By Dr Jennifer Neoh MAPS, Vincent Papaleo MAPS and Dr Simon Kennedy MAPS
APS Family Law and Psychology Interest Group

Psychologists involved in preparing assessments and reports for families involved in family law litigation face a variety of ethical, legal, practical and personal issues that appear to be peculiar to this branch of psychology. It seems that the majority of psychologists in health and welfare practice, and even many forensic psychologists, are ill-informed about both the personal and professional risks of this work. Those risks become clear upon examining the sheer number of complaints against the small number of psychologists who specialise in this area.

Psychologists who specialise in family law assessment need to have expertise in forensic assessment of families, a detailed knowledge of child development, particular skills in placing information in context, a knowledge of family law, and some understanding of the broader legal context. This work is conducted under the umbrella of responsibilities to the court, which govern professionals' roles and actions as specified in the Family Law Act 1975 and the Family Law Rules 2004. In addition, the work is governed by psychologists' professional standards of conduct, so we are simultaneously expected to behave professionally under the terms of two different regulatory regimes that are not always perfectly compatible. There is potential for confusion about our role when only part of these responsibilities is examined, such as when we are scrutinised about professional standards and our particular legal responsibilities are not taken into account.

The aim of this article is to broaden the understanding of forensic psychology in the Family Court context and to identify the inherent difficulties that present professional and personal risks for psychologists engaged in this work.

Problems of semantics

One of the primary problems in family law evaluation arises from the meaning implied when the families assessed are seen as ‘clients' or ‘patients', as this assumes an erroneous premise from the start. The families that are referred to us through the court system or through parties' legal representatives are primarily ‘litigants' in a court case, rather than clients or patients. Our role is defined and constrained by the legal requirements of an expert witness under the Family Law Act 1975 and/or the Family Law Rules 2004. In a very real sense, our client is the court rather than the family or any individual family member. Knowledge of the parameters of the role is vital both for the quality of work and for professional existence. The rules require that a declaration is made when undertaking each assessment that the court is the client, and the duty of the psychologist is to the court and not the family or individuals in the family.

The role of assessment is to assist the court by providing psychological information and opinion to be placed in the broader context of evidence testing to (hopefully) allow the court to make better informed decisions regarding the best interests of a child or children in specific cases.

Parents are often ignorant about the role played by psychologists in this arena and have great difficulty appreciating the notion of the court as our client. Plain language explanations are often made to little avail. When cautioned that the report writing process is not confidential, as plainly as "if you don't want me to know something don't tell me, because it may be important and I will need to put it in the report", it is not uncommon for a parent to then make disclosures and say something like "but I don't want that in the report".

In a similar way, parents caught up in the confusing protocols and archaic customs of a court system frequently see the psychologist as the face of that legal system.

Problems particular to parental separation

It is well documented that the population of litigants who reach the end stages of the family law process have particular qualities. It is a special person who is prepared to fight to the death for what is often a pyrrhic victory and who resists a more sensible resolution from the available alternatives.

Parental separation is most often a traumatic time for parents and children. This might be stating the obvious, but through all the research about the negative outcomes for children, often the emotional status and adjustment of the parents is obscured.

It is not the intention of this article to minimise the plethora of research on the effects of parental separation on the children, as this generally informs the primary basis of our work with these types of families. However, one aspect that becomes evident in working with these families is that some parents seem to go through a ‘separation psychosis', where their behaviour is irrational and they plumb the depths of human nature. Often parents find it difficult to recognise their own personalities and behaviours during and after their separation.

Psychologists who work with these families often see parents at their very worst and behaving in ways about which parents would normally be horrified. Sometimes this effect can account for, or at least partly explain, why some parents find the need to attribute all the blame and responsibility to the other parent and absolve themselves as a form of self protection. The psychologist is also an easy target that enables avoidance of self reflection and responsibility.

Problems with the legal context

The adversarial nature of family law in Australia is an anathema to the way in which most psychologists see themselves and the work they undertake.

The family law arena exposes psychologists and their work to intensive criticism. There is a myriad of people whose task is to take a very critical examination of the psychologist's work, opinions and logic, in addition to the litigants who are motivated to find fault with family reports and often disagree with the opinions expressed. The report and psychologist come under critical scrutiny and frequently cross-examination in a very formal process within court.

Outside of the court, the adversarial system creates motivations for lawyers and clients to embroil the psychologist in arguments in attempts to gain advantage or to discredit the psychologist. Long-winded letters from lawyers to argue their client's position that require a response, demands containing false premises about the psychologist's legal duties, and seemingly interminable arguments around making appointments for assessments, are all too common and easy traps for the unwary psychologist.

Problems of complaints by litigants to psychologist registration boards

Psychologists working in the family law area are reported to registration boards more frequently than any of their colleagues in other branches of psychology. The reasons for this phenomenon are not difficult to understand. By the time a court order is made requiring a family report, the parties have been involved in lengthy and often costly litigation, their positions have become all the more polarised, and they have failed in the many avenues provided to them for alternative dispute resolution. While the vast majority of families going through the process either resolve issues themselves or with the assistance of mediation services, the families referred for a family report usually reflect the most embedded, conflict ridden and litigious group.

Complaints made when a matter settles out of court - usually at the courtroom door arising from multiple stressors to reach agreement, as opposed to matters which go through the court system to eventually be heard at a trial or final hearing by a judicial officer - present psychologists with the most serious risks. In this situation, litigants may have some grievance about the outcomes or processes of the legal system and feel they have been unfairly treated, or simply want an opportunity to gain a different opinion or outcome. This situation leaves the single expert psychologist as a prime target for disgruntled litigants to vent their displeasure or anger. If a complaint is made to a registration board, by the time the matter is investigated the possibility for any complaint to be aired in court has evaporated and the best opportunity for its status being assessed in the proper context has been lost.

Registration boards and professional associations in Australia and internationally have traditionally ignored the particular contexts of these types of complaints and generally have had little understanding or knowledge about the ‘client' population or what the work entails. Recently, however, there has been a groundswell in reaction to these problems with some practical and innovative solutions being put forward. These include that both litigants should agree about deficits in any psychologist's professional practice before a complaint is made, or that the judicial officer involved in a matter as representing the client (i.e., the court) should determine whether there are questions about professional conduct to be answered.

Problems of safety

The litigants' focus on the psychologist report writer as the reason for the outcome of their case can create ethical tensions with profound implications for individual family members and for psychologists themselves. There are the ever-present physical risks to family members, and to psychologists and their families.

In litigious families where there has been a high degree of emotional and financial investment, often psychologists and their opinions become the focus of individuals' anger at the legal system and the outcomes. At times, this has created extreme safety issues. Although the numbers are not known, anecdotally the reports of threats of violence, physical and verbal intimidation, property damage and harassment of psychologists have, unfortunately, become expected consequences of this work.

Conclusions

Despite the difficulties involved in this specialty, psychologists who work in the family law field tend to be passionate advocates for children. The driving force is usually the satisfaction that is gained from assisting children through what may be the most difficult point in their lives, by providing an objective psychological overlay for the courts to use in determining their best interests. Psychologists specialising in family law assessment tend to be motivated by the possibility of these children having a greater degree of protection, and their families achieving better outcomes.

The principal author can be contacted on jennineoh1@bigpond.com.

References

Family Law Act 1975 (Cth).

Family Law Rules 2004 (Cth).

InPsych August 2010