Single Expert Suspended From Practising: McElhiney v McElhiney

In parenting proceedings, the court will often require that a report be prepared on the dynamics between family members and any other persons that the children live with. This report requires that the parties and the children meet with a report writer to be interviewed and observed. This report is referred to as Family Report or a Single Expert Report and can be prepared by a Family Consultant at the court or by a private psychologist or a psychiatrist appointed and paid for by the parties. In the 2021 decision of McElhiney v McElhiney, the fitness of the person appointed as the single expert to write the Family Report was at issue.

Please note that the Family Law Rules 2004 are no longer in force. The Federal Circuit and Family Court (Family Law) Rules 2021 now apply to family law maters.

McElhiney v McElhiney

The 2021 decision of McElhiney v McElhiney related to parenting arrangements for two children born in 2014 and 2015, and alteration of property. Interim Orders were made on 12 August 2019 for the children to primarily live with the father and spend time each weekend with the mother. There were concerns as to the mother’s mental health and how that may impact her care of the children.

Pursuant to Chapter 15 of the Family Law Rules 2004, a single expert witness was jointly appointed by the parties to provide a Family Report. Unbeknownst to the parties, the single expert witness was subject to disciplinary proceedings brought by the Psychology Board of Australia under the Health Practitioner Regulation and National Law 2010 (WA). The proceedings for the disciplinary action were settled in late 2020. As a result of the proceedings, the woman was reprimanded, her registration was suspended for a period of 18 months, and various conditions were imposed on her subsequent registration, to take effect once the period of her suspension ended.

The single expert witness published an initial report for the parties on 1 June 2019.  For the purposes of preparing that report, she interviewed both parties at some length and both undertook personality assessment testing. In addition, the expert conducted observations of the children with each of the parties at their respective homes. Both children were too young to be interviewed.  The Family Report raised concerns as to the mother’s mental health as well as other relevant matters.

Application to have single expert replaced

The expert prepared a further report on 30 October 2020. The husband, upon being informed of the single expert’s disciplinary action, filed an application with the court to have the single expert excused and a new expert appointed.  The mother subsequently agreed with the discharge of the current single expert witness but did not agree with the new expert proposed by the husband’s proposal new expert on the basis that the current witness worked in the same practice as the proposed new expert. The husband also proposed that the new expert be provided with the report from the previous expert to assist with the preparation of the new report.

It is important to note that the expert is appointed by the court and not by the parties so it is a matter for the court to determine the appropriateness of an expert and much weight a report should be given when looking at the circumstances of the case as a whole and when all the evidence can be properly tested.

The decision as to the single expert’s fitness

In considering the matter, the judge did note that the expert witness has been disciplined for matters relating to ethical behaviour not the expert’s specialised knowledge, expertise or experience. However, the judge stated that:

“The fact of the suspension of Dr P’s registration would, of itself, in my view raise a reasonable apprehension as to the integrity of the decision-making process in circumstances where she continued in an appointment as the SEW (single expert witness) in the case.

It is in that context that I agree with the joint position of the parties (and, it might fairly be noted, Dr P) that it is inappropriate for Dr P’s appointment as SEW in the case to continue in the present circumstances, even if I am wrong in my conclusion as to the effect of the suspension of her registration as a psychologist.”

The court determined that the suspension of the current single expert witness precluded her from being appointed during the period of suspension and disqualified her from continuing any existing appointment during that period.  The court further concluded that the suspended expert’s reports could not be tendered into evidence despite the rules of evidence that apply in parenting proceedings.

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