Understanding the role of Psychologists, Psychiatrists & Expert Witnesses in Family Law

Family Law proceedings can be an extremely stressful & difficult time for the parties involved and it is not unusual for parties to engage with a psychologist or counsellor for their mental health. Family violence is a worryingly prevalent factor in Australian Family Law proceedings, and it is recommended that anyone suffering from family violence should seek mental health support.

As part of Family law proceedings, it is not unusual for parties to have their or their child’s psychologist/psychiatrist appear at court and give evidence as to the effect family violence has had on them.

Can my psychologist give evidence in my family law proceedings?

Yes, they can. Your treating psychologist will be well placed to inform the court on your mental health and whether you have been improving. While you can have your treating psychologist give evidence, the court can also order the appointment of an expert witness to advise on a parties’ mental state.

If the court orders the appointment of a single expert witness, the witness will often be tasked with meeting with a party or parties and producing a single expert report. How single expert witnesses are engaged and what they can include in their report is set out in the Federal Circuit and Family Court of Australia (Family Law) Rules (FCFCOA Rules).

Eastling & Pariser

In the June 2024 matter of Eastling & Pariser in the FCFCOA, Ms Pariser’s treating psychiatrist appeared and gave evidence about her mental health and the beneficial effect that her moving to Queensland rather than remaining in Melbourne would have on her mental health. Ms Pariser had been the victim of family violence during her relationship with Mr Eastling and had suffered post-traumatic stress disorder as a result.

At final hearing, the court made Orders for Ms Pariser and her children to relocate to Queensland, as it would in the children’s best interests to live with her and because the children’s relationship with their father wouldn’t be impacted by the relocation as Ms Pariser would facilitate Mr Eastling’s time with the children.

However, Mr Eastling appealed the Court’s decision, arguing that the Judge had made three mistakes when they had decided the matter. According to Mr Eastling the Judge had:

·       Applied the wrong test when determining that it was in the children’s best interests to relocate with Ms Pariser;

·       Had made a mistake by admitting Ms Pariser’s psychiatrist’s evidence because the evidence was inadmissible under the FCFCOA Rules.

·       Not given Mr Eastling procedural fairness when deciding that Mr Eastling sought orders for the children to stay in Melbourne in retaliation to Ms Pariser seeking to relocate with them to Queensland.

In response to the Mr Eastling’s first argument, the court decided that there was no specific test to deal with a matter where one party wants to change where the children live and that the court was only required to make a decision that was in the best interest of the children.

In response to the Mr Eastling’s second argument, the court determined that the evidence of Ms Pariser’s psychiatrist was the opinion evidence of a treating professional, who’s professional relationship existed outside of the court proceedings, and that this was fundamentally different from the evidence of an expert witness who had only been engaged to provide evidence for the court proceedings.

Mr Eastling said that the court should not allow the psychologist to suggest the Orders the court should make, where there were rules in place in the FCFCOA Rules. The Court said that Ms Pariser’s psychiatrist had not offered an opinion about what orders would be in the best interests of the children but an opinion on the likely effects of staying in Melbourne or relocating to Queensland would have on Ms Pariser’s mental health, and both scenarios had been considered when the June 2024 orders were made.

In response to Mr Eastling’s third and final argument, the court found that the first judge had provided Mr Eastling with procedural fairness and determined that Mr Eastling’s desire to have the children live in Melbourne was retaliatory because Mr Eastling’s proposed parenting orders drastically changed when he learned Ms Pariser sought to relocate with the children.

As Mr Eastling’s appeal was wholly unsuccessful, Ms Pariser was able to apply to have Mr Eastling pay her legal fees and the court ordered Mr Eastling pay $16,000 to Ms Pariser for her legal costs.

Key takeaway

In family law proceedings, the opinion of a treating psychiatrist on the how potential changes or events may affect the mental health of their patient may not be subject to the rules governing expert witnesses because the relationship between a person and the psychiatrist/psychologist is fundamentally different from the relationship they will have with an expert witness.  An expert witness is engaged for the purpose of the family law proceedings while a treating psychologist/psychiatrist has a professional relationship with the individual that exists independent of the family law proceedings. Because of this difference in relationship, the rules that relate to expert evidence in the context of litigation do not apply to a treating psychologist/psychiatrist.

Voice Lawyers: Your Guide in Family Law Matters

This update is general in nature and is not legal advice. If you need help dealing with a parenting dispute or require assistance with a family law matter, at Voice Lawyers, we hear you. 

If you are experiencing or contemplating separation, we suggest you seek legal advice as early as you can, even if you do not intend to separate for a few months or even years. We offer a 90 minutes early separation strategy session Voice Lawyers — Divorce, Separation and Family Law to prepare and inform clients of the process. Every family’s situation is different, and advice tailored to your specific circumstances can assist you in achieving your best possible outcome. We can assist if you would like a second opinion.

We help people navigate the complexities of family law with confident, practical advice. You can contact us at office@voicelawyers.com or call 02 9261 1954 to book a consultation to speak with one of our lawyers.

By Kayte Lewis & Enda Byrne