The Weekend Australian article “In the Name of Innocents” (11-12 July 2015) refers to the role of expert witnesses, especially psychiatrists. The clear implication of the article is that some expert witnesses get it wrong, sometimes because of a refusal to accept allegations of sexual abuse against children.
The article highlights the actions of an unnamed psychiatrist in New South Wales who assessed a young girl Lucy in 2007. The article states that her father had begun raping Lucy in his bed when she went on Family Court ordered access visits to his house.
The article goes on to state that revelations about Lucy’s ordeal have raised questions about the Family Court’s heavy reliance on expert witnesses to determine the veracity of sexual abuse allegations.
I have paraphrased the article below.
Social workers, psychologists and psychiatrists are an integral part of the family law system, helping judges to decide what to do in the most diabolical cases. Some worry that too much faith is placed on their findings, particularly in cases involving bitterly contested sexual abuse allegations.
Former Family Law Council chairman Patrick Parkinson believes an enquiry is warranted in the way sexual abuse allegations are handled by the Family Court. “It’s not about condemning existing practices,” Parkinson says, “these are incredibly difficult issues and we need to find the best way of dealing with them. But there is an overreliance on a very small number of experts in each city.”
He says psychiatrist can be extremely helpful in cases where there may be mental illness but they are not necessarily the most qualified professionals to assess abuse allegations. “I think it would be a lot better to have child protection services with experience psychologists or social workers with expertise in this field or regular dealing with these cases who can give the court the benefit of their expertise,” he says.
One eminent Sydney psychiatrist Chris Rikard-Bell, recently told the ABC he believed about 90% of sexual abuse allegations made during a highly conflicted Family Court proceedings were false.
The claim has alarmed several who work in the family law system especially because Rikard-Bell says he has written up to 2000 medicolegal reports.
University of Sydney socio–legal research and policy Professor Judy Cashmore says the available studies suggest the level of false allegations is nowhere near 90% and probably closer to 10% to 15%. This is a view backed by another eminent child psychiatrist,Carolyn Quadrio.
“The real problem is that we don’t have any reliable information, so therefore we have to rely on what we know from overseas research,” Cashmore says. “But it certainly doesn’t support anything like 90%.”
A Family Court spokeswoman says the court “does not accept the suggestion that 90% of sexual abuse allegations in contested Family Court proceedings are false”.
“The statement comes from comments made by one expert witness about cases he sees and does not speak of the overall experience in cases before the court.” She says.
There were more than 5000 substantiated cases of child sexual abuse in Australia in 2013-2014 according to the Australian Institute of Health and Welfare.
Family law barrister Martin Bartfeld says he has been involved in cases that “would make your hair stand on end”.
“The fact of the matter is that there are people out there who have an almost religious belief that sexual abuse is a fantasy the children make up,” he says. “But the forensic evidence and the Royal Commission into child sexual abuse doesn’t bear that out.”
Cashmore says the difficulty is that many of the children involved in family law disputes are very young and it is hard to obtain from them a reliable account of what has happened. False allegations may not be malicious, but in a setting where all trust has broken down mothers can be misinterpret what may be innocent behaviours.
“It’s possible that a parent who already has no faith in the other party parent could misconstrue what has happened,” she says.
Once a child has been repeatedly questioned about suspected abuse, the truth can become even murkier.
Lucy, now 18 said that her abuse began when she was three years old, the court ordered supervised access visits but after several years they were not supervised and included a weekly overnight stay and half the school holidays. She described her father watching her in the bath, being made to look at adult pornography and sleeping in his bed. She claimed she was taken to a house where another man and her father took photographs of her and the other man’s children naked.
Her mother recalled her daughter returning from access visits with rashes between her legs and being diagnosed with multiple urinary tract infections. When she was eight years old she was given Child protection classes at school and subsequently told a school counsellor and the New South Wales Department of Community Services was informed. Her mother said she stopped the access visits immediately and asked the Family Court to award her sole parental responsibility although Lucy’s father vehemently denied the abuse. The Family Court asked for a family report to be prepared and the parties agreed to the Sydney-based psychiatrist doing this.
In his report he wrote “the girl was “very guarded” when she was observed with the father and that she “appeared a little reserved”. When Lucy spoke however, she managed to tell the psychiatrist that “she didn’t want to see her father anymore and that she didn’t want to go to contact”. The psychiatrist reported that the allegations “seemed rather extraordinary”. He said the mother appeared to have “allowed herself to accept ludicrous stories about the child being drugged, bound with duct tape and ejaculated over by the father and for the smell to be on her pyjamas for an extended period of time”.
The report apparently contained only fleeting references to the alleged violence perpetrated by the father against the mother.
Earlier, when Lucy with three, the family Court judge was so concerned about the fathers “abusive and controlling” behaviour, he had ruled that any contact between him and Lucy should be supervised.
That judgement, from April 2000, described the fathers history of drug use and violence, including an incident in which the father had attempted to choke the mother while she was driving, with Lucy in the car.
However the psychiatric report seven years later did not analyse the risk of violence and said the father had “attempted to become rehabilitated”. He recorded comments made about an incident involving the father killing Lucy’s cat. Rather than focusing on whether the father posted unacceptable risk to Lucy, the psychiatrist warned in his report of the risk of supervised access that may cause the father-daughter relationship to “deteriorate and eventually breakdown”.
He therefore told a court his recommendation was for weekly unsupervised access, which he believed would “quickly” restore the relationship between Lucy and her father and help it to grow.
The father prescribed counselling that Lucy’s mother “to help her manage her anxiety” but warned that if “further spurious allegations of sexual abuse arise”, the woman should be given a psychiatric assessment and that “the child be placed in residence with the father”.
The report was so damning that Lucy’s mother says she was advised by her lawyers not to go back to court for fear of losing custody of her daughter. The mother also said that the Department of Community Service investigation was closed for reasons that were not clear.
The authors of this article (who appear to have a propensity for neologisms) noted that the psychiatrist involved cannot be named because the Family Law Act prevents the naming of any witness even an independent expert. The law also makes it difficult to examine other cases in which the psychiatrist had been involved because names and reported judgements are “anonymised”. They later refer to Lucy saying that she had broken her silence when she discovered that the psychiatrist who “disbelieved” her was still in practice assessing cases for the courts.
The authors claim to have unearthed another recent case in which two young children were removed from their mother’s care on the strength of the report by the same psychiatrist. The report marked “for judges eyes alone”, recommended “an urgent change of residence for the children”. In it, the psychiatrist said he did not believe alleged sexual abuse by the father “on balance is likely to have occurred”, and that this was “more the anxiety of the mother which has been projected onto the children”. “I believe the only alternative now to the children to be placed with the father, I recommend that this happened immediately and without notice”. This was apparently done as a result of a court order.
However the actions of the judge were repealed. The full Family Court on appeal said the circumstances of the case had not justified such as drastic step without first hearing from the mother. There were also unresolved concerns about the risk of abuse of the children by the father”.
However, ultimately, after they sent the case back the hearing by different judge, the court found that an abuse allegations had not been substantiated and there was “no unacceptable risk to the children in the care of the father”. After an eight-day hearing Judge Rees made orders in March for the six year old girl and nine-year-old boy to live with their father. The evidence included the expert report and other testimony.
Former Family Court judge, and now Australian National University adjunct Prof Richard Chisholm says cases such as these are agonising for judges because the consequences are so tragic when the court gets it wrong. He says often the evidence is ambiguous and uncertain. “It is a terrible thing if a child was brave enough to disclose abuse is disbelieved and has to endure further abuse.” He says. “It is also a tragic outcome if an innocent person is wrongly treated as a child abuser.”
The head of the Law Council’s Family Law Section, Perth-based Lawyer Rick O’Brien says Judges in the Family Court and the Federal Circuit Court, which handles the bulk of family law cases, are “acutely aware that experts are only witnesses, no more, no less”. “It is the judge’s job to assess the risk based on all the evidence that before the court” he says. “The assumption that John judges simply go along with a single expert underestimate the ability of judges to examine all the evidence and in my experience is wrong.”
The article concluded by describing the distress experienced by Lucy and after the access was finally halted her ongoing symptoms including nightmares and flashbacks.
Commentary
The article has a legitimate point about the reliance of the Family Court on a small pool of expert witnesses however two cases in which they, by implication, indict the unnamed psychiatrist are not a strong foundation on which to build the case. It may well be that the comments with regard to the case involving Lucy were inappropriate when taken out of context but it appears that the opinion of the psychiatrist was upheld in the second case after a further court hearing.
In my experience many psychiatrists have felt that doing Family Court work is a professional obligation however most have abandoned this area of work. I have enormous admiration for those very few psychiatrists who continue to do this work as it is emotionally draining, enormously time-consuming, frustrating and the sort of articles with the underlying scepticism make this work even less inviting.
My own experience was that again and again I was confronted with mothers making accusations of sexual abuse against fathers and the children were caught in the middle.
The final straw for me was when I assessed a 10-year-old girl who was extremely voluble, friendly and who showed no signs of trauma and described relationship with her father in warm, affectionate terms. By contrast her mother was an extremely tight, rigid and cold woman who sexualised what seemed to me hugs and kisses on his daughter’s cheek. Her rage at her ex-husband was unbounded. However I felt sorry for her and unwisely told her that from my observations of her daughter and her own descriptions of the suspect behaviour I could not accept that this was evidence of inappropriate behaviour. She was very angry and upset.
The following day I received a phone call from her telling her that that very night her daughter told her that when her father kissed her he put his tongue in her mouth. This had never been mentioned before, the timing of it seemed incredible. I completed that report but have not written once since then.
I had seen too many situations where accusations were made against fathers, even grandparents. There is no doubt that such things do happen but some of these accusations involved such things as ritual abuse on altars with young babies involving the father, grandparents and other relatives with dramatic details of use of Satanic imagery and costumes and so forth.
The truth is that most sexual abuse with children is banal, opportunistic and depressing to hear. The effects on most children is devastating. The era of “False Memories” fortunately seems to be behind us, but this also had an effect on my wholehearted acceptance of claims of sexual abuse.
I abandoned any further Family Court assessments. Somewhat facetiously I felt that I much preferred working with criminals because at least I knew I was dealing with people who were honest and reliable! Of course the fact is that most people in the Family Court jurisdiction are struggling with terrible dilemmas and decisions and the use of expert such as child psychiatrists has been regarded as very beneficial by most Family Court judges.
It is noteworthy that the authors of the article make no attempt to ask why there is such a limited pool of experts. The article does make for sobering reading however. The authors should look at this website
The Australian Legislative Ethics Commission
to see its list of disgruntled complaints against a psychiatrists writing reports for Family Courts
The recent NSW regulations, in particular 11(1)a has had an effect on the amount of work in NSW and increases the fee schedule for expert witnesses. I have included a commentary from McInnes Wilson Lawyers
(1) Costs are not to be included in an assessment or award of damages in respect of any expert witness giving evidence, or providing a report, on behalf of the claimant in relation to a claims assessment or in court proceedings under the Act, except for costs in respect of:
(a) one medical expert in any specialty (my emphasis) unless there is a substantial issue as to a matter referred to in section 58 (1) (d) of the Act
(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as
“medical assessment matters” ):
(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
The Regulations retain the existing fee structure with respect to medical treatment and medico-legal services however, provide an increase on the maximum allowable fees.
With respect to medical treatment, Clause 19 states that an insurer is not required to pay beyond what is specified in the Australian Medical Association (‘AMA ’) List of Medical Services,
The maximum fees recoverable for medico-legal services are set out in Schedule 2. These are based on the Schedule of Suggested Fees for Medical xaminations and Reports which is determined by the Law society of NSW and the AMA. There is an increase in medico-legal fees to reflect current market rates. For example, a medico-legal report obtained from a specialist who has not previously treated the claimant and requires an examination has increased from $720 to $1,200. There is also an incentive for parties to obtain joint medico-legal reports by providing a higher recoverable fee (up to $1,600) in an attempt to reduce appointments for an injured claimant.
A further amendment contained within the Regulations is the inclusion of Clause 10(3) which states that the costs of obtaining an initial treating medical report cannot be claimed by an injured claimant’s practitioner if the insurer has already obtained a report and provided a copy to them. If, however, a request has been put in writing for a copy of the report, and the insurer has failed to provide same within a reasonable time, the cost of a second report can be claimed. This restriction does not extend to updated treating reports subsequent to the initial report.
Investigation Reports and Expert Witnesses
Clause 11 of the Regulations maintains the restriction on claiming costs related to expert witnesses and reports.
There is a presumption that only one medical expert in any specialty and two experts of any other kind can be included in an assessment or award of damages.
This is the executive summary from this, the first document of its type I have seen (click here to see the complete document). You can see why all governments put obstacles in the way of claimants, with specific wording eg the specific injury rather than a specific injury (Queensland and South Australia), different thresholds for psychiatric as opposed to physical injury (all states) and exclusions, in South Australia no compensation for non economic loss. Note that general clerks, police officers and school teachers accounted for the majority of ‘work pressure’ claims. i have also included sub-categories of ‘work stress’ for your information.
The mechanism of Mental stress is assigned to claims where an employee has experienced an injury or disease because of mental stress in the course of their employment. Mental stress includes sub-categories distinguished by the nature of the actions, exposures and events that might lead to disorders as specified. The sub categories are:
Concerns are still being expressed about this bill. The most recent from the Law Council of Australia in May 2015. The Council had a number of specific concerns to do with various matters. The matters most relevant to us are:
and
The Wrongs (Part VBA) Claims Regulations 2015 prescribe forms and other matters for the purpose of Part VBA and came into operation on 9 May 2015 and revoked the Wrongs (Part VBA Claims) Regulations 2005. The changes do not appear significant in essence eg psychiatric injury must not have arisen from physical injury, but in relation to certificates of assessment of degrees of impairment under sections 28LN and 28LNA of the Act, the 2015 Regulations prescribe Forms 1 and 2 of Schedule 1 . After examining the claimant, you must certify:
The 2015 Regulations are said to introduce the criteria that in relation to the degree of permanent impairment resulting from a psychiatric injury and symptoms the approved medical practitioner must certify that the psychiatric injury has not arisen as a consequence of, or secondary to, a physical injury. Any secondary psychiatric injury must be disregarded for the purposes of the Certificate of Assessment. I thought we were already doing that
The 2015 Regulations also prescribe Form 3 in Schedule 1 as the correct form to be used for a request to waive assessment of impairment; and Form 4 in Schedule 1 as the correct form to be used for providing the prescribed information. There were previously no forms provided in the 2005 Regulations. This is of little interest to us.
The 2015 Regulations add the following prescribed information for the purposes of section 28LZA of the Act to what was previously prescribed in the 2005 Regulations:
The 2015 Regulations also prescribe Form 5 in Schedule 1 for the correct form to be used for a Notice of Referral of Medical Question to Medical Panel. There was no such form provided in the 2005 Regulations. The medical question in Form 5 is to be stated as follows:
does the degree of impairment resulting from the psychiatric or psychological injury to the claimant alleged in the claim satisfy the threshold level