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Appendix E

PN 16 Practice note – specialist report writers

1. Background

1.1 In 1999, the Principal Family Court Judge and the Department for Courts established a joint working party with representatives from the Department for Courts, the New Zealand Psychological Society, the New Zealand College of Clinical Psychologists and the Judiciary to develop the requirements for appointment of specialist report writers.

1.2 The terms of this Practice Note have been settled in consultation with the Department for Courts, the New Zealand Psychological Society and the New Zealand College of Clinical Psychologists. It sets out the requirements and recommended procedures agreed for the appointment of Specialist Report Writers to the Family Court.

1.3 This Practice Note supersedes the previous Practice Note: Guidelines on Specialist Reports for the Family Court issued by the Principal Family Court Judge, Judge Mahony on 26 June 1995.

1.4 The following practice notes have been incorporated into this Practice Note:

– Protocol with the New Zealand Psychologists Board dealing with complaints against Psychologists, issued 11 February 1996, subsequently extended to the Health and Disability Commissioner.

– Complaints to the New Zealand Psychological Society against a member of the Society arising out of Family Court Proceedings, issued 11 February 1996.

2. Introduction and commencement

2.1 The Practice Note covers the following matters:

– Criteria for selection of specialist report writers;

– Process for selection of specialist report writers;

– Review of lists of selected specialist report writers;

– Administration of the list;

– Appointment for individual cases;

– Case management; and

– Complaints.

2.2 Matters relating to the report writer’s preparation, presentation and content of specialist reports are detailed in The Practice of Psychology and the Law: A Handbook (2nd ed), 1996, published by the NZ Psychological Society, edited by G Maxwell, F Seymour, and P Vincent.

2.3 The Practice Note will take effect from 1 July 2001.

3. Terms and definitions

3.1 In this Practice Note:

– The term “specialist report writer” means any person from whom a psychological report has been requested under s29A of the Guardianship Act 1968 or under s 178 of the Children, Young Persons, and Their Families Act 1989 with specific provisions for Registered Psychologists.

– References to “report writers” unless otherwise stated, refer to specialist report writers. “Report” has a corresponding meaning.

– The term “child” includes both “child” and “young person” as those terms are defined in the Children, Young Persons, and their Families Act 1989.

– References to “Counsel for the Child” refer to counsel appointed by the Court, to represent a child or children, under s30(1)(b) of the Guardianship Act 1968, s162(1)(b) of the Family Proceedings Act 1980, s159 of the Children, Young Persons, and their Families Act 1989 and s81(1)(b) of the Domestic Violence Act 1995, or under any other Act or power exercisable by the Family Court.

4. Legislative requirements

4.1 Appointments of report writers for individual cases are made under s29A of the Guardianship Act 1968 and s178 of the Children, Young Persons, and Their Families Act 1989.

4.2 Any psychologist accepting an appointment under s178 of the Children, Young Persons, and Their Families Act is bound by the provisions of that section. Particular reference is made to the requirements of s179(4) as follows:

(4) Every child or young person who is examined under s178(1) of this Act is, where practicable, entitled to have present during that examination one adult –

(a) Who is nominated for that purpose by that child or young person or, if the age or level of maturity of the child or young person makes it impracticable for him or her to make such a nomination, by a Social Worker; and

(b) Who consents to be present.

5. Appointment of specialist report writers

5.1 (a) Appointments of report writers must be made by a Family Court Judge. In each case, the Court will supply a specific brief for the report writer, indicating the issues to be addressed in the report.

(b) The brief will be given by the Judge but usually will be settled by the Court in consultation with Counsel for the Child working in conjunction with counsel for the parties. Counsel for the Child will consult with any party who is unrepresented.

(c) The report writer in consultation with the Family Court Co-ordinator will ensure that the report writer’s brief is sufficiently clear, detailed and specific. Should there be a need to clarify or amplify any matter it should be referred to the Judge.

5.2 In allocating the brief to a report writer, the Court will consider the following factors.

– The match of skills to case requirements;

– The equitable distribution of work among report writers on the list of report writers referred to in para 8 below;

– The availability of the report writer; and

– The current workload of the report writer.

5.3 Once the Court has settled the brief for the report writer, the Registrar will approve an estimate of time and cost for undertaking the brief. This will include payment of any disbursements.

5.4 Once an acceptable arrangement has been reached, the Judge will sign a Minute of Appointment.

5.5 Every referral should include:

– The brief;

– Interim reporting requirements (if any);

– The date for filing of the report, (reports are usually expected to take six to eight weeks to prepare); and

– An upper limit of authorised hours to complete the brief.

5.6 Extensions to the initial allocation of hours: Where, during the course of the work, it becomes clear that the initial allocation of hours is insufficient for the report writer to meet the requirements of the brief satisfactorily, the report writer may seek an extension to the initial allocation of hours from the Registrar before commencing the additional work.

5.7 Extensions to the brief: Where, during the course of the work the report writer considers that an extension or variation to the content of the brief is required, the matter must be referred to the Court in writing for approval by the Judge.

5.8 A bill of costs should be rendered with the report and should be calculated in accordance with an agreed hourly rate of remuneration.

5.9 Where a case is to proceed to a hearing, the Registrar and the report writer will settle a basis for payment for preparation and appearance at hearings. Prior to the hearing, the report writer should be given a precise time at which he/she will be called to give evidence at the hearing.

5.10 In cases that go to a defended hearing, the report writer is entitled to see a copy of the judgment.

6. Case management

6.1 In most cases, an appointment under s29A of the Guardianship Act will be made following counselling and a mediation conference or following the filing of an urgent application resulting from a perceived serious welfare issue.

6.2 An appointment under s178 of the Children, Young Persons, and Their Families Act 1989 will usually be made after the Family Group Conference has been held. Reports required for Family Group Conferences are the responsibility of the Department of Child, Youth and Family Services. Section 178 reports are reports to the Court and will require the Court’s permission for release and use at a Family Group Conference.

6.3 On receipt of the engagement letter, the report writer will forward written acceptance of the referral to the Family Court Co-ordinator.

6.4 A letter will be sent to counsel for the parties, and where Counsel for the Child has been appointed, the Family Court Co-ordinator will forward a copy to Counsel for the Child. When appropriate, the letter will include reference to s29A(2) of the Guardianship Act 1968 concerning the wishes of the parties.

6.5 In addition, a letter in standard form explaining the purpose of the report and the responsibilities of the report writer will be sent to the parties by the Family Court Co-ordinator.

6.6 The report writer will not attend a mediation conference or a Family Group Conference without the written approval of a Judge.

6.7 Reports are usually expected to take six to eight weeks to prepare. The Court will allocate a date in the Registrar’s list, within ten weeks of the direction appointing the report writer, to develop a timetable for further steps to be taken.

6.8 The appointment will terminate on the date the report is filed.

6.9 When the report is received, the Registrar will release copies to all Counsel on the basis that it is shown but not copied to the parties without further direction. If the Registrar has concerns about the release of any report, it will be referred to a Judge for directions.

6.10 In the interests of efficiency and effective cost control:

– The brief for the report writer should be concise and specific; and

– Timetabling direction should follow the filing of a report to avoid lengthy delays between completion of the report and the hearing, and to avoid the need for updated reports.

7. Content of referral

7.1 Under s29A of the Guardianship Act, the referral from the Court should comprise:

– The standard engagement letter;

– The brief;

– The current information sheet FP7;

– A copy of the original application;

– A copy of the notice of defence; and

– A copy of the Judge’s directions if applicable.

A list of documents supplied by the Court will be attached to the engagement letter.

7.2 Under s178 of the Children, Young Persons, and Their Families Act, the referral from the Court should comprise:

– The standard engagement letter;

– The brief;

– A copy of the application commencing proceedings, including any ex parte application and affidavits in support;

– Copies of any applications filed by children’s parents or caregivers’; and

– A copy of the Judge’s directions if applicable.

A list of documents supplied by the Court will be attached to the engagement letter.

7.3 The referral will also include:

The agreed hourly rate of payment;

– An agreed allocation of hours for interviews and writing the report: (Additional expenditure incurred, except for unforeseen additional attendances where there was no opportunity to seek prior approval, will not be reimbursed);

– Standard disbursements payable; and

– Provision for application for extensions to authorised hours or changes to the brief.

7.4 Affidavits relevant to the issues outlined in the brief may be sent to the report writer to provide background information and perspectives of the parties. Such affidavits will contain untested material and they should be treated with caution, particularly in relation to contentious issues and where, as in most cases, he affidavit evidence is incomplete.

7.5 Should additional affidavits to filed after the appointment of the report writer, the Court will forward copies of these affidavits to the report writer.

7.6 If additional information is required, the report writer must make the request to the Family Court Co-ordinator in writing.

7.7 Judicial approval is required for:

– Requests for access to, or copied of, additional file material;

– Access to the Court file/s;

– Access to Child, Youth and Family Services diagnostic videos; or

– Access to Police videos (access is governed by ss11B and 11C of the Evidence (Videotaping of Child Complainants) Regulations 1990).

8. Selection of specialist report writers

8.1 In each Court there will be a list of report writers who are available to accept individual assignments from the Court as a report writer.

8.2 The Registrar will convene a panel, from time to time, to consider applications for inclusion in the list of report writers available to undertake Family Court appointments. The panel will operate as a standing rather than ad hoc panel.

8.3 The panel will consist of a Family Court Co-ordinator, two experienced report writers appointed by the Court, a Counsel for Child nominated by the Court, a Family Court Judge nominated by the Principal Family Court Judge, a representative of tangata whenua and the Registrar, as convenor.

8.4 A panel would normally have seven people, but may be convened with a quorum of four members. Any panel of four must comprise a Family Court Judge, an experienced report writer, a tangata whenua representative and the Registrar or a Family Court Co-ordinator.

8.5 Panels will be convened as required but no less than twice a year, if there are applications waiting to be considered.

8.6 The process for selection of report writers is as follows:

(a) The applicants will submit an application form to the Registrar in the Court region in which they wish to practise, nominating their area of specific expertise and the particular Court or Courts where they wish to be on the list.

(b) Each application will be referred to a panel convened by the Registrar.

(c) Panel members will make such enquiries as may be needed for them to be informed about the applicant’s ability to meet the criteria. Panel members will be assisted by the requirement that each applicant provide the names of his or her supervisor and two referees who can provide confidential, professional comment.

(d) The panel will interview each applicant. If the panel has any concerns about an applicant’s ability to meet the criteria, these concerns will be put to the applicant who will have the opportunity to reply.

(e) Although there is no obligation on the panel to provide reasons for non-selection onto the list, it is expected that, if an applicant is not selected, the panel will have discussed their concerns with the applicant during the selection process.

(f) It is expected that the panel’s approval will be by way of a consensus decision.

(g) The Registrar will advise the applicant, the Court, and the National Office of the Department for Courts of the decision, in writing.

(h) National Office will circulate the decision to other courts and on request will make the list available to the New Zealand Psychological Society and the New Zealand College of Clinical Psychologists.

(i) Report writers will be able to transfer their approval from one Court region to another.

9. Criteria for selection to specialist report writer list

9.1 The following criteria have been agreed for the selection of psychologists to the specialist report writer list:

(a) A registered psychologist with current practising certificate.

(b) A current financial member of the New Zealand Psychological Society or the New Zealand College of Clinical Psychologists.

(c) Five years’ clinical experience or equivalent including a minimum of three years’ experience in child and family work.

9.2 Psychologists will provide evidence of competency in the following areas:

(a) Assessment/diagnostic skills as follows:

– Child-parent attachment, bonding;

– Child development; and

– Physical psychological and sexual abuse.

(b) Demonstrated knowledge and understanding of the following:

– Family systems;

– Family separation and impact on children and adults;

– Parenting skills;

– Family violence and impact on children and adults;

– Child abuse and neglect;

– Alcohol and drug misuse and abuse;

– Psychopathology;

– Professional ethics;

– Local community resources for children and their families;

– Relevant family law; and

– The responsibilities of the report writer in relation to the Family Court.

(c) Cultural awareness including an understanding of the following:

– Mäori values and concepts;

– Implications of the Treaty of Waitangi for practice;

– Ability to refer to/make use of specialist cultural advice for families of different cultures;

– Understanding of the significance of cultural prohibitions, customs and language of other cultural groups; and

– Understanding of alternative child and human development perspectives.

9.3 Evidence of competency will be demonstrated by relevant academic and formal training, participation in relevant workshops, seminars and conferences and by maintaining knowledge with current trends in research and literature.

9.4 Psychologists will be expected to be familiar with core texts eg. G Maxwell, F Seymour, P Vincent (eds) The Practice of Psychology and the Law: A Handbook, NZ Psychological Society, 1996.

9.5 Specialised training and supervision should be undertaken by report writers. The responsibility for providing such training is that of the relevant professional bodies, but the Court will co-operate in the provision of expert input from Family Court Judges, Family Court Co-ordinators and others.

10. Review of the specialist report writer lists

10.1 The Registrar in each Court will ensure that the list of currently approved report writers is reviewed at intervals of not more than three years.

10.2 The Registrar will request all report writers who are currently on the list to indicate, within 28 days:

– Whether they wish to continue to receive report writer appointments;

– Whether they wish to withdraw from the report writer list; and

– Whether they have any matters relating to present or past appointments which they wish to draw to the attention of the Panel.

10.3 If they wish to remain on the list, report writers will provide the Court with a copy of their current practising certificate and professional membership, a report from their supervisor and a copy of their supervision contract, and a statement regarding any complaints.

10.4 The panel shall meet as soon as practicable and reconstitute the report writer list.

10.5 The panel will consider all the information provided by the report writers, as well as any other matters raised that relate to the administration of the list, and may choose to meet with individual report writers.

10.6 The Registrar will notify all report writers of the revised list and whether their names have been retained or deleted from the list.

10.7 The Registrar will send the revised list to the National Office of the Department for Court for distribution to all Courts.

11. Administration of the list

11.1 The Registrar will negotiate an hourly rate of payment with each report writer.

11.2 On an annual basis, each report writer will provide:

– Evidence of their current membership of an appropriate professional body and permission for the Court to access membership information from the professional body;

– A copy of their current practising certificate;

– The name and contact details of their supervisor and a copy of their supervision contract; and

– Details of relevant professional development undertaken in the past twelve months.

11.3 Each Court is to maintain a register listing, case by case, each report writer appointment, the date of appointment, the estimate of fees and actual fees paid, the type of case and the date on which the appointment terminates.

11.4 The register is to be available for the regular monthly management meeting of each Family Court.

11.5 In areas such as Auckland and Wellington, where several Courts use one pool of report writers, there should be inter-Court communication to ensure that, as far as possible, there is a spread of assignments to all listed report writers.

12. Complaints

12.1 On initial appointment each report writer will:

– Complete a statement;

– Listing any past complaints and outcomes and any current complaints; or

– Confirming no complaints, past and/or present, have been made;

– Agree to advise the Court if they are at any time the subject of a complaint to their professional body and, or the Psychologists Board or the Health and Disability Commissioner, and to provide the Court with information on the outcome of any such complaint; and

– Agree to a Police check.

12.2 If, at any time, a report writer is the subject of a complaint to their professional body, the Psychologists Board or the Health and Disability Commissioner the report writer will advise the regional Administrative Judge in writing of the complaint. Once the complaint has been addressed, the report writer will advise the regional Administrative Judge in writing of the outcome of the complaint.

12.3 Many complaints against specialist report writers come from disappointed litigants and relate not to any form of professional misconduct, but to some alleged defect or omission in the way the report writer has carried out his or her assessment. Such grievances should be aired and dealt with as part of the litigation in the Family Court, rather than by complaint against a report writer to his or her professional body some time after the case has been finalised.

12.4 The Family Court does not have jurisdiction to hear any complaints against report writers when the case has concluded. Any such complaint received by the Court should be referred to the Psychologists Board.

12.5 Any complaints about a report writer received by the Court, when the case is in progress, should be referred to the presiding Judge. The complainant must put their complaint in writing.

12.6 Matters of criticism or complaint regarding the investigation, interviews, preparation and content of reports, resulting for example in lack of balance, bias in favour for or against a party, failure to give due weight to one or other factor, should be addressed to the Court. The Court will deal with this either before hearing or in the course of a hearing, for example, by way of cross-examination, submission, critique or evidence called on behalf of the complainant party.

12.7 Where a complaint against a report writer who provides an assessment for the Court relates to an alleged breach of professional ethics falling outside matters described in 12.4 such a complaint should be referred to the Psychologists Board or the Health and Disability Commissioner.

12.8 Complaints which proceed to the relevant professional body must be treated in a manner appropriate to that body and according to its procedures. Applications for release of material to that body should be made in writing to the Judge.

12.9 Protocol for complaint to New Zealand Psychological Society, New Zealand Psychologists Board or the Health and Disability Commissioner. Where there is a complaint to any of the above arising out of proceedings before the Family Court in relation to a report, on the written request from the Body in receipt of the complaint, a copy of the report will be made available on the basis that the report is to be used only for the purposes of dealing with the complaint and is returned to the Court when the process is complete.

12.10 The Court will not normally release the report while the case is in progress.

Signed

Judge PD Mahony

PRINCIPAL FAMILY COURT JUDGE