EXPERT REPORTS: THE GOOD, THE BAD AND THE UNHELPFUL 2012 Legal Aid NSW – Child Representation Conference, Coogee Justice Judy Ryan Key points of expert evidence • Ordinary people giving evidence can only give evidence about what they have sensed - seen, heard, touched, tasted and smelled. • Experts are different; they can say what things mean. They can give their opinions, even to the extent that the opinion is, if accepted, determinative of the issue in the case. • In the Family Court, there is usually one court appointed expert (eg psychiatrist, psychologist, social worker, in-house family consultant) to assess and report in addition (on occasion) to a person’s treating health professional. • Expert reports need to be written to educate the uninformed reader and expose the expert’s reasoning and factual premise. • Expert reports written for an equally expert reader almost invariably will not do that. Prerequisite for expert evidence • Relevance • Specialised knowledge – Idoport Proprietary Limited v National Australia Bank  NSWSC 123 • Specialised knowledge must be sufficient to be aware of trustworthy authorities and proper sources of information • The specialised knowledge must be based upon the person’s “training, study or experience” • The opinion must be “wholly or substantially” based on that specialised knowledge. Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Prerequisite for expert evidence (cont) • Single expert scheme. Part 15.5 FLR 2004 • Neutrality • Expert must not become partisan or an advocate. Brown & Pederson (1989) FLC 92-019 • Doing so undermines the veracity of their evidence. W and W: abuse allegations and expert evidence (2001) FLC 93085 • s 102A renders inadmissible evidence from a medical, psychiatric or psychological examination of a child in relation to abuse a child undertakes without leave. Separate Representative (appellant) and E and W (1993) 16 FamLR 485. The foundation of a good report • Carefully chosen expert • Clear and neutral letter of instruction • Provision of relevant and not irrelevant material • Adequate time • Compliance with expert rules • Clarification by questions Schedule 2 – FLVAA 2011 Repeal s 11F(1) and inserts new heading - Court may order parties to attend or arrange for child to attend appointments with a Family Consultant. Substitute: (1) A court exercising jurisdiction in proceedings under this Act may make either or both of the following kinds of order: (a) an order directing one or more parties to the proceedings to attend an appointment (or a series of appointments) with a family consultant; (b) an order directing one or more parties to the proceedings to arrange for a child to attend an appointment (or a series of appointments) with a family consultant. Note about seeking advice from a family consultant unchanged. Repeal s 11G(2). Substitute: (1A) If: (a) a person fails to comply with an order under section 11F that he or she arrange for a child to attend an appointment with a family consultant; or (b) a child fails to attend an appointment with a family consultant as arranged in compliance with an order under section 11F; the consultant must report the failure to the court. (2) On receiving a report under subsection (1) or (1A), the court may make any further orders it considers appropriate. Schedule 2 (cont’d) Subsection 13C(1) - minor amendment to note 2 which points out expanded s 11F in relation to attendance of a child. Amend s 62 - reports by family consultants: Omitting from s 62G(5) – orders in aid of a family report order - “that a party to proceedings, or the child, attend” and substituting “that one or more parties to the proceedings attend, or arrange for the child to attend.” Repealing s 62G(6) - failure to comply with a s 62G(6) order Substituting: (6) If: (a) a person fails to comply with an order or direction under subsection (5); or (b) a child fails to attend an appointment with a family consultant as arranged in compliance with an order or direction under subsection (5); the family consultant must report the failure to the court. Section 69ZU - opinions expressed by family consultants repealed. Case Study: Sheldon & Weir (No 3)  FamCA 1138 222. Counsel for the mother submitted the Court would be cautious in its acceptance of [Expert] opinion. Essentially, it was submitted [Expert] demonstrated a limited understanding of the facts, paid cursory attention to significant material, failed to consider or treat with appropriate seriousness the mother’s evidence about the father’s behaviour towards her and made assumptions which were not available. In relation to his methodology, [Expert] said he would be reluctant to diagnose a person as having a mental illness or personality disorder based on a consultation of 30 to 40 minutes duration. An exception to this would be if that person presented with a frank demonstration of disturbance. In his view, it could take months to determine whether a person had a personality disorder. In cross- examination, [Expert] said he interviewed the parties for about the same time, which was half of an afternoon each. This would have been slightly more than 40 minutes each, which according to him, would probably be insufficient to diagnose whether a person has a personality disorder. He did not deny that during his consultation with the mother, he took a telephone call on an unrelated matter and sent text messages. While I accept a busy clinician may need to interrupt a forensic interview to take an urgent telephone call, it is difficult to see why text messaging would be necessary or appropriate. Or, how at the same time, one could give adequate attention to the interviewee. Case Study: Sheldon & Weir (No 3) (cont) 223. [Expert] agreed he should have read the records he was given more thoroughly. He agreed the police records disclosed a possible theme of the father having difficulty with violence when he consumed alcohol. At best, it appeared, [Expert] had scanned the police records but failed to discern this theme when he finalised his report. [Expert] believed the father was estranged from his father. This was an assumption on his part and inconsistent with the material contained in the police records, which had been given to him. Those records showed the paternal grandfather present at the father’s home. He agreed the paternal grandparents’ mental health history was important and he had accepted the father’s statement there was no family history of psychiatric illness. [Expert] had records from G Hospital, which contained an assertion the paternal grandmother has a history of depression, is a victim of domestic violence with multiple mental health issues. Although some of these are contentious, the point validly made by counsel for the mother was that [Expert] did not notice them. In a similar vein, his opinion the father had a “reasonably stable childhood” was expressed in the context of him being aware the father said his father sexually abused his sister, did not function very well, was aggressive and there had been domestic violence. Although [Expert] referred to these matters, his opinion was strongly influenced by his uncritical acceptance of the father’s statement and a failure by him to analyse, other than in a trivial way, these aspects of the paternal family’s history. Case Study: Sheldon & Weir (No 3) (cont) 224. For reasons, which were unclear, [Expert], who did not confer with the mother’s brother, accepted the father’s version about the physical altercation between them on 20 December 2009. That is, that he accidently poked Z in the eye and his behaviour “was purely boisterous playfulness.” Because [Expert] did not adequately review the police and G Hospital records, inter alia, he accepted the father’s claim that “as a teenager he did have some small problems with alcohol on occasions” and his “only forensic history was when he was a young man; he was attacked by a gang of young men.” An attentive reading of those documents would have revealed these remarks were inaccurate. Case Study: Sheldon & Weir (No 3) (cont) 225. Finally, although [Expert] did not know or speak to them, he concluded the various psychologists consulted by the mother in relation to issues with the father, “…. were convinced by her believable manner and were perhaps seduced by her pleasant and convincing manner”. His point being these psychologists unwittingly and uncritically accepted the mother’s history in relation to her relationship with the father and failed to appreciate that she, “… was projecting the blame of the insoluble situation onto [the father]”. …. As to this matter the family consultant and Ms S, rejected this notion. I agree with the submission made by counsel for the mother on this matter, [Expert] opinion was unsafe. Case Study: Sheldon & Weir (No 3) (cont) 226. These matters are significant in a number of respects. Namely, in a case where the mother claimed to have been abused by the father and asserted he had twice been diagnosed with a narcissistic personality disorder, which diagnoses she believed, [Expert] did not critically examine important documents. Because [Expert] was given a large volume of material, one might be sympathetic to his failure to attentively read them all. However, the nature of the allegations made by the mother should have resulted in him at least paying close attention to police and hospital records. Had he done so, he may have given more attention to the issues raised by the mother and been alive to the real possibility there was more to the situation than her projecting blame onto the father. With respect to [Expert], because his investigative process was flawed his opinions warrant real caution. It is also my view, he did not give adequate consideration to the possibility the mother’s “anxiety and panic symptoms” had a real nexus to the difficulties she said she experienced in her relationship with the father and the ramifications for her emotional wellbeing if her relocation application was refused. Case Study: Sheldon & Weir (No 3) (cont) 227. The family consultant was an impressive witness. Her report was thorough and addressed the matters asked of her. She gave evidence in a balanced and considered fashion. During searching cross-examination, she demonstrated a sound understanding of the relevant facts. Although she was not challenged in any significant way in relation to the accuracy of her reports regarding her interviews and dealings with the people to whom she spoke and interviewed, I am satisfied she accurately reported upon her observations and discussions for the purpose of preparation of her report. Unless stated otherwise, I accept her evidence. Case Study: Sheldon & Weir (No 3) (cont) 228. Ms S gave evidence in the mother’s case. Ms S has a Bachelor of Arts majoring in Psychology, a Master of Arts majoring in Children and Adolescents and a Graduate Diploma in Psychology and Family Therapy. It was contended by the father the Court would be cautious about her evidence, particularly in relation to any opinion expressed about him. Central to this issue was the speed with which Ms S decided the father has a narcissistic personality disorder. Although there was an issue about whether a psychologist could diagnose a personality disorder, ultimately Ms S and [Expert] agreed this was within a psychologist’s domain. Thus, Ms S was qualified to express an opinion about this matter. Case Study: Sheldon & Weir (No 3) (cont) 229. Before Ms S met the father, she established a therapeutic relationship with the mother. Early in her assessment of the mother, she determined the mother did not have Post Natal Depression and decided she had been “experiencing emotional and psychological abuse” from the father of whom she was genuinely very afraid. Thus, when Ms S met the father she had an opinion about him and believed he too required therapeutic assistance. She and the father agreed their meeting did not go well. At par 39 of his affidavit the father recounted what he said took place. According to him, the session lasted “for not more than 20 minutes maximum”. If the words deposed comprised the entirety of their conversation, it would be surprising if it lasted more than two or three minutes. In the father’s letter of complaint about Ms S to the Psychologists Registration Board, he said he was with Ms S “for no more than 30 minutes maximum.” In this letter, he recited his conversation with Ms S, in terms identical to those contained in his affidavit. Case Study: Sheldon & Weir (No 3) (cont) 230. Ms S said she was with the father for about 45 minutes. She said the father became angry when she suggested he needed professional help. According to her, he berated her and told her she was useless. She denied she commenced the session by asking him if he was depressed and explained she had been interested to find out from him what the family situation was. This was to assist her to assess whether the information which the mother had given her was correct. On 1 April 2009, Ms S sent the mother a short report about her consultations with the parties. She concluded with the sentence: “In my opinion, [the father] suffers from a mental illness, narcissistic personality disorder (301.81), DSM-IV Diagnostic and Statistical Manual of Mental Disorders”. In her oral evidence, Ms S said her diagnosis should have been expressed as a “provisional diagnosis,” and agreed she was wrong to call a personality disorder a mental illness. In response to the father’s complaint to the Psychologists Registration Board, Ms S had been counselled. She accepted her opinion about the father referred to in her report had been an error of judgment. Case Study: Sheldon & Weir (No 3) (cont) 231. I agree with the father’s contention that Ms S’s opinion about whether he has a personality disorder is flawed. Obviously it is no trivial matter to elevate a provisional diagnosis to an unequivocal diagnosis. However, this does not mean Ms S was an inaccurate historian. I do not accept the father gave a complete account of his discussion with Ms S. There was more to the interview than he disclosed. There were also matters she recounted that resonated with the father’s later consultation with a psychiatrist at G Hospital. In relation to the details of their consultation, I prefer Ms S’s evidence. Case Study: Sheldon & Weir (No 3) (cont) 232. The mother did not challenge Ms S’s evidence in relation to their dealings. I am satisfied she accurately reported upon her consultations with the mother. In relation to her opinion about the mother, Ms S has had a longer therapeutic relationship with her than the father. This is an important point of distinction, which when combined with the mother’s acceptance of the accuracy of her evidence, makes it appropriate to distinguish between the acceptance and weight to be given to her evidence about the mother, as compared to her opinion in relation to the father. In relation to the mother, Ms S’s evidence about the mother perceived her situation, about whether she suffered post-natal depression and her general emotional and psychological wellbeing warrants reasonable weight. It is also significant the mother sought to address issues with Ms S prior to the breakdown of the parties’ marriage. This weighs significantly against any notion of recent invention.