court process, which is distinctly different to the role Psychologist A has been appointed to undertake in these proceedings, in which she is the court appointed Single Expert Witness.[72] This appointment carries with it an obligation to discharge her responsibilities in a manner consistent with the Rules, the Australian Standards of Practice for Family Assessments and Reporting[73] together with her professional obligations arising pursuant to the Australian Psychological Society Code of Ethics.

[72] The parties involved in the ABC Article were engaged with the psychologist in a private capacity, and as I understand it, without the involvement of a Family Court.

[73] Family Court of Australia, Federal Circuit Court of Australia and Family Court of Western Australia, Australian Standards of Practice for Family Assessments and Reporting, February 2015.

71 To the best of my knowledge, and on the evidence before the court, the allegations made against the psychologist the subject of the ABC Article are currently allegations only. The subject psychologist may have a complaint or multiple complaints made against them with AHPRA. However, that person is entitled to due process. They have a right to respond to those complaints in a manner that is procedurally fair to the complainants but also to the psychologist themselves: procedural fairness is not the sole purview of one party.

72 It may be argued that a Family Court report writer holds a unique and powerful position within a Family Court case. This is true to an extent, but proceedings are not determined by Single Expert Witness reports alone.[74] As important as a Single Expert Witness might be to a proceedings, they may be no more or less important than parties having access to competent and experienced counsel, who are in many ways, equally as invaluable to the court.

[74] See Hall and Hall (1979) FLC 90-713, 78,819 (Evatt CJ, Asche SJ and Hogan J); Muldoon & Carlyle (2012) FLC 93-513 [105] (Bryant CJ, Finn and Strickland JJ). See generally Albert & Plowman [2020] FamCAFC 23 (Aldridge, Watts & Austin JJ).

73 The sad reality is that Family Court proceedings are often complex because we deal with highly emotive situations, often with traumatised parents and children, with complex family dynamics. When I was in practice and was involved with the Legal Practice Board through my appointment as Senior Counsel, I understood the Legal Practice Board received a large volume of complaints about family law professionals. The proper administration of justice may significantly be impacted in this court if solicitors or counsel were precluded from acting where they had unresolved complaints made about them at the Legal Practice Complaints Committee ("the LPCC").

74 This court does not require solicitors or counsel to disclose to this court when complaints are made about them to the LPCC nor in respect to the status of any such complaint; it is the outcome of said complaints, or where interim restrictions are put in place pending the finalisation of a complaint that are of significance.[75]

[75] The court may become aware of complaints inadvertently through the litigation process.

75 To be clear, I strongly believe people should have a right to make a complaint to a professional's regulatory body; it maintains accountability and should serve to enhance the public's confidence in the profession and the family law system more broadly.

76 However, it appears to me that it would be manifestly unjust to restrict a family law professional, be it a Single Expert Witness or a legal practitioner, who appears regularly before this court from working in their chosen profession in circumstances where any complaints made against them had not been finalised, particularly where this court does not know if that individual has been afforded procedural fairness or exhausted any legal remedies that may be available to them in respect to the complaint.

77 Based on the evidence provided by the ICL, there is no legal impediment to Psychologist A practicing as a psychologist. If that changes, I have every confidence that Psychologist A would notify this court promptly.

78 I do not consider it the role of this court to use these proceedings to unearth the identify of "Dr Julie". That issue is appropriately left to the relevant regulatory body, and should it come to it, the relevant disciplinary tribunal.

79 My job, as is the job of every other judicial officer in this court, is to focus on the specific proceedings before it, and deal with the facts and circumstances that are in issue in those proceedings. In this particular case, it is also to ensure an expeditious trial given the mental health concerns raised about the children.

80 I do not consider that the interests of justice will be compromised if I do not accede to the mother's application. Whilst the mother has, only after the publication of the ABC Article, raised more serious concerns about Psychologist A's conduct, there is no:

(a)suggestion that Psychologist A has failed to discharge her duties in accordance with the orders made by the court;

(b)dispute about her experience, or her expertise nor is there any claim, supported by the evidence currently before the court, that Psychologist A has acted in a biased manner or in a way which is reasonably likely to have created an apprehension of bias; and

(c)there is no assertion of any substantial body of opinion contrary to any opinions espoused by Psychologist A, or that a contrary opinion may be necessary for determining the issues in dispute, or that there may be matters not known to Psychologist A, which are necessary to determine the issues in dispute.

81Further, I do not consider the mother will be prejudiced if I do not make orders as sought by her. In fact, with the trial some few weeks away, I consider the parties and the children more likely to be adversely prejudiced if I were to make an order discharging Psychologist A, as that is likely to result in the trial being vacated so that the parties, the ICL and the court can consider whether a further Single Expert Witness should be appointed.

82I have not lost sight of the mother's complaints about Psychologist A, or how the ABC Article would have impacted any parent involved in Family Court proceedings where a Single Expert Witness has been appointed. However, all of the mother's allegations can be properly put to Psychologist A during cross-examination. I will then be in an informed position to make findings about Psychologist A's evidence, including if necessary, her conduct in these proceedings, which is my concern. The impact of those findings will self-evidently inform what weight I consider should be placed on her report and her evidence more broadly. Further, if this Court has concern about Psychologist A's conduct following the conclusion of the evidence, appropriate consequences may follow, which include allowing one or both parties to make a complaint to AHPRA themselves, or in fact, making such a referral itself.[76]

[76] See Breckenridge and Kudrna [2019] FCWA 9 [65]–[68] (Sutherland J). The Court noted its intention to refer a professional involved in the proceedings to AHPRA.

Conclusion

83Having carefully considered the evidence, for the reasons set out above, I am not persuaded to exercise my discretion to discharge Psychologist A. Accordingly, I intend to make an order dismissing the mother's form 2 application filed 14 July 2023 and the form 2A responses filed by the father and ICL.

84I accept the cost incurred by the father and the ICL in responding to the application. Given the proximity to trial, I propose to adjourn that issue to the trial. I would prefer to deal with any costs applications made by the parties globally at the conclusion of the trial.

85Given my comments about the mother's solicitor's letter to Psychologist A dated 18 July 2023, I also consider it necessary that Psychologist A be provided with a copy of these Reasons at the conclusion of her evidence.

These reasons are the reasons for decision I delivered on [omitted], edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

MG

Associate

[OMITTED]