Family Court allows naming of banned family law psychologist Darryl Menaglio

Dr Darryl Menaglio. Picture: Colin Murty

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Nicola Berkovic

LEGAL AFFAIRS CORRESPONDENT
@NicBerko
 

Perth-based psychologist Darryl Menaglio accepted a professional misconduct finding almost two months ago in the West Australian State Administrative Tribunal for attributing psychopathic traits to a father without justification.
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Family Law Act provisions have prevented The Australian identifying him and revealing the background to the case until now, but in a court ruling on Monday night, Family Court of WA Chief Judge Gail Sutherland lifted the restrictions that usually apply to naming witnesses to family law proceedings.
She granted permission for The Australian to publish Dr Menag­lio’s identity, in “fair and accurate” reports, provided it indicated that the court’s judgments could be found on its website.
“I am satisfied there is a public interest in the proceedings, including, firstly, to appropriately ‘shine a light’ on Dr Menaglio’s misconduct as a single expert in the proceedings as found by the tribunal and, secondly, to facilitate greater public awareness and discussion of significant issues facing the family law system highlighted by this case, including issues surrounding the professional oversight of expert witnesses involved in family law proceedings,” she said.
It is believed to be the first time a judge has granted permission for a Family Court psychologist to be named.
The case
Dr Menaglio was appointed by the Family Court of WA in March 2012 to prepare a report on what care arrangements were in the interests of a then nine-year-old boy. He was the “single expert witness”, meaning his would be the only expert evidence.
He was paid about $25,000 for his report and evidence.
In his report, he attributed psychopathic traits to the boy’s ­father, known as “Dr Cape”, without clinical evidence, and conveyed that the boy needed protection from him.
Dr Menaglio accepted in the State Administrative Tribunal in October that he did this “in circumstances where he had insufficient data or clinical evidence to justify that attribution”.
He did not get another psychologist trained in the diagnostic tool for psychopathy to administer the test to the father before he attributed him with psychopathic traits.
The report had a significant impact on proceedings. The father’s unsupervised contact with his son ceased from that point.
Family Court of WA judge Jane Crisford ultimately gave permission for the mother to return to her home country of Germany with the boy.
By the time of her judgment, she said the relationship between the boy and his father had “completely fractured”.
Nothing could undo the effect the single expert report had already had on the court process, the mother and, in turn, the son, she said.
The judge highlighted emotional risks both parents posed to the boy, but found it would be in his best interests for the mother to be allowed to return with him to Germany. The mother would be better able to support herself there and it would be an end to the parents’ intense conflict.
The father lost all contact with his son, now 17, after the mother left Australia.
Dr Menaglio was banned by the State Administrative Tribunal in October from acting as a single expert witness in family law matters for at least a year and fined $20,000. The sanctions were imposed more than seven years after he wrote his report.
He continued to act as a single expert witness in numerous family law matters until 2017.
Oversight of court-appointed experts is a vexed issue. Earlier this year, the Australian Law Reform Commission recommended an accreditation system for family report writers because of concerns raised about the quality and integrity of reports, particularly those produced by private professionals, not employed by the court. University of Queensland law dean Patrick Parkinson has previously said section 121 of the Family Law Act, which bans the naming of any family law witnesses, is aimed at protecting the families who use the courts and should not apply to court-appointed experts because it stops journalists and academics from scrutinising their conduct.
Judge’s demand
The Australian was ordered to provide a draft article for the Family Court’s approval ahead of Chief Judge Sutherland’s ruling on Monday night.
In her judgment, Chief Judge Sutherland said The Australian had been “happy” to do so. However, The Australian agreed to do so only after the judge said the court could not “even consider” giving its consent to naming Dr Menaglio without seeing a draft.
The Australian had pointed out other cases in which news organisations had not been required to provide draft articles to the court but approval had still been provided to name a party.
“I’m not going to give a rubber stamp or a carte blanche authority when I don’t know what it is the court is being asked to approve,” Chief Judge Sutherland said.
This journalist, representing The Australian, replied: “I have written a draft which I could provide to the court but I’m very reluctant to do so because I would be loath to allow Dr Menaglio or the court to sort of try to amend that article or dictate what we can and can ’t say in an independent news article. But I would be very happy to provide it on the grounds that it sort of gives you a flavour of what we are seeking to publish.”
The Australian’s lawyers later argued that this newspaper was not required under the legislation to provide a draft article and that it risked placing the court in the role of censor.
It nevertheless agreed to comply with the judge’s order because it believed reporting on the case was in the public interest.
In her ruling, Chief Judge Sutherland said The Australian’s draft account of the proceedings, provided to the court was not fair or accurate because it was overly sympathetic to the father.
She said “significant doubts” had been raised about the authenticity of a joint statement made by three psychologists after the litigation ended — referred to by The Australian — which said the father was not “in any way psychopathic” and that they had “strongly dis­agreed” with Dr Menaglio’s report.
It’s unclear what those doubts were. Two of the psychologists who signed the statement have confirmed its authenticity and Dr Menaglio had confirmed at the hearing that he was aware of it and was “gobsmacked” by it.
Additional reporting: Victoria Laurie
The Family Court of WA’s judgments in the “Cape” case and its decision allowing Dr Menaglio to be named are available at www.familycourt.wa.gov.au