MORTIMER and MORTIMER (DISCHARGE OF SINGLE EXPERT WITNESS)

[2023] FCWA 177

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

CITATION: MORTIMER and MORTIMER (DISCHARGE OF SINGLE EXPERT WITNESS) [2023] FCWA 177

CORAM: O'BRIEN J

HEARD: [omitted]

DELIVERED : [omitted]

FILE NO/S: [omitted]

BETWEEN: MS MORTIMER

Applicant

AND

MR MORTIMER

Respondent

Catchwords:

PARENTING - Application for discharge of Single Expert Witness - Where the application is based in part on the identification of the witness as the psychologist recently the subject of critical media reports - Where the Applicant contends that by virtue of the alleged conduct the subject of those reports is likely that the registration of the Single Expert Witness will be suspended - Where the Applicant submits that accordingly the appointment of the Single Expert Witness should be pre-emptively discharged - Discussion of relevant principles - Application dismissed.

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)
Health Practitioner Regulation National Law (WA) Act 2010 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Counsel A
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Lawyer B

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Law Firm B

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

Albert & Plowman [2020] FamCAFC 23

Bass and Bass (2008) FLC 93-366

Carpenter & Lunn (2008) FLC 93-377

Darley & Darley (No. 4) [2021] FamCAFC 54

Hall and Hall (1979) FLC 90-713

Ibrahim v Medical Board of Australia [2015] NSWCA 207

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Muldoon and Carlyle (2012) FLC 93-513

Nagel v Clay (2020) 60 Fam LR 550

Re P’s Bill of Costs (1982) FLC 91-255

Taylor v Taylor (1979) 143 CLR 1

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 [Mortimer and Mortimer] 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 Reason 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).

1The matter requiring determination is the Form 2 Application of [Ms Mortimer] (“the wife”) filed on 31 July 2023. She seeks the discharge of the appointed Single Expert Witness (“SEW”) in the case, [Psychologist A], the uplifting of Psychologist A’s existing report from the court file, the appointment of an unnamed new SEW, and consequential orders as to the progression of interim parenting disputes.

2The application is opposed by [Mr Mortimer] (“the husband”), who has filed a Form 2A Response and affidavit. The Independent Children’s Lawyer (“ICL”) did not file a response but opposes the application.

3The application is grounded on three separate, and quite distinct, premises.

4First, the wife articulates her disagreement with the content of Psychologist A’s report, and her complaints about her own dealings with Psychologist A, and the approach taken by her more generally.

5Second, the wife says that Psychologist A is the psychologist referred to in highly critical terms in recent media reporting and a podcast entitled “False Witness” referred to later in these reasons, and that she has been informed that Psychologist A is the subject of a referral and complaint to the Australian Health Practitioner Regulation Agency (“AHPRA”). On that basis, she says that she has lost confidence in Psychologist A and asserts that she is not a fit and proper person to maintain appointment by the Court as a SEW.

6Third, and primarily in the present case, based on those factual assertions, the wife contends that it is highly likely that as a result of the complaint to AHPRA Psychologist A will be suspended from practice as a psychologist, with the result that she will not be able to continue any appointment as a SEW, and the content of reports already prepared will not be admissible in evidence. She argues on that basis that Psychologist A’s appointment should be discharged now, to avoid possible circumstances where her appointment must be discharged at a point where to do so would delay the listing of a trial.

7While the wife would argue that the second premise of her application informs and substantiates the first, that argument is misconceived for reasons which follow. While the strength with which the wife holds her views about Psychologist A is reinforced by the suspicions articulated in the second premise, that premise does not presently inform any objective consideration of the validity or otherwise of those views.

Relevant background

8The parties were married [in] 2007 and separated [in] 2020. They have two daughters, [Child B] born [in] 2008 and [Child C] born [in] 2009.

9Proceedings were commenced by the wife by the filing of her Form 1 Initiating Application on 26 October 2020. She sought orders for the children to live with her and spend time with the husband as agreed, with supportive orders requiring the husband to undertake hair strand testing and provision for supervised time in the interim. She sought financial orders which are not relevant for present purposes. On her evidence, the children had lived with her after separation until they were removed from her care by the police [in] 2020, and she was served with Family Violence Restraining Orders (“FVRO’s”) for their protection and that of the husband.

10On [omitted], a magistrate made an interim order for the children to live with the husband and spend supervised time with the wife, with further orders requiring the husband to undertake hair strand testing.

11On 17 February 2021, the wife filed an Amended Form 1 Initiating Application seeking sole parental responsibility and that the children live with her and spend alternate weekends with the husband. On [omitted], a further interim order was made for the children to spend time with the wife each Sunday from 12 noon until 5.00 pm. The matter proceeded to an interim hearing on [omitted], and the magistrate reserved his decision. That decision was delivered on [omitted], when interim orders were made for the children to continue living with the husband, and to spend time with the wife each alternate weekend from 5.00 pm on Friday to 5.00 pm on Sunday. Orders were otherwise made to progress the matter towards trial.

12On [omitted], Psychologist A was appointed as the SEW at the joint request of the parties and the ICL. Her report was then prepared and filed with an affidavit on 17 July 2023. A further interim hearing had already been listed for [omitted]. The wife filed the application presently under consideration on 31 July 2023.

13At the hearing on [omitted], the magistrate referred that application and any response to it for hearing and determination by a judge, following which the file would be returned to him for ongoing management and determination of interim disputes. The husband was ordered to file and serve any Form 2A Response to the present application within 14 days and has done so. The ICL advised the Court that she did not intend to file a response.

14The decision by the magistrate to refer the present application for determination by a judge was informed by the nature of the second and third premises upon which the wife bases her application. The wife is not the only litigant with proceedings presently before the Court to suggest that Psychologist A is the psychologist referred to in the podcast, and to base an application for her discharge at least partially on that. In those circumstances, the magistrate appropriately took the view that questions arising from those premises should be argued before, and determined by, a judge.

15The hearing was listed for [omitted], the day after the husband’s response was due, so that the matter could be determined urgently. At the commencement of the hearing, counsel for the wife stated his assumption that I had listened to the podcast in question. I confirmed that I had not, as the wife had not chosen to put it into evidence. Counsel indicated that from the wife’s perspective it was essential that I do so before determining the application; neither the husband nor the ICL objected. The application was therefore adjourned for that purpose and I have, prior to today’s hearing, listened to the podcast.

The content of the podcast

16The podcast reports on the experience of an Eastern States family which engaged with a psychologist for family therapy, in circumstances where the wife alleged family violence on the part of the husband, and the teenage son of the parties was refusing to spend time with him. The parents in that case had separated when their son was very young and had apparently coparented for several years before that refusal commenced. While both had taken legal advice, neither had commenced proceedings.

17Those parents recorded audio of at least some of their interactions with the psychologist. The husband said that he had done so as early as his first meeting with the psychologist because he had heard a “concerning review” of her work. Excerpts from those audio recordings were played in the podcast. The psychologist was recorded describing the wife in disparaging terms in conversation with the husband. She was also recorded explaining to the husband that she proposed to take an unconventional and what he might find counterintuitive approach to therapy, in which she would have the wife and son air their grievances in his presence, make comments herself supporting their position and being highly critical of him, before endeavouring to elicit a more positive reaction from the child. Reference was made to the possibility of including in a report any such positive reaction. The psychologist was recorded making specific reference to arguments that could be raised by the husband in any subsequent court proceedings, and how that argument could be most persuasively formed. She acknowledged in a recording having spoken to the wife’s lawyer “really freely” before saying that she did not “expect that relationship to last very long.”

18Other comments recorded and aired in the podcast indicated, to put it as neutrally as possible, a high degree of personal and professional confidence on the part of the psychologist, and a very directive approach.

19The comments and statements which were recorded understandably raise concern. They are, however, very obviously taken in isolation and potentially subject to editing. They are presented without adequate and objective context which might reduce, or for that matter increase, such concern.

20The parents were reported as having made complaints to AHPRA, and cooperated in the production of the podcast, in the hope of “exposing the harmful conduct of this Family Court psychologist”. The reporter expressed a need to understand “how they ended up at the mercy of” the psychologist, suggesting that her therapeutic methods were “considered unconventional” but that the psychologist was “confident she can achieve miraculous results” and had made it known that she was a person of influence in the “Family Court process”.

21The husband in that case said that the eventual written report prepared by the psychologist was “overwhelmingly positive” for him, but that the process was damaging to the parents and the child. He said that the process had taken him “right to the edge” of potential suicide, and the wife said that she and their son were both made to feel fearful.

22The podcast referred to the psychologist in question having previously been cautioned by AHPRA about conducting therapeutic meetings in public places. The parents the subject of the podcast complained that they had been required to participate in therapy in public places, to their considerable embarrassment and that of their child.

The role of the Single Expert Witness

23The wife refers in her affidavit to Psychologist A’s report being “so incredibly important”. The podcast refers to the psychologist in question as being someone who “wields significant power” as a report writer for the Court, and whose “opinion is crucial” when the Court is making difficult decisions in parenting cases. Some of the comments made by the psychologist in the recorded conversations suggest a self‑perception by that person consistent with those descriptors, which counsel understandably points to as a matter of concern both in the present case and in any future consideration of her suitability for appointment as a SEW.

24Against that background, it is appropriate to briefly summarise the clear position as to the role of a SEW in any proceedings in this Court.

25The Family Court Rules 2021 (WA) (“the Rules”) regulate the use of expert evidence. The purpose of the relevant division of the Rules is to ensure that expert evidence is only adduced in relation to significant issues and where it is necessary to resolve or determine the case, to ensure that if practicable and without compromising the interests of justice expert evidence is given on an issue by a SEW, and to avoid unnecessary costs. Those rules had their genesis in reforms to the then Family Law Rules in 2004, which sought to address among other things a perception of partisanship and lack of objectivity in the evidence given by “adversarial” experts appointed individually by each party.

26The preferred use of SEW’s does not, however, elevate the role.

27There can be no suggestion that an SEW is anything more than just that – a witness. The power and responsibility to determine the dispute fall to the judge.[1] There is no “magic” in a single expert report, and while the views of a SEW will normally have weight with the court, the question of how much weight will depend on the individual case and the whole of the evidence.[2] Single experts are not witnesses of fact, except as to matters that they directly see or hear; rather, they express opinions by applying their expertise to the consideration of certain factual assumptions. Their opinions “can only ever be as reliable as the facts upon which they are premised”, and they will run the risk of “breach[ing] their remit if they are drawn into an expression of opinion about the underlying factual conflict”.[3]

[1] Hall and Hall (1979) FLC 90-713, 78,819; Muldoon and Carlyle (2012) FLC 93-513, [105]; Albert & Plowman [2020] FamCAFC 23.

[2] Hall and Hall (1979) FLC 90-713.

[3] Albert & Plowman [2020] FamCAFC 23.

28Once it is understood that the proper role of the SEW is as a witness, albeit one whose opinion evidence is admissible by virtue of expertise,[4] and not as a finder of fact let alone a decision-maker, the principles which apply to a consideration of any application to discharge the appointment of a SEW are clear.

The first premise upon which the wife’s application is based

[4] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [85].

29The wife is highly critical of Psychologist A. She says that in her interactions with her, she felt bullied and rushed, and that at no time did she feel that she was being listened to. She asserts that Psychologist A “both minimised the extensive family and domestic violence perpetrated against [her] by [the husband]” and on occasion “completely ignored/disregarded [her] experiences”. She sets out details of her discussions with Psychologist A during their interview, describing her as speaking “very quickly and abruptly” and being “very rude”, “aggressive” and “sarcastic”. She described herself as feeling humiliated and belittled by Psychologist A. She said that overall “it was a very awkward encounter and experience”, expressing her belief that she was not given “a reasonable opportunity to express what [she] felt or answer any of [Psychologist A’s] questions properly”.

30The concerns expressed, and what may be inferred to be an underlying proposition that Psychologist A has either demonstrated bias against the wife, or may be reasonably apprehended to be biased, are self-evidently untested. On that basis, and in the context of a proper understanding of the role of the SEW, they are matters appropriately taken up in cross examination at trial. They are not a proper basis for the discharge and replacement of the appointed SEW.[5] That was appropriately acknowledged by counsel for the wife at the hearing on [omitted].

The second premise upon which the wife’s application is based

[5] Nagel v Clay (2020) 60 Fam LR 550, [134]–[162]; Bass and Bass (2008) FLC 93-366, [23]–[39], [48]–[52]; Carpenter & Lunn (2008) FLC 93-377, [219]–[227]); Darley & Darley (No. 4) [2021] FamCAFC 54.

31The wife says that on [omitted], she received an email from [Ms D], who she “met through a mutual friend” and did not previously know. She offered no further explanation as to how she was put into contact with Ms D. I note that the email in question, while sent to the wife’s email address, is addressed “to whom it may concern”.

32At the hearing on [omitted], I queried that with counsel for the wife, noting that the timeline of the various emails annexed to the wife’s affidavit were on their face inconsistent with her admittedly loose description of the sequence of events. On instructions, counsel advised that the wife had been put in contact with Ms D via social media and had spoken to her on the telephone prior to receiving her email.

33The email identifies Ms D and her former husband as being the parties the subject of the “False Witness” podcast. It sets out her complaints about Psychologist A and confirms that both parents have filed complaints with AHPRA, which are proceeding.

34The wife says that she was “horrified” when she listened to the “False Witness” podcast and raised the issue with her lawyer. She says that her lawyer wrote to Psychologist A asking whether she was currently under any investigation with AHPRA, and if so whether “such investigation has led to any of your professional services being impacted by this, including any resignations from any professional boards or committees”.

35The wife’s affidavit goes on to say that Psychologist A did not respond to the email from her lawyer, nor to a follow-up email sent on 17 July 2023. She then says that she is “aware [Psychologist A] has ceased working in important roles and has other practitioners conducting her [reportable family therapy]”. For whatever reason, she does not say how she became so aware.

36The second premise of the wife’s application does no more than confirm that her concerns as articulated under the first premise have been reinforced and potentially increased by what she has been told by Ms D directly, the content of the podcast and media reporting, and the failure of [Psychologist A] to respond to the enquiry by her lawyer. While the allegations made by Ms D, and the podcast and media reporting remain untested, so too do the wife’s concerns.

37The second premise of the wife’s arguments does not alter the conclusion reached in relation to the first premise.

The third premise upon which the wife’s application is based

38At the hearing on [omitted], a recent email from AHPRA to Ms D was tendered into evidence by consent. That email confirmed that AHPRA’s investigation into her complaint is continuing, and that information is being compiled for disclosure to Psychologist A and for her response. The writer indicated that she anticipated that the Psychology Board of Australia “will consider the matter by the end of the year”.

39Counsel for the wife submitted that an objective consideration of the content of the podcast leads to a prima facie conclusion that Psychologist A will be suspended from practice as a psychologist.

40A psychologist whose registration is suspended cannot be appointed as a SEW, continue any existing appointment, or give evidence at trial during that suspension. While the scope of “practice” is not defined in the Health Practitioner Regulation National Law(WA)Act 2010(WA) (“the National Law”), nor directly in the APS Code of Ethics (2007), the term “psychological service” is broadly defined, consistently with the objectives and guiding principles of the National Law, such that the work required of a SEW psychologist in a parenting case, including giving evidence at trial, is clearly captured.[6]

[6] See, for example, albeit in a different context, Ibrahim v Medical Board of Australia [2015] NSWCA 207.

41Thus, it is argued that the possibility (or as the wife would contend, probability) of a SEW facing suspension during the currency of proceedings supports an argument for the pre-emptive discharge of the relevant appointment to avoid the likely delay and cost that might later arise. While to a degree the argument is circular, in that the present application for discharge of the appointment would itself lead to duplication of cost and the appointment of a replacement expert, the point is made that further funds might be spent by the parties in paying fees raised by Psychologist A in circumstances where those funds might effectively be thrown away if she is later suspended. The wife argues further that if, for example, Psychologist A is not discharged now and is subsequently suspended at a time close to trial, the trial would inevitably be delayed to the detriment of both parties and the children, and with an accompanying waste of scarce court resources to the detriment of other litigants.

42Counsel sought to address the obvious concern about an implied finding or assumption of “guilt” on untested evidence by drawing an analogy. He noted that it is not uncommon in the business world, or in the sporting world, for executives or professional athletes to be “stood down” without adverse finding while an investigation proceeds. The analogy, with respect, is not apt for a number of reasons.

43First, what is proposed is a definitive discharge of Psychologist A from her appointment as SEW. Second, executives are temporarily stood down from active, daily and ongoing responsibilities for decision-making and interaction with subordinate staff. Athletes are stood down from ongoing participation in competitive events, the result of which cannot be subsequently reversed. In contrast, the role of the SEW in a parenting case is to provide an initial report, answer questions if required to clarify that report pursuant to the Rules, and give evidence at trial. Psychologist A’s initial report has been provided, and the time within which the parties are entitled to administer clarifying questions has passed. All that remains is for her to give evidence at trial, and to prepare an updated report close to trial if that is considered appropriate. She has no ongoing, let alone day to day, role from which to be “stood down”.

44I have considered the content of the podcast carefully, as requested by the wife. I do not accept the submission that a prima facie conclusion can be drawn that Psychologist A will be suspended from practice as a psychologist as a result of the matters the subject of the podcast, and the complaints to AHPRA.

45There is limited and selective evidence as to the basis of the complaints the subject of the investigation. The audio recordings which form part of the podcast are themselves self-evidently selective and edited. While they fit the narrative of the complainants and of the presenter of the podcast, they are untested and unanswered; a proper investigation including review of the whole of the material recorded by the complainants may reinforce the veracity of the complaints or it may not. The audio recordings when placed in context may or may not invite entirely different conclusions.

46In my view, on the selective, unanswered, and untested evidence presented to this point, no conclusion can safely be drawn as to the likelihood or otherwise of Psychologist A being suspended from practice.

47Even were that not the case, the podcast and associated complaints refer to the alleged conduct of Psychologist A in her role as a family therapist and the manner in which she conducted that therapy. The role of a family therapist, even where the therapy is reportable, is fundamentally different from that of a SEW.

48That distinction is important, not least when it is understood that upon any finding of professional misconduct the relevant tribunal may limit areas of practice for the relevant practitioner, as a condition of their ongoing registration, as distinct from imposing a suspension.

49It may also fairly be noted that the mere fact that Ms D has been advised that it is anticipated that the Psychology Board of Australia “will consider the matter by the end of the year” only goes so far. Where a complaint is made and the Board forms a reasonable belief that a practitioner has behaved in a way that constitutes professional misconduct, the National Law contemplates referral of the matter to a responsible tribunal. It may reasonably be inferred that the complaint made by Ms D alleges professional misconduct on the part of Psychologist A. If the matter is referred by the Board to the relevant tribunal, and the allegation is defended, that process will take considerable time. It may or may not be concluded by the time these proceedings go to trial, if in fact a trial is necessary.

50Fundamentally, the complaint having been made there are a number of possible outcomes. The complaints may or may not be considered on preliminary assessment to have merit. If the complaints are considered to have merit, AHPRA may or may not conclude that professional standards have been breached such as to potentially merit a suspension of Psychologist A’s registration. Disciplinary proceedings in the relevant tribunal may or may not be commenced. If proceedings are commenced, a finding of professional misconduct may or may not be made. If a finding of professional misconduct is made, suspension is only one of the options available to the tribunal.

51The wife’s application will be dismissed.

Other matters

52As earlier noted, the wife is not the only litigant in current proceedings in this court seeking the discharge of existing appointments of Psychologist A as a SEW based in whole or in part on the content of the podcast, media reports, and an assertion that relevant investigations by AHPRA are underway. It is appropriate in those circumstances to make a number of further observations.

Evidence distinguished from assumptions and gossip

53First, the podcast and media reports do not identify Psychologist A. While I appreciate that in the present case it is said that Ms D has identified her, that may not be so in other cases. That must be borne in mind in any such cases, as for obvious reasons the Court should not entertain an application where the “identification” of Psychologist A is merely asserted to be “common knowledge”.

The proper role of the Court

54Secondly, the relevant role of the Court must be borne in mind. The role of the court is to exercise the jurisdiction conferred on it by legislation. While the Court has implied power to regulate and ensure the integrity of the litigation process in all cases before it,[7] that does not in any sense mean that part of its proper function is to entertain or determine complaints about the professional conduct generally of witnesses, even during the currency of relevant primary proceedings.

[7] See ReP’s Bill of Costs (1982) FLC 91-255; Taylor v Taylor (1979) 143 CLR 1 per Gibbs J.

55Evidence said to ground such a complaint may be considered, as here, in the narrow context of applications for the discharge of the appointment of a SEW or more properly in the context of challenges to the evidence of that witness at trial. That is readily distinguished from hearing and determining the complaint itself. That is so, even if the conduct about which complaint is made occurs exclusively in relation to the relevant proceedings in which the matter is raised; it is even more obviously so where, as in the present case and other cases before the court, reliance is placed on complaints made by other people.

56There is past experience in this Court of circumstances where the registration of an appointed SEW was suspended. There is also experience of circumstances where orders were made in the State Administrative Tribunal imposing as a condition of the ongoing registration of a psychologist that they not act as a SEW or court appointed expert in proceedings in this Court or what was then the Family Court of Australia. Both of those circumstances then lead to steps being taken in this Court which were responsive to the relevant disciplinary proceedings initiated by AHPRA having been concluded in the appropriate forum. The distinction between that process, and what is presently sought, is clear.

The proper role of the regulatory authorities

57The professional conduct of psychologists is regulated by the National Law. As the name suggests, the National Law has been adopted in all States. Part 7 of the National Law deals with the registration of “health practitioners” including psychologists. In the various disciplines covered by the National Law, National Boards are established; the Psychology Board of Australia is the relevant National Board in this case.

58The functions of National Boards include registering suitably qualified and competent persons in the relevant health profession and, if necessary, imposing conditions on their registration, deciding the requirements for registration, and the development of registration standards. Relevantly for present purposes, they also include oversight for the receipt assessment and investigation of notifications regarding registered health practitioners, establishing panels to conduct hearings, and referring matters to responsible tribunals.[8]

[8] Health Practitioner Regulation National Law (WA) Act 2010 (WA) (“The National Law”), s 35.

59AHPRA is established by Part 4 of the National Law. Its primary function is to provide assistance and support to the various National Boards. A National Board may delegate any of its functions to a committee (including a state board) or to AHPRA.[9]

[9] Ibid, s 36.

60The National Law sets out the processes by which notifications as to a concern about the professional conduct of a health practitioner may be made to AHPRA or the relevant board. Such notifications may relevantly include the expression of a concern that the practitioner’s professional conduct is, or may be, of a lesser standard than that which might reasonably be expected by the public or their professional peers, or that the knowledge, skill or judgment possessed, or care exercised by the practitioner is, or may be, below the standard reasonably expected.[10]

[10] Ibid, s 144.

61Where a complaint is made to AHPRA, that body follows its own investigative processes. Those processes include, where appropriate, the making of requests to this Court for access to the court file and/or other documents. Such requests are routinely accommodated via the Principal Registrar. It is not for this Court to initiate complaints other than in extraordinary circumstances, nor to proactively notify AHPRA of concerns raised by parties, thereby attaching the court’s imprimatur to untested complaints.

62It is also not for this Court to reach conclusions, or for that matter express views, as to the merit of untested allegations, or the alleged conduct of individuals purportedly demonstrated by the provision of selective information.

63The statement published by the Federal Circuit and Family Court of Australia on 19 June 2023 in response to the relevant media reports, notwithstanding the language used, does not indicate otherwise. While the “re-voiced recordings and issues disclosed” in the “False Witness” report were described as “very concerning”, and it was said that the “Courts are very alarmed at the alleged behaviour of the psychologist”, the statement when read in full context also acknowledged the untested nature of the allegations. The proper responsibility of the relevant “regulatory authority”, and the fact that the “Courts’ administration has no oversight of regulatory authority” over private practitioners were also noted. The thrust of the statement, and its apparent purpose, was to ensure that the public understood that the practitioner referred to in the media reports was not employed or engaged by the court, and that family consultants employed by the courts are appropriately experienced and qualified and operate under an appropriate governance framework.

Orders

1.The Form 2 Application of the Applicant wife, [MS MORTIMER], filed 31 July 2023 be and is hereby dismissed.

2.The file is to be referred to [the presiding Magistrate] in Chambers for consideration of the allocation of a further interim hearing or directions hearing as foreshadowed in paragraph 4 of the orders made on [omitted].

3.The Form 2A Response of the Respondent husband, [MR MORTIMER], stand adjourned to that hearing.

These reasons are the reasons for decision 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.

KM

Associate

29 AUGUST 2023