Re W and W : (Abuse allegations; Expert evidence] [2001] FamCA 216 (14 March 2001)

Re W and W : (Abuse allegations; Expert evidence] [2001] FamCA 216 (14 March 2001)

In Re W and W: (Abuse Allegations; Expert Evidence) [2001] Faro CA 216 the Full Court of the Family Court (constituted by Nicholson CJ, O'Ryan and Kay JJ) heard an appeal from the decision of Barlow J that: * three daughters of a marriage, T aged 12, S aged 10 and O aged 6, should reside with the husband; * the husband should have sole responsibility for the day-to-day and long-term decisions concerning the care, welfare and development of the children; and * the children should have contact with the wife each Sunday under supervision from a professional service. The wife appealed against all three orders. The Evidence at Trial The wife had been the major care-giver to the children since 1988 when the oldest, T, had been born. A number of physical and mental health issues were the subject of evidence, particularly in relation to the wife. Between 1991 and 1992 the wife suffered 'in acute form' from chronic fatigue syndrome and then had a recurrence in 1993 after a period of depression in 1992. T experienced a number of difficulties at school and was seen by a psychologist in 1994. The wife and the husband commenced to attend marriage guidance counselling and in 1997 the wife began to develop an interest in 'New Age' beliefs, including undertaking a course in reiki. The object of the course was to train participants in the transference of reiki of 'universal energy' by opening people's 'crown chakra'. She became interested in 'channelling' which she described in an affidavit as 'a process whereby a medium allows another entity to channel energy and to speak through the medium'. She became convinced she could communicate with spirits and past lives. She did not hear or converse with them but experienced interaction with them as an 'inner feeling'. She regarded her daughter T as a medium and informed her sister that T was 'able in the most natural way, to hear and to see and to have dialogue with the spirit world'. She acknowledged that in 1997 and 1998 she became 'absolutely immersed in spiritual matters'. She agreed in evidence that some of the beliefs that she held during this period could be described as 'bizarre' and that during the 1997-1998 period she was living in a fantasy world. In 1998 the wife stated in documentation for the Family Court: As a result of my own development, my eldest child [T] has started accessing deeper levels of knowledge and is sharing it with me. Although all but nine years of age, she is of great influence to me, and is a great teacher. She has by far had the most influence on my metaphysical interest. In the beginning of 1997, my eldest daughter told me that my mission in life is 'to learn to speak to my Inner-Self and teach the same to others' also, 'to show the world that in reality there is only One God'. I believe and trust (or rather KNOW) that this training will assist me to achieve these goals (at [24]). During the same year the husband permitted the wife to perform reiki or spiritual healing on him, although he did not believe in it, but said that he enjoyed it as 'somewhat relaxing'. In late 1998 further attempts were made by the husband to obtain family counselling. Around the same time the wife complained to T's teacher that T was being emotionally and sexually abused by the husband. The teacher drew the conversation to the attention of the principal who made a formal notification to the Department of Family and Children Services ('the Department'). A further allegation was made around the same time that the husband had exposed himself to T and S with an erect penis. Generally, the wife alleged that the husband had engaged in inappropriate sexualised behaviour. At one point she maintained the T had alleged to her that her father had touched her 'everywhere' and had wanted to accompany her into the shower. However, the wife left the children in the care of the husband while she attended a further course in relation to her new age beliefs. The husband departed the matrimonial home and consulted a Relationships Australia counsellor who then, of his own volition, made a notification to the Department after the husband made admissions of inappropriate behaviour with T. Toward the end of the year the wife maintained that T made detailed disclosures of her breasts being touched by her father and her vagina being digitally penetrated by him on many occasions over several years. When T was interviewed by officers of the Department at the end of 1998 she alleged that she had been abused by: * the husband; * the husband's parents; and * an uncle. She also alleged that the husband had abused her younger sister, S. Around the same time the wife was hospitalised for depression. The husband was charged with a number of criminal offences but T's evidence at his trial in the District Court of Western Australia was erratic, major discrepancies emerging between what she said in examination-in-chief and re-examination, on the one hand, and cross-examination, on the other hand. However, evidence was given to the Family Court that T was subjected to wide-ranging attacks during cross-examination that she found very distressing. The prosecution filed a nolle prosequi and the prosecution was terminated. Nicholson CJ and O'Ryan J concluded that the evidence of a support person for T supported the view that it was the nature of the cross-examination that produced a negative reaction from the child and not any consciousness on her part that she had been caught out in telling lies. We have no doubt that the giving of evidence against a father in proceedings such as this would constitute a traumatic experience for any child and the traumatic nature of the experience could only be exacerbated by a searching cross-examination (at [72]-[73]). The Expert Evidence at Trial Dr Lord, a court-appointed psychiatrist, provided a report to the court and also gave evidence. Dr Lord gave weight to the fact that there was a document on the Departmental file in which the husband had disclosed unusual, if not aberrant, sexual behaviours. He noted that the husband denied that he had sexually assaulted T but that T had made multiple allegations against him, albeit somewhat inconsistently, in the District Court prosecution of the husband. He gave substantial evidence about his interviews with T. He was able to establish limited rapport with T, especially when he spoke with her about issues of good and bad touching--'She could not be encouraged to talk about private parts. [T] made no disclosure of inappropriate touching of sexual assault. [T] did not appear to be distressed. Her attitude was of distance and detachment' (at [131]). He concluded that T seemed angry with both parents and behaved in his presence in defiant and challenging ways--'it was impossible to make any sense of the child's behaviour especially in the absence of any indication of apprehension, sadness of distress' (at [133]). He observed T in the presence of her father. She was reserved and sat next to him, interacting animatedly and apparently comfortably with him. Her conduct was similar to that of her younger sisters. Dr Lord concluded: Whilst [T] had every opportunity to confirm her previous disclosures as to sexual abuse as perpetrated by her father and other relatives, she chose not to do this. It is possible that the withdrawal of [T] into herself, at times, and her challenging and somewhat defiance (sic) stand at other times reflected an unwillingness to reconsider traumatic experiences. It is also possible, though, that the child's responses were consistent with those of an individual unwilling to acknowledge the discovery of fabrication. The possibility of fabrication may also assist understanding of the apparent anger directed by [T] towards mother and the enjoyment clearly demonstrated by the child in interactions with father. Nicholson CJ and O'Ryan J were not inclined to read much into the reactions of T to the interviews by Dr Lord. They observed that she had already been subjected to Departmental and police interviews, as well as a searching and unpleasant experience in the witness box--'With all respect to Dr Lord, we feel that his interviews at this stage bordered upon institutional abuse of the child insofar as they sought to investigate her allegations. He can hardly be criticised for this however as he had been appointed by the Court to do so' (at [140]). Dr Dixon, a psychiatrist, was called on behalf of the wife. He treated her in therapy and had not seen the husband or T. He was unable to identify a connection between the wife's New Age beliefs and T's allegations. He rejected as 'preposterous' that the children should be removed from their mother. Barlow J did not accord any significant weight to his evidence on the basis of the absence of professional detachment from his patient, particularly in light of changes he made to his report after consultation with the wife. Dr W, a New South Wales child psychiatrist, was called on behalf of the husband. Dr W expressed the view that there was a serious risk that any form of contact between the wife and the children due to her new age beliefs.

As to the evidence of Dr W, we are of the opinion that Dr W demonstrated bias and thus little, if any weight, should have been attached to his opinion. In our view, he stepped out of the role of an expert witness and assumed the role of advocate.

It follows in our view that the trial Judge’s decision must be set aside.

We are of the opinion that the case highlights the need for reform in the area of expert evidence. In this regard, we note that the previously cited article by Sperling J offers a number of recommendations which we see as applicable to the family law jurisdiction, such as:
• Promulgating a code of conduct for expert witnesses;
• Consideration of amending statutes to make breach of a duty of objectivity professional misconduct;
• Greater use of the power to refer out technical issues for determination by an expert referee; and
• Amendments to the Rules of Court in respect of matters such as an express power to limit expert evidence to that of a single expert selected by the parties or the Court in appropriate cases.
We think that there is considerable merit in these proposals. We note that some have been adopted by changes to the Rules of the Supreme Court of New South Wales (see Bill Madden “Changes to the role of the expert witness” (2000) 38 (5) Law Society Journal 50) and that the last one is also favoured by the Family Court of Australia’s Future Directions Committee Report which was published in July 2000 (see http://www.familycourt.gov.au/court/html/future_summary.html).