I’m guessing that you’re here because you have a family law problem and are a bit shell-shocked at how your ex – the person you used to love, and may still have feelings for – has suddenly changed.
You are especially stunned at how she’s carrying on, how it is affecting your children (whom you have largely been cut off from), and you wonder how the Family Court system could possibly fail to see that they need their father, too.
Maybe you’ve had the mandatory mediation, or maybe that’s still on the books.
It’s a pretty safe bet that you’ve had a DVO (Domestic Violence Order) slapped on you, and if you haven’t, you’re afraid it’s just a matter of time. Sadly, a DVO has become pretty standard in divorce proceedings.
You may have already been shocked to realise how wide and all-encompassing the definition of domestic violence has become for men, and you are afraid that the last argument you had will fit the bill, because you raised your voice (even if it it was only to be heard above her shouting!).
So how can a Psychologist Help?
First of all it’s important to know what a psychologist is.
In Australia, a psychologist is someone who is registered with the national body AHPRA. In order to do that, the person has to have completed at least an Honours degree in Psychology, with some amount of training beyond those four years, whether it’s a Masters (a relatively new requirement), or two years of supervised practice under someone else who is registered (the older training model). However, that’s where it gets more complicated.
Most people think of a psychologist as someone who sits down with you and talks through your problems to help you to cope better with things.
This is true for one kind of psychologist, commonly referred to as a clinical or counselling psychologist. This is usually done with a Medicare referral, which your GP can give you, which helps fund the psychologist’s fees. This kind of psychologist is very useful especially if you have at some point lashed out at your partner or children. You will need to show that you are working on your anger issues, and receipts for treatment can help your cause.
Of course, just getting to the point where you go get some help requires honest self-examination of what you may have done. If you have a savvy lawyer, he or she will probably recommend that you do this of your own free will rather than wait to be ordered to do so as a condition of seeing your children. If not, you might want to ask your lawyer why this wasn’t suggested up front! But before you ask, you have to realise that it may not have been suggested because you minimised or left out something that you have done when explaining it to the lawyer. Again, that requires an honest look at yourself. Get it now, or get it under cross-examination by her lawyer. I think you can guess which will fly with the judge, and which won’t.
A Second Opinion
As part of the Family Law process, it is likely that a court-appointed psychiatrist will end up doing a report on you. A Family Consultant will also probably interview you, your ex, and your children to do a Family Report as well.
These can go badly, because time is limited, and neither the psychiatrist nor the report writer will be willing to listen to any facts that you present. Even if your ex has a history of drug problems, bipolar disorder, or some other problems that will affect the children, you can talk about facts all you want but it may go against you, simply because the court appointee just doesn’t like you for whatever reason.
Of course, not mentioning it can go against you too, because the report writer is uninformed. That’s because these reports are done before facts are determined by a judge, and facts are actually needed to establish a proper diagnosis if mental issues are at stake, as they so often are.
The cart is very much before the horse, and this means that the report can have little to do with anything other than the report writer’s and the psychiatrist’s opinion and sometimes, biases, completely uninformed by facts.
I am of the view that the reports should at least be subject to revision after facts are determined, but before a decision is reached. That way, if established facts show that your ex, not you, was the source of the domestic violence, this can be considered and reports (based on the assumption that you being male means you did it) can be revised. However, I strongly urge you not to raise this when you are being interviewed! Rather, have your legal team raise it (or DIY) as a way of dealing with the problem in the arguments phase.
Carts and horses aside, an assessment psychologist (who may or may not also provide treatment) can at the very least provide an independent second opinion on yourself. It is most unlikely that if the reports have gone your ex’s way that she will get a second opinion, even if you offer to pay for it. You need to handle a negative report, and that means being able to critique the reports. Lawyers can do some damage if they’re on top of your case, however, there are professional issues that a critique of the reports may raise that a lawyer won’t pick up. For instance, a psychiatrist who is dealing with your ex may miss a diagnosis mainly because he or she did a one-hour interview with no proper testing. A psychologist will know that clinical judgement is inferior to well-established psychological tests, and may be able to help with the attack from that angle. The late Robyn Dawes’ book House of Cards is a wonderful resource on that topic.
Digging Through The Dirt
Whether you have done something or not, you may well stand accused. Copping it and saying “fair enough” when you have done at least something is one thing (and essential to the process, so long as you do not get “giveupitis” and admit to the exaggerated versions of it).
Being accused when you haven’t done anything remotely resembling the allegation is quite another. You are angry and confused, and very anxious that the court might just rubber-stamp the allegation because you are male. You’ve probably heard plenty of stories and fear yet another miscarriage of justice, where false allegations lock you out of the kids’ lives for the year or two that it takes to clear your name – but then you lose out anyway because the status quo has been established. “It would be too disruptive to the kids to allow the father much access after so much time in the sole care of the mother.”
Yes, it’s a despicable tactic but far from unknown, and it’s far from guaranteed that you will clear your name, no matter how innocent you might be. As Scott Volkers said many years ago, “the mud sticks.”
The Role of Forensic Psychology
This is where a psychologist with a background in forensic matters can be a useful adjunct to a counselling or clinical psychologist.
While such a psychologist may not give you an anger management programme, he or she can go through the allegations and pick them apart, sometimes better than a lawyer can.
For example, if your ex tenders a diary as evidence that contains passages that she’s lifted out of a psychology textbook to make the “psychological damage” that you’ve supposedly caused look far worse, then a trained eye can pick that up, and possibly even find the textbook she’s been using. Don’t think for a second that it doesn’t happen, because that’s exactly the kind of thing I’ve run into in the past.
A psychologist experienced in court reports can also help you to understand how some of the allegations arose, and defend against them. For example, false allegations of sexual abuse often involve purported “repressed memories,” where someone with no memory of childhood trauma is led to fill in blanks in their memory with abuse that has been suggested to them through subtle leading questions. A psychologist with skills in this area can help identify whether certain forms of therapy (that are now frowned upon but have been rampant in the past) were likely to be at work. This has legal ramifications because certain methods that tamper with memory can make tendered evidence inadmissible.
A Case Study
In Queensland, for instance, in the mid-1990′s, former DPP Royce Miller handed down guidelines to police about hypnosis and related methods that make “memories” retrieved that way inadmissible in court. As far as I can tell this just stopped the police from asking about counselling history, so that they wouldn’t have to disbelieve the complainant (which creates a lot of negative media coverage).
In fact, in one “fake diary” case, the officer who failed to investigate properly told an angry judge that “we’re trained to believe the complainant.” This makes it trickier for defence lawyers who may know the law, but who may not readily pick up on tampered-with testimony, or who may not be willing to suspect the police of ethical breaches around investigation and disclosure.
I mention Scott Volkers’ case again, because the police have had a fear of negative publicity whenever they dismiss a case for lack of sound evidence. They are happy to let the prosecution sort it out, and you will be paying for it in the meantime. And as the DPP indicated to me the week before Volkers was charged, when I offered to help weed out repressed memory cases on a consulting basis, “we have no interest in this line of inquiry.” All the stereotypes about male violence, and the bogus statistics about sexual abuse, will be trotted out. Someone familiar with the actual evidence can go a long way in helping you defend against it. Expert opinion can help to clear the air, and knowing that you can get a lot of rubbish thrown out can help you in your coping with the process.
Experts in Family Law?
Unfortunately it can be an uphill battle getting outside expert opinion into family law. As Prof. Don Thomson, one of our most eminent forensic psychologists and barristers has said, “the adoption of the single expert in family law matters has the potential to seriously damage the case of one of the litigating parties, which in turn has serious and irreversible consequences for the children.”
Courts have long rested upon the principle that adversarial inquiry is the best way to establish the facts, and yet, in our Family Courts, the court seems to appoint its own adversaries while denying litigants the opportunity to critique adequately their input. Even so, where a negative report needs to be opposed, the rejection of expert adversarial testimony by a judge may not be complete (eg., Carlson & Fluvium  FamCA 32 [6 February 2012]) as there can be other ways to get part of it in.
Even if the expert is largely gagged by the court, there is nothing to stop the critique from being fed to the solicitor (or self-represented litigant), so that pointed questions that it might make can be raised about the report writer or other aspects of the evidence.
Another way in which a forensic psychologist can help is in dissecting an interview, which is particularly important when children have been spoken to by police, other psychologists or counsellors, or child protection staff. If things are thrown at you based on allegations made under questioning, the process by which the allegations came out can be subjected to scrutiny by someone versed in the procedures for interviewing that are known to produce either good – or dangerously bad – information.
Sometimes it is as simple as noting an ethical breach of which you may not be aware. For instance, children might have made allegations after the mother took them to a close relative who has some counselling qualifications (but not in child interviewing) to find out what you’ve done to them. If you start the interview with an axe to grind, the blade tends to sharpen itself. Here, the breach of ethics starts with the relative’s lack of impartiality and ethical breach of providing a professional service to family members. It’s hard to remain objective when your little niece or nephew is upset about something, and their mother is telling them that it’s because you’ve done something awful. That in itself weighs against the case and is grounds to exclude the interview. However, a good analysis will find evidence of tampering with the testimony in subsequent interviews, no matter how well-done.
Rest assured that that analysis will not be done by the police or the prosecution, and this is why it is critical to demand that any interview is recorded so the process itself can be subjected to scrutiny. Never forget that we live in a country where charges of voyeurism and offences involving driving a car with a minor stuffed in the boot were laid against a man blind since birth, and that these charges made it past both the police and the DPP, who would rather have a jury sort it out than cop the “failing the victim” negative publicity that comes with a rational decision about patently false allegations.
As another example, consider yourself. If you’ve been dragged out of your house at midnight and subjected to hours of questioning about abuse allegations, do you think you’d be able to give a coherent answer to the question “Have you stopped beating your children yet?” Catch-22 questions are not always recognised for the prosecutorial traps that they are, and you will regret giving either a ‘yes’ or a ‘no’ to the question. If you have done so, then a knowledgeable critique of the interview method is essential to your case.
Telling Your Story
Both clinical and forensic psychologists are aware of the factors that affect what is termed “narrative truth,” and the ways in which the sense-making part of our brains can lead us off the path of what is intuitively named “historical truth.”
Basically, memory is not like playing back a videotape. We actively reconstruct things when we remember them, and that means that what’s happening at the time has the power to change the memory, and the potential to change it permanently. That can include beliefs, wishes, and desires of the kind that form our sense of who we are. Donald Spence’s book Narrative Truth and Historical Truth: Meaning and Interpretation in Psychoanalysis is an excellent place to start for the legal or helping professional who wants to know more. If your law firm would benefit from a half-day workshop on the topic, please contact Dr. Gee directly.
On the one hand, it is true that we can readily believe things we want to believe, because they help make our story “make sense”. A woman who doesn’t believe she has anger issues will readily explain how everything is the victim’s fault, and interviews where this is facilitated instead of being picked up need careful dissection. Yet this doesn’t mean that we can’t get close to historical truth (what actually happened). There are interview techniques that can help weed out the parts of what we call “memories” that actually have nothing to do with real events, and that’s what you want in your affidavit.
Both psychologists and private investigators can interview you using sound techniques to help your tell your story. Each may approach it slightly differently, and private investigators (often retired police officers) will get it into the right form and probably be able to witness it for you directly. Either way, getting someone to help you tell your story coherently will save you a lot of headaches down the road, and if you’re paying a lawyer, being able to tell them the story clearly will probably save you on costs long-term, because in a sense there will be a map to the piles of dirt in which digging should be done.
Limitations to how a Psychologist can help
A psychologist of one type or another can help with a lot of problems, and clarify things for you, your lawyer, and ultimately the judge.
However, there are no guarantees in the legal system. Objections can be raised to exclude expert opinion and reports. Lawyers sometimes fail to follow instructions and don’t use a report or analysis for which you’ve paid. In my experience, lawyers are very nervous about suggesting that someone who claims to be a victim is not a victim, and can be reluctant to use reports that might shorten or even resolve the case by exposing the real source of the allegations.
There are a lot of ethical issues too. There is mandatory reporting to consider, where a psychologist might have to break the rather strict rules around confidentiality in the event of a possibility of harm to someone (including you) and in cases of suspected child abuse. If your cousin is a psychologist, there are ethical prohibitions on you getting anything other than a referral out of them. A psychologist who has been assisting you for some time may not be the best person to provide an assessment, and you may find you need to enlist a few specialists if it is a complex case.
A psychologist cannot provide a diagnosis of someone that they have not seen, and that includes your ex. It might be possible that your ex’s behaviour fits a particular mental illness, however, all a psychologist could do is advise you on how to get your lawyer to follow up on diagnostic criteria she may meet. This can allow a hole to be punched in a psychiatric report that missed that diagnosis, either by direct expert input, or that is disallowed, some expert tuition for your legal representative.
Of course, there is the expense as well. In Australia, Medicare will pay for treatment of the anxiety and depression that you are likely to experience, and any anger management issues you care to raise with your GP, up to 12 sessions in a year. It is likely that you will have to pay a gap fee on top of that, unless you are on a pension. The gap will depend on whether you see a general or clinical psychologist, and the going rate in your neighbourhood.
Apart from reports back to your GP (of which you can request copies from the GP, FOI, or subpoena) there will be a separate charge at a higher rate for privately-commissioned reports. Counselling and clinical psychologists can provide GP reports, but assessment and forensic psychological work will not be refunded under the scheme. Whether they are included in any costs that might be awarded against your ex if you win is up to the judge.
You of course need to weigh up the extent to which psychological factors are important in your case. If you are not self-represented, it’s an important discussion to have with your solicitor or barrister.
However, at the very least, the whole Family Law process is going to be one of the most stressful times in your life, and an initial consultation, just to establish a professional relationship that will be there when you feel that you’re not coping, can give you a safety net on which to fall back. If your car breaks down, you take it to a mechanic. If you break your arm playing footy, you go to the doctor.
If you feel your heart breaking as you wait through each small eternity in the legal system, as your children grow up without you, a psychologist can help you hold it together.
Author: Dr Travis Gee, B Psych (Hons), MA (Psych), PhD (Psych).
Dr Travis Gee is a senior psychologist with a wealth of experience in the areas of forensic psychology, family therapy, and counselling for men – particularly divorcing fathers. Dr Gee has worked with many individuals, families and children affected by separation issues, and given presentations on aspects of false allegations related to False Memory Syndrome, an area he specialised in whilst completing his PhD.
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*This article originally appeared on the Fathers 4 Equality website.
Dawes, Robyn. 1996. House of Cards. New York; Free Press.
Spence, Donald. 1982. Narrative Truth and Historical Truth: Meaning and Interpretation in Psychoanalysis. New York; WW Norton.