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Psychology Board of Australia v McEvoy[2017] QCAT 473

Psychology Board of Australia v McEvoy[2017] QCAT 473

CITATION:

Psychology Board of Australia v McEvoy [2017] QCAT 473

PARTIES:

PSYCHOLOGY BOARD OF AUSTRALIA

(Applicant)

v

JANINE MAREE McEVOY

(Respondent)

APPLICATION NUMBER:

OCR 180-12

MATTER TYPE:

Occupational Regulation Matters 

HEARING DATE:

4 March 2014; 16-18 September 2014

HEARD AT:

Brisbane

DECISION OF:

Judge Alexander Horneman-Wren SC, DCJ assisted by Professor Roger Dooley, Dr Andrea Quinn, Dr Wayne Sanderson

DELIVERED ON:

17 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. A ground for disciplinary action has been established against Janine Maree McEvoy.
  2. The tribunal will hear the parties as to the appropriate disciplinary action and costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – DISCIPLINARY PROCEEDINGS – whether registrant has behaved in a way that constitutes unsatisfactory professional conduct – where the Board alleged that registrant engaged in financial dealings and multiple relationships with client – where board alleges registrant failed to provide appropriate treatment to client – where Board alleges registrant engaged in multiple relationships – where Board allege registrant blurred professional boundaries – where Board alleges registrant failed to participate in sufficient professional development or to seek appropriate supervision – where registrant's evidence and that of her husband where untruthful – where client provided $30,000 for investment in registrant’s husbands business – where registrant knew of client’s financial dealings with husband – where registrant behaved in a way that constitutes unsatisfactory professional conduct – where grounds for disciplinary action established

APPEARANCES AND REPRESENTATION:

APPLICANT

Mr M C Chowdhury instructed by McInnes Wilson, lawyers

RESPONDENT

Mr R J Clutterbuck instructed by Turnbull Mylne, lawyers

REASONS FOR DECISION

The Proceedings

  1. [1]
    The Psychology Board of Australia has brought disciplinary proceedings against Janine Maree McEvoy, a registered psychologist, in which it alleges that she has behaved in a way that constitutes unsatisfactory professional conduct[1] in that she engaged in:
  1. (i)
    Professional conduct of a lesser standard than that which might reasonably be expected of Mrs McEvoy by the public or Mrs McEvoy’s professional peers;
  1. (ii)
    Professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of Mrs McEvoy’s profession.
  1. [2]
    The grounds for disciplinary action relate to Mrs McEvoy’s treatment of, and relationship with, one of her clients, AB between about July 2008 and May 2009. The Board alleges that Mrs McEvoy engaged in financial dealings and multiple relationships with AB leading to an impairment of the treating relationship, harm to AB and exploitation.
  1. [3]
    The Board also alleges that Mrs McEvoy failed to provide appropriate treatment to AB in that she did not have a detailed and cohesive plan for therapy in relation to AB; failed to instigate measurable goals in relation to AB and, as indicated by her clinical records, did not during the ten month period of treatment perform any standardised or formal assessments of AB following initial assessments.
  1. [4]
    It is further alleged that Mrs McEvoy engaged in multiple relationships by simultaneously providing services to both AB and her grandson, XY regarding their relationship and failing to record anything in the clinical notes or documentation as to how she managed this multiple client situation, how she assessed her competency to manage a grandparent-grandchild dyad, and what supervision she might have sought to assist her to deliver services effectively in those circumstances.
  1. [5]
    It is further alleged that Ms McEvoy blurred professional boundaries with AB via text messages sent by her to AB in which she used inappropriately familiar language such as “Wow the boyfriend sure knows how to havd [sic] a good time.  U deserve all the luck and more” … “Okay darl.  Good luck”; and referring to AB as “Noels”.
  1. [6]
    It is further alleged that the respondent failed to participate in sufficient professional development activities, or to seek appropriate supervision when required, in that she failed to engage a supervisor or colleague to assist her with difficult clients such as AB despite being aware of various indicators that AB was vulnerable.

The Client

  1. [7]
    AB is a female born in 1946. She was 61 years old when she first consulted the respondent in July 2008. She was then recently widowed. She was referred to the respondent by a friend. Mrs McEvoy treatment notes[2] record that AB’s presenting problems at the first consultation were recorded as “stress, confused about what to do with life – sell home – career etc.  Manage grandson’s behaviour”. Mrs McEvoy notes also record that AB presented with thought disorder, paranoia, depression, anxiety, eating disturbance, sleeping disturbance, bizarre behaviour and manic behaviour.  They recorded that she had experienced as recent environmental stressors: marital changes; death; financial losses; and employment changes.
  1. [8]
    The “homework” which Mrs McEvoy set for AB after that first consultation was the completion of a personality assessment inventory and the life history inventory. In the life history inventory[3] AB identified the following feelings that applied to her:

“Angry, fearful, panicky, conflicted, restless, sad, shameful, lonely, depressed, regretful, anxious, guilty, hopeless, unhappy.”

  1. [9]
    AB also identified each of the following thoughts that she might use to describe herself:

“A nobody, useless, confused, crazy, worthless, stupid, unlovable; undesirable, untrustworthy.”

  1. [10]
    It is apparent from the clinical notes of Mrs McEvoy that AB’s presentation at sessions over the ten month course of the treating relationship varied considerably. Mrs McEvoy recorded AB as presenting as an intelligent woman at the initial consultation. Thereafter, Mrs McEvoy recorded AB’s presentation as being variously: talkative, open, happy, mixed, depressed, good, very distressed, confident and strong, very depressed and flat, quite happy, happy and confident, high, very tired and lethargic, down, very upset and teary, normal, calm and open, distressed and frustrated, extremely depressed and distressed, stable, calm and passive, teary and stressed, upset and teary, much happier and more relaxed, very happy, excited, emotionally flat, agitated and distressed.
  1. [11]
    At the third session with AB just over two weeks after the first consultation, Mrs McEvoy’s notes record that the session focused upon AB results on the personality assessment inventory which Mrs McEvoy recorded was suggestive of AB being bipolar. At that consultation AB also revealed that she believed that she was psychic, and she also revealed unusual beliefs that entailed her “important work in the universe”, and that she was privy to the DNA of the universe and that she was re-stranding it, and that she had unspecified special powers. Mrs McEvoy described this as “alarming” and recommended that AB see her GP for a referral to a psychiatrist. AB had indicated that she did not want to see a psychiatrist as she feared she would be considered “crazy with psychic powers”.
  1. [12]
    Ten days later Mrs McEvoy was again encouraging AB to consider seeing a psychiatrist. AB was resistant because she was too scared of what would happen to her.
  1. [13]
    At a session approximately two weeks later on 14 August 2008 AB reported that she was receiving messages about “spirit” and that she was writing a book about her knowledge. The possibility of her being bipolar was again discussed as was the need for her to see a psychiatrist, however, AB still did not want to do so.
  1. [14]
    On 22 August 2008, AB reported that she had decided not to see a psychiatrist, deciding instead to see how she could cope with therapy first. She stated that if things did not improve she would go to the doctor.
  1. [15]
    On 21 October 2008, apparently in response to AB again talking about her psychic abilities, Mrs McEvoy again urged her to seek professional help from a psychiatrist; but AB was still reluctant to do so.
  1. [16]
    In notes of a consultation on 7 November 2008, Mrs McEvoy expressed concerns that AB was possibly becoming manic but noted that she was reasonably logical about her plans.
  1. [17]
    On 16 December 2008, in the context of AB again having spoken of receiving messages from “spirit” and again telling Mrs McEvoy about the “origins of man” and “DNA”, Mrs McEvoy again suggested to AB that she may be bipolar. AB still did not want to see a psychiatrist.
  1. [18]
    Two days later, on 18 December 2008, AB presented at Mrs McEvoy’s office unannounced demanding to speak urgently with her. Mrs McEvoy described this as alarming and noted her concern that AB is manic.
  1. [19]
    During a consultation on 30 December 2008 AB said that she now wanted to see a psychiatrist for her (presumed) bipolar condition saying that she needed that further investigated. Mrs McEvoy suggested that AB needed to see her GP to obtain a referral. Mrs McEvoy noted that this was a good sign and that it was the last course of action as AB’s mood swings were becoming increasingly problematic.
  1. [20]
    At the next consultation on 6 January 2009 AB reported that she had still not gone to the GP. Mrs McEvoy noted that she was still encouraging her to do so.
  1. [21]
    Mrs McEvoy’s notes record that during a consultation on 28 January 2009, at which AB presented extremely depressed and distressed, AB became so distressed that her head began to hurt and she was screaming in pain. AB’s grandson, who was also present, was to take her to the doctor.
  1. [22]
    The notes of the following consultation, on 3 February 2009, record that AB did attend her doctor after the previous consultation and was referred to a psychiatrist. The psychiatrist, it was noted, had placed AB’s mood on stabilisers and she was noticeably calmer. AB stated that she was happy to have seen a psychiatrist who believed that she was suffering from bipolar.
  1. [23]
    On 17 February 2009, AB appeared a bit vague and became muddled. She appeared to be struggling with tiredness and lethargy. Mrs McEvoy suggested that AB see her doctor for a medication review.
  1. [24]
    On 25 March 2009, AB reported having doubled her medication to cope with her grandson. Mrs McEvoy suggested that this was not good and that she should see her doctor before doing so.
  1. [25]
    On 2 April 2009, AB again turned up at Mrs McEvoy’s rooms without an appointment demanding to see her. She was excited and wanted to tell Mrs McEvoy that she had met a man.
  1. [26]
    Her next appointment was on 7 April 2009. On that occasion Mrs McEvoy reinforced that AB’s unscheduled attendance the previous week was inappropriate. Mrs McEvoy discussed with her the need to go back to her psychiatrist for follow up.
  1. [27]
    At the next appointment on 23 April 2009 AB’s behaviour was described as manic and Mrs McEvoy again encouraged her to return to the psychiatrist to have her medication reviewed. The notes record that AB could not see the problem and brushed the suggestion aside.
  1. [28]
    On 28 April 2009, AB reported still not having considered seeing her psychiatrist again.
  1. [29]
    On 6 May 2009, the notes record that AB had no signs of mania or depression, however it was noted that she still had not had her medication assessed with her psychiatrist.
  1. [30]
    On 12 May 2009, Mrs McEvoy suggested that sessions should be held less frequently than weekly. AB was not happy with that suggestion. The sessions were left at weekly intervals.
  1. [31]
    On 19 May 2009, AB again admitted taking extra medication, the dangers of which were explained to her. Mrs McEvoy records insisting that AB go back to see her psychiatrist.
  1. [32]
    On 26 May 2009, AB presented in an agitated and distressed state with a rash on her arms which she had been scratching a lot. She had stopped taking her medication because she had visited the Emergency Department the previous weekend and had been told that the rash may have been caused by the medication. She denied having recently overdosed on her medication. Mrs McEvoy insisted that AB go straight to the psychiatrist to sort out her medication. Mrs McEvoy suggested that AB see the Chinese medicine practitioner in the building which AB did reporting improvement after acupuncture and having been given a herbal soak for her arms.
  1. [33]
    The final consultation between Mrs McEvoy and AB occurred on 28 May 2009. Although noting improvement in the condition of her arms in the context of continuing Chinese herbal medicine and acupuncture, Mrs McEvoy noted that she again had insisted that AB return to her psychiatrist to get control of her medication. She noted that “she cannot keep overdosing on it like she has been”.
  1. [34]
    The notes also record that Mrs McEvoy reinforced AB’s need to get control of her bipolar disorder and manage her life better.
  1. [35]
    Throughout the clinical notes are references to the stressors which were impacting upon AB, particularly relationship difficulties which she was having with various members of her family including her sons, daughter and grandson. It is apparent from the notes that those relationship difficulties were ongoing throughout the period during which she consulted Mrs McEvoy, although the extent to which those matters impacted upon her, and the particular persons with whom she was having difficulty, varied.
  1. [36]
    In her affidavit[4] AB describes herself as being very unwell during the period of her treatment by Mrs McEvoy.  She is of the opinion that she was incapacitated and not of a sound state of mind.  She describes struggling with basic tasks and getting through the day.
  1. [37]
    Subsequent to her treatment by Mrs McEvoy, AB was diagnosed, in August 2009, with advanced breast cancer. She underwent surgery. In 2013 she had a reoccurrence of her breast cancer and again underwent treatment. She also suffers from a number of other ailments.
  1. [38]
    The hearing of this matter was delayed due to AB’s inability to travel to Queensland to give evidence. Her condition improved and she was ultimately able to do so.

The relationship with Mr and Mrs McEvoy

AB’s evidence

  1. [39]
    AB stated that Mrs McEvoy would share information with her concerning Mrs McEvoy’s own life, including matters concerning her children and that there had been a Board hearing in relation to a prisoner’s complaint against Mrs McEvoy and that a judge had criticised a report of hers. She states that Mrs McEvoy would also discuss AB’s psychic powers asking her whether she had any visions concerning the Board’s hearings and whether she believed that Mrs McEvoy “would get off the court case”.
  1. [40]
    She says that Mrs McEvoy would also ask her similar questions about her husband finding someone to invest in his business.
  1. [41]
    AB deposed to text messages exchanged between herself and Mrs McEvoy which demonstrated the feeling of friendship between them.
  1. [42]
    A number of those text messages are exhibited to AB’s affidavit[5].  Those exhibited emails span the period 6 May 2009 to 12 May 2009.  She deposes to Mrs McEvoy using informal and friendly language which, she says, was consistent with her perception that she and Mrs McEvoy were friends.  She provides examples of Mrs McEvoy referring to her as “Noels” and “Darl”.  The exhibited text messages support that evidence.
  1. [43]
    AB deposes to feeling as though Mrs McEvoy was her friend and becoming emotionally attached to her children as she heard so much about them. She deposes to Mrs McEvoy making negative comments about AB’s own family and encouraging her to distance herself from her friends. She deposes to beginning to feel as though Mrs McEvoy was the only friend she had and that her only family was Mrs McEvoy’s family.
  1. [44]
    AB deposes to having visited Mrs McEvoy’s practice between scheduled appointments in or about April and May 2009. On one particular occasion, on or about 29 April 2009, she deposes to having taken a seafood lunch which she shared with Mrs McEvoy in celebration of her birthday. AB deposes to knowing that it was Mrs McEvoy’s birthday because she had been told that by Mrs McEvoy in a previous consultation in which she describes Mrs McEvoy as also having complained that she never makes a big deal of her birthday. She states that Mrs McEvoy appeared pleased when she bought the lunch and gave her no indication that she did not want her there or that she ought not be sharing lunch with her.
  1. [45]
    AB included in her affidavit as an example of the friendship she felt for Mrs McEvoy the following exchange of text messages:

“Janine, Noeline here, I must tell you about Thursday night.  My new boyfriend a GPS navigator took me to the RSL Currumbin and when I did the pokies promotion I won $50, a lovely meat tray and a $25 voucher to their restaurant.  What a lucky duck I am.  So I sent you all some luck today.  Love Noeline.”

“Wow that boyfriend sure knows how to have a good time.  U deserve all the luck and more.”

  1. [46]
    AB deposes to Mrs McEvoy having first mentioned her husband’s business, Victory Watches, during AB’s first appointment with her. She says that throughout the course of her treatment Mrs McEvoy gave her the impression that investing in Victory Watches would be a wise financial decision. Mrs McEvoy occasionally mentioned prospective investors in her husband’s business.
  1. [47]
    AB deposes to having had a conversation with Mrs McEvoy during a consultation on 8 May 2009 in which they discussed AB’s current situation. She says that at the time she expressed concern that working in real estate[6] may be too stressful for her given her emotional state.  AB recalls saying words to the effect that she needed to have her money working for her and that Mr McEvoy’s business could be something that she could become involved in.  She also deposes to having discussed with Mrs McEvoy in that consultation a friend of hers who may have been interested in the business.
  1. [48]
    AB sets out in her affidavit an exchange of text messages between herself and Mrs McEvoy on 9 May 2009 which she says related to her friend’s possible involvement in the business. The exchange was as follows:

JM: “Noelene did you speak to your friend about Rod’s company, Janine”.

AB: “No not yet … I’m about to give him a call now”.

JM: “OK darl.  Good luck”.

AB: “I asked about the possibility but Rose wants to buy her mum’s house that’s Margaret and so says thank you for the offer and good luck with the venture.  Sorry about that Janine but it is always worth a try.  Love Noelene.”

JM: “Thanks anyway.  I’m sure something will come along.  Persistence usually pays off”.

  1. [49]
    AB says that on 11 May 2009 she received a call from Mr McEvoy on her mobile phone. She says Mr McEvoy called to discuss his Victory Watches business with her and asked if he could visit her to “show me the business”.
  1. [50]
    Exhibit NCS-7 to AB’s affidavit are telephone account records for Victory Watches spanning the period from 4 March 2009 to 3 October 2009. The telephone records appear to relate to various telephone numbers including 0439***509 and 0408***449.
  1. [51]
    The contact telephone numbers for AB are recorded in Mrs McEvoy’s treatment notes.[7]  They include a landline and a mobile phone number.
  1. [52]
    Exhibit NCS-7 demonstrates that the phone to which the number 0439***509 relates first called AB’s mobile number at 10.11 am on 11 May 2009. It was used to call AB’s landline at 12.11 pm on 13 May 2009. It was used to call AB’s mobile on a further 12 occasions between 13 May 2009 and 17 June 2009. It was used to call AB’s landline on a further occasion on 29 May 2009.
  1. [53]
    The telephone records also demonstrate that the mobile phone to which the number 0408***449 relates called AB’s mobile phone number on 14 occasions between 16 May 2009 and 5 June 2009.  It was also used to call AB’s landline on one occasion at 3.49 pm on 29 May 2009.
  1. [54]
    AB deposes to her belief that Mr McEvoy obtained her mobile number from Mrs McEvoy.  She attributes this having occurred to her having discussed with Mrs McEvoy her possible interest in being involved in the business.  She deposes that prior to receiving the telephone call from Mr McEvoy on 11 May 2009 she had never seen or spoken to him.
  1. [55]
    AB says that Mr McEvoy came to her apartment to discuss his watch business and that he brought samples of his watches and a list of names of clients. She says that Mr McEvoy stated that he was seeking investment money so that he could acquire further watches from China for which he had customers waiting. He wanted to have the watches available by Christmas. He said that they took 12 weeks to arrive from China.
  1. [56]
    AB deposes to having informed Mr McEvoy at that time that she had about $20,000 “if he wanted to get started”, and that Mr McEvoy had responded that $20,000 would not be enough. AB then indicated that she may be able to provide $30,000 to which Mr McEvoy responded that that would be good.
  1. [57]
    AB deposes to it having been proposed by Mr McEvoy that she would be repaid the $30,000 plus 20 per cent interest in monthly instalments of $3,120. She says that Mr McEvoy showed her paperwork which he said had been prepared by an accountant and that he suggested that AB’s son agree to take out a loan against their family owned house to provide more money for the business.
  1. [58]
    AB deposes to having contact with both Mr and Mrs McEvoy over the next several days. AB consulted Mrs McEvoy in her professional capacity on 12 May 2009.[8]  AB says that later that evening she exchanged several text messages with Mrs McEvoy relating to her proposed investment in Victory Watches.  She sets out the exchange as follows:

JM: “Noelene, spoke to Rod and he is on to it.  He is much more enthusiastic.  He has also found another couple interested who are watchmakers.  Keep fingers crossed.  Janine”.

AB: “Thank heavens”.

JM:  “I know!  May be your healing has worked and he is on the right track.  I feel quite comfortable with the whole thing”.

AB: “Me too”.

JM: “Well if your intuition is positive then that makes me feel better.  You are the expert after all”.

AB: “I feel very comfortable with the person you found the broker I think he holds the solution now”.

AB: “Janine, I think that I am better off to borrow as much as I can on the house because we will make more money by putting it into watches than real estate in the next five years even though real estate may double in two years.  Noelene”.

JM: “Yes but isn’t that what you are doing?”

AB: “Yes”.

  1. [59]
    AB deposes to having several telephone conversations with Mr McEvoy between 13 and 15 May 2009 during which she says that he was keen to speed up the process and for her to discuss the investment and the proposed loan against the house with her son. She says that they had discussed the fact that AB’s house at Stratheden was for sale and the price it might attain. AB says they viewed the property on the internet on an occasion on which she attended Mr and Mrs McEvoy’s house for the purpose of having a problem she was having with her computer resolved by the McEvoy’s children.
  1. [60]
    AB deposes to Mr McEvoy having called her on about 18 May 2009 asking whether her son had signed the mortgage documents. She advised Mr McEvoy that he had not.  Her recollection is that Mr McEvoy indicated that he had an appointment with a mortgage broker the following morning and that he would pick AB up to take her there with him.  She says that this occurred and exhibits[9] a partially completed application with a Miami, Gold Coast, Mortgage Choice franchise.  The application named AB, her son and his wife as borrowers.
  1. [61]
    AB further deposes that following the appointment with the mortgage broker Mr McEvoy drove her to the bank, accompanied her into the bank and was handed a $30,000 cheque by her. Exhibited to her affidavit[10] is a copy of a Customer’s Record of Bank Cheque dated 19 May 2009 for a cheque in the amount of $30,000 with the payee being “Victory Watches”.  Mr McEvoy then drove her home.
  1. [62]
    AB deposes that in the week following her having provided Mr McEvoy with the $30,000 she had consultations with Mrs McEvoy in which they discussed her investment. She says that Mrs McEvoy told her that Mr McEvoy would be in a position to repay the whole amount within six months, but that if she wanted to continue to receive an income from the business he would continue to use her money and repay the monthly amount.
  1. [63]
    AB next deposes to Mr McEvoy having driven her on 27 May 2009 from the Gold Coast to her son’s home on the Sunshine Coast where they met with him to see whether he would agree to invest in Victory Watches and to take out a loan against the Stratheden property so that AB could invest more money in the business. AB had not informed her son at that time that she had already invested money in the business. She deposes to discussions occurring between her, Mr McEvoy, her son and his wife and to Mr McEvoy having brought some samples and papers along with him.
  1. [64]
    AB deposes to Mr McEvoy having suggested to her son that he agree to a loan being taken out and secured against the house at Stratheden so that money could be invested in the business, and to her son clearly being not impressed by that suggestion. Mr McEvoy drove her back to the Gold Coast following the meeting.
  1. [65]
    On 28 May 2009 AB told her son that she had already given Mr McEvoy $30,000. She says her son told her that she had lost her money and should cease all contact with the McEvoys. She deposes to having attended a consultation with Mrs McEvoy later that day during which she was very upset. She says that Mrs McEvoy asked her to sign some papers regarding the business. She told Mrs McEvoy that she was in no state to be making decisions and she could not understand the documents in her present condition. AB says that Mrs McEvoy took the papers from her and said words to the effect that she (Mrs McEvoy) had her back. She exhibits copies of the documents which she believes to be those which Mrs McEvoy was asking her to sign.[11]  Those documents are a “Lender’s Agreement” and a “Promissory Note”.  Each is a typed written document.
  1. [66]
    The Lender’s Agreement nominates AB as the lender and sets out her address. It nominates “Victory Watches” as the borrower. Its terms record that the lender will provide the borrower an amount of “$000,000” by way of promissory note to provide working capital for the borrower to purchase stock. The principal is to be repaid within 24 months. It provides that the “$000,000 promissory note will bear interest at 10 per cent (15%) [sic] per annum payable monthly in arrears at $000.00”. It also provides that “the borrower agrees to pay the monthly interest only loan repayments on a lender’s mortgage of $000,000 during this period”. It contains provisions relating to default by the borrower: first by paying outstanding interest from the proceeds of selling the business; and secondly by repaying the principal “from the net proceeds of the orderly sale of residential property situated at 8 Normanby Street, Mermaid Waters and all other assets of Rod and Janine McEvoy”.
  1. [67]
    It contains provision for it to be signed by each of Mr and Mrs McEvoy as “Director” on behalf of Victory Watches. It is not signed by either or by AB as lender.
  1. [68]
    The Promissory Note is dated 14 May 2009. It too is unsigned but has the same provision for signing. It too identifies “Victory Watches” as borrower and AB as lender. It too records her full address. The promise is to pay “The principal amount of $30,000 with interest at the rate of 15 per cent per annum on the total balance within 12 months of the date of the document”.
  1. [69]
    AB deposes to having left Mrs McEvoy’s rooms on the 28 May 2009 in a distressed state and having gone to a Chinese herbalist to get treatment for a skin condition on her arms.
  1. [70]
    She then deposes to having received a number of missed calls from Mrs McEvoy the following day, 29 May 2009, which she did not answer.  She then sent Mr McEvoy text messages on 31 May 2009 in which she says she wanted to pretend that everything was positive.  She recalls Mr McEvoy responding that he had already spent the $30,000 on boxes for Victory Watches.  She then ceased contact with Mr and Mrs McEvoy.  AB says they repeatedly called her in the period which followed but that she did not answer the phone and that on one occasion they came to her residence and that she spoke to Mrs McEvoy who she says was flustered about her not answering the phone or attending her consultations.
  1. [71]
    AB deposes to Mrs McEvoy, toward the end of the treating relationship, making comments concerning her will and warning her that her son did not have her best interests at heart and that he had manipulated her late husband into giving him half of the Stratheden property.
  1. [72]
    AB says that Mrs McEvoy suggested that she not leave her estate to her son but to a particular friend, or even the McEvoy children. She sent a text message to Mr McEvoy in which she indicated that she had altered her will in favour of the McEvoy children. She says that this was not true and that she never did alter her will. She says that the text message was one of those she sent on 31 May 2009 for the purpose of appeasing the McEvoy’s for her not having returned their calls.
  1. [73]
    AB was cross-examined about the circumstances of her making her affidavit in February 2013. She frankly stated that she could not recall having made it or having read through it.[12]  She did state, however, that she would have read through it before signing it.[13]  She also frankly conceded that there were matters addressed in her affidavit which she now could not remember.[14]

Test messages

  1. [74]
    In addition to various text messages deposed to and exhibited in AB’s affidavit, a large number of text messages spanning the period from 11 December 2008 to 27 June 2009 were extracted from AB’s Apple iPhone.  Those text messages were exhibited to the affidavit of Daniel Hains, a chartered accountant with specialities in computer forensics and financial investigation.[15]  Mr Hains is the director of forensic technology at Vincent’s Chartered Accountants.
  1. [75]
    Mr Hains created a forensically sound forensic image of all of the operating system databases stored on AB’s phone using a cellebrite UFED which he describes as a dedicated cellular phone imaging device. The program is widely used by police services for downloading of data from phones.[16]
  1. [76]
    That imaging procedure acquires and preserves the electronic content of the phone handset making all data available for analysis. Mr Hains then analysed the forensic image and extracted all of the available SMS text messages, including deleted messages.[17]  He then applied advanced filters to all the extracted text messages to identify those which had been sent to or received from numbers identified as being those of Mr and Mrs McEvoy.  It was not in contest that the respective numbers were those of Mr and Mrs McEvoy.  Those messages and associated metadata are set out in a schedule which is Annexure 3 to Mr Hains’ report.
  1. [77]
    Some attempt was made by Mr Clutterbuck who appeared for Mrs McEvoy to cast doubt upon the text messages on the basis that there was no evidence that they were actually sent or received as opposed to them simply having been downloaded from AB’s phone. I reject that. In relation to the messages sent from Mr and Mrs McEvoy’s phones, there is evidence of them having been received. That evidence is their very presence on AB’s phone. Further, the folder in which they were located is identified as “inbox”, and their status is identified as “read”.
  1. [78]
    In respect of the messages sent from AB’s phone to those of Mr and Mrs McEvoy, the status is identified as “sent”. Some of the messages received on AB’s phone are, in context, quite obviously responsive to texts sent immediately beforehand by her. The obvious inference, indeed the only inference open on the evidence, is that the messages sent by AB were received by Mr and Mrs McEvoy.
  1. [79]
    Further evidence of the receipt of messages sent by AB to the McEvoy’s phones, if any were needed, is provided by the McEvoys themselves. There is a text sent from AB’s phone at 9.17 pm on 27 May 2009[18] in which she said “Janine we survived and we are on our way home.  See you around 10:00.  Love Noelene”. On AB’s evidence this text was sent by her on the return journey with Mr McEvoy after they had met with her son.  Mr McEvoy’s evidence was that such a text was sent and that he was shocked by the fact that it had been because AB had been insistent that he not tell Mrs McEvoy about her involvement in the business.  He states that AB then panicked and said she could not believe she had done.  He says that he calmed her down.  He assumed that as his wife had not responded to AB’s text Mrs McEvoy must not have seen it and was in bed.  He says that he assured AB that he would delete the text from his wife’s phone when he got home and that this is what he in fact did.
  1. [80]
    For reasons I shall develop later, I reject all of Mr McEvoy’s evidence on this issue; indeed on all issues. However, his evidence concerning this text message, false as it is, is based upon the relevant message having been both sent and actually received. It was evidence led in Mrs McEvoy’s case which is entirely at odds with the submission made by her counsel that there is no evidence of receipt of the text messages.
  1. [81]
    There was also evidence from Mrs McEvoy under cross-examination where she accepted at least one of the text messages had been sent by her.
  1. [82]
    Whilst the onus is upon the Board to establish its case against Mrs McEvoy, it having adduced considerable reliable evidence of the text messages having been sent and received, there was an evidentiary onus upon Mrs McEvoy to adduce evidence which might support the submission advanced by Mr Clutterbuck.  There was no such evidence.  Neither her phone nor Mr McEvoy’s were analysed.  There was direct evidence from Mr Hains that altering text messages on a smart phone outside of the installed operating system is a very sophisticated exercise for which there is no established or recognised process.[19]
  1. [83]
    This evidence is sufficient also to reject another submission made by Mr Clutterbuck that the text messages may well be a contrivance on AB’s part for the purposes of setting up this case.

Mrs McEvoy’s evidence

  1. [84]
    Mrs McEvoy denies any knowledge of AB’s financial situation. Mrs McEvoy recalls that at the first therapy session AB spoke of a house which she co-owned with her son and Mrs McEvoy recommended that AB see a lawyer or financial adviser. She denied having made any comments upon any of AB’s family members or their behaviour.
  1. [85]
    Mrs McEvoy said in her statement that over the considerable period of time that AB was seeing her it was highly likely that she had spoken of or mentioned her children’s names and possibly their swimming achievements. Photographs of her children were in her office. In her oral evidence she seemed to contradict that by saying that AB may have known her children’s names from the media, but that she did not mention their names to AB. Mrs McEvoy denies having ever discussed AB’s will with her. She denies suggesting that AB leave her estate to the McEvoy children.
  1. [86]
    Mrs McEvoy states that her clinical notes document what occurred during the therapy sessions and that nothing else occurred.
  1. [87]
    As to AB’s involvement with Mr McEvoy’s business she says that on 28 May 2009 Mr McEvoy arrived home after work and informed her that he needed to tell her something. She says that he informed her that he had entered into a business relationship with AB and that he had only learned that day, quite by accident, that she was Mrs McEvoy’s client. She says that upon hearing this she was both shocked and annoyed with both her husband and her client.
  1. [88]
    Mrs McEvoy says that her husband drops into her office from time to time and it is possible that AB may have seen him there.
  1. [89]
    She states that she maintains a professional distance from her clients and that when AB overstepped her boundaries she immediately addressed the problem. She says she never saw any problems that would have alerted her to AB’s interest in her family.
  1. [90]
    She says that upon learning of the situation she immediately attempted to contact AB sending her numerous text messages over the course of the next day and into the following week. She says that she even attempted to write text messages which implied that she knew about the business arrangement in the hope that AB would call her. She says that “apparently my husband also tried to get her to contact him but she never did.  It would clearly appear that she did not have any intentions of speaking to either of us once I had found out about the business arrangement”.[20]
  1. [91]
    Mrs McEvoy says that right up until AB’s last session with her she never suspected anything about AB’s involvement with her husband or his business. She says that she had never been involved in her husband’s business affairs and that he had never been involved in hers.
  1. [92]
    Mrs McEvoy denies sending a text message to AB on 11 December 2008 in which she said “Noel’s, after 1.30 would be good.  I have a patient at 2.00 pm.  Janine”.  Nor can she explain such a text message being received by AB apparently from her phone.  She claims never to have called the patient “Noels”.
  1. [93]
    Mrs McEvoy denies receiving a text from AB on 12 January 2009 in which AB said “Janine please remind me tomorrow to tell you more about the Victory business”.  She says that AB never referred to the Victory business with her.  She agrees, however, that on her account AB would not have had any idea about Victory Watches until 4 May 2009 being the date when she understands that AB introduced herself to Mr McEvoy in a shopping centre and asked him about his business.
  1. [94]
    Mrs McEvoy’s clinical notes demonstrate that she did have a session with AB on 13 January 2009. In context, therefore, the response to telling AB more about the business “tomorrow” suggests that a message sent on 12 January could be referring to a session which was to occur, and which did occur, the following day.
  1. [95]
    She denies receiving a text on 12 January 2009 which read “Loving thoughts from Noelene”.  She agreed that had she received such a text it would have sent alarm bells ringing.  She says that had such a text been received she would have had to address it at the next appointment.
  1. [96]
    She denies ever sending a text message on 16 January 2009 in which she said:

“Noels XY called me earlier wanting to talk to you.  He’s a bit distressed over what you talked about.  May be you should both come to a double session on Tuesday to sort things out?  I could see you both from 12.00 to 2.00 Tuesday morning.  Janine”.

  1. [97]
    She says that XY never called her to her recollection.
  1. [98]
    Mrs McEvoy also denied having sent a text message on 19 January 2009 saying:

“Noels are you wanting a double appointment tomorrow with XY?  Janine”.

  1. [99]
    She said clients booked their next appointment at the conclusion of their current appointment. She claims not to chase patients to make appointments.
  1. [100]
    Mrs McEvoy’s clinical notes record there having been a double appointment with AB and XY on 20 January 2009. 20 January 2009 was a Tuesday. In the context of Mrs McEvoy’s clinical notes, the first of these text messages suggests that it is referring to a session which AB had already booked (which would accord with ordinary practice) for the following Tuesday. The second text would also seem to refer to that appointment which was, then, scheduled for the following day. It would also seem to refer to the first text which had suggested a double appointment be held on that day. Both accord with there having been a double appointment on 20 January 2009.
  1. [101]
    Mrs McEvoy did not remember receiving a text on 16 February 2009 reading “Thank you, Janine.  Love Noelene”.  She denies sending a text about medications on 3 March 2009 as she would not discuss medications with a client.  That would be referred to a client’s doctor.
  1. [102]
    She also denied receiving a text from AB in response saying “Janine. Thank you.  Love, Noelene”.
  1. [103]
    Mrs McEvoy denied sending a text to AB on 10 March 2009 in which she said “Noelene, you’re appointment today is 2.30 and 3.30.  Janine”.  She denied this on the basis that she would always use a certain script in confirmation texts.  She said that she sent all her clients confirmation texts the night before to obtain confirmation that they will be attending their session the next day.  She could offer no explanation as to how that message came to be on AB’s phone.
  1. [104]
    She could also not recall receiving a text in response from AB saying “OK.  Good.  I’ll make sure she is there on time”.
  1. [105]
    Mrs McEvoy’s clinical notes record that there was a session with AB on 10 March 2009. In context, the text messages appear to refer to that session.
  1. [106]
    Mrs McEvoy conceded that she may have sent a text message on 25 March 2009 in which she said “Noelene, you’re appointment is now, are U and XY coming?”.  Her clinical notes record that AB did attend an appointment that day.
  1. [107]
    She did not, however, recall receiving a text from AB the following day, 26 March 2009 in which AB said:

“Janine, I am all better now, a happy camper.  See you next week.  Love Noelene”.

  1. [108]
    Mrs McEvoy said that she didn’t know what AB would be all better about. However, her clinical notes for the session on 25 March 2009 record AB as having presented on that occasion “upset and teary”, and that she had been overmedicating. AB also reported struggling with certain family issues and being angry. In the context of these notes there appear to be matters which AB might state the following day that she was “all better” about.
  1. [109]
    Mrs McEvoy denied sending the text message in the schedule which reads “I am so glad.  U take care and I look forward to seeing U”.
  1. [110]
    That text was sent less than one and a half minutes after AB’s text saying that she was happy. It is quite apparently in response to AB’s text.
  1. [111]
    Mrs McEvoy said that she may have sent a text on 6 May 2009 which read “Noelene, I just realised I gave U the wrong time for your appointments today.  They are 3.30 and 4.30.  Sorry”.  She said in respect of the use of the shorthand “U” that she tried to make sure that she did not use abbreviations when she typed her text messages.  This seemingly caused her to doubt that she was the author of the text.  It is to be noted that the abbreviation “U” is used in several of the texts extracted from AB’s phone as having been sent from Mrs McEvoy’s phone and which she denies having sent, including the apparently responsive text on 26 March 2009 referred to above.  Again, Mrs McEvoy’s clinical notes record that AB did attend a session with her on 6 May 2009.  In context, the text would appear to relate to that session.
  1. [112]
    Mrs McEvoy did not recall receiving a text message from AB on 7 May 2009 relating to her luck at the Currumbin RSL as set out above. Mrs McEvoy agreed that it would be very unusual to receive such a text from a client, and that had she received such a text it would certainly send out warning signals to her. She said she would “tag it” to talk about when she next spoke with the client.
  1. [113]
    Mrs McEvoy denies sending the text, apparently in response, as also set above and which was sent within an hour of receipt of AB’s text.
  1. [114]
    The text message set above which read “Noelene, did you speak to your friend about Rod’s company?  Janine”, was downloaded from AB’s phone indicated that it was received on 9 May 2009.  Mrs McEvoy denies sending the text and cannot explain how it could have come from her phone.  She also denies having received the message sent from AB’s phone a little under two and a half hours later, and apparently in response, which read “No not yet.  There [sic] not at home.  Noelene.  I’m about to give them a call now”.
  1. [115]
    She also denies sending the text some 13 minutes later, apparently in reply, which read “OK darl.  Good luck”.
  1. [116]
    Approximately 30 minutes later the text was sent from AB’s phone which read:

“I asked about the possibility but Rose wants to buy her mum’s house that’s Margaret and so says thank you for the offer and good luck with the venture.  Sorry about that Janine but it’s always worth a try.  Love Noelene”.

  1. [117]
    Likewise Mrs McEvoy denies having sent the next message, which was received on AB’s phone two and a half minutes later which read: “Thanks anyway I am sure something will come along.  Persistence usually pays off”.
  1. [118]
    On 12 May 2009 four texts were respectively sent from and received on AB’s phone concerning appointments. At 10:45:57 the following text was sent: “Janine do I have an appointment today please”.
  1. [119]
    At 10:48:32 the following, apparently responsive, text was received on AB’s phone and is recorded as having been sent from Mrs McEvoy’s phone: “Yes you do at 1:30 and 2:30”.
  1. [120]
    Mrs McEvoy accepted the possibility that she may have sent that text. However, she would not concede the possibility that she sent the next text at 12:43:29 which read: “Noels I have just finished my morning session.  I will have my lunch and you could come at 1.15”.
  1. [121]
    At 12:44:28 an apparently responsive reply text was sent by AB which read: “Thank you”.
  1. [122]
    Mrs McEvoy’s clinical notes record that AB did have a session with her on 12 May 2009.  In context, those emails appear to relate to the appointment for that session.
  1. [123]
    Later that day at 17:06:07 the text message which read “Noelene, spoke to Rod and he’s on to it.  He’s much more enthusiastic.  He’s also found another couple interested who are watchmakers.  But fingers crossed.  Janine” was recorded as having been sent from Mrs McEvoy’s phone and received on AB’s phone at 17:06:07.
  1. [124]
    Mrs McEvoy denies having sent that text. She would not concede the possibility that she sent it.
  1. [125]
    The text saying “Thank heavens”, apparently in response, was sent from AB’s phone one and a half minutes later.  Just under two minutes after that, a text identified as having been sent from Mrs McEvoy’s phone was received on AB’s phone.  It appears to be a confirmation of the conversation.  It was the text which read: “I know! Maybe your healing has worked and he is on the right track.  I feel quite comfortable with the whole thing.”
  1. [126]
    The conversation apparently continued with AB sending a text to Mrs McEvoy’s phone about a minute later saying “Me too”.  Two minutes after that a text identified as having been sent from Mrs McEvoy’s phone was received on the phone of AB.  It was the text which read: “Well if your intuition is positive then that makes me feel better.  You are the expert after all.”
  1. [127]
    Approximately two minutes later, a text is sent from AB’s phone to Mrs McEvoy’s phone, which is the text which read “I feel very comfortable the person you’ve found, the broker, I think he hold the solution.”
  1. [128]
    Then, about one and a half hours later, AB sent the text to Mrs McEvoy’s phone which read:

“Janine.  I think I am better off to borrow as much as I can on the house because we will make more money by putting it into watches than real estate in the next five years, even though real estate may double in two years.  Noelene.”

  1. [129]
    Mrs McEvoy does not recall receiving that text. She denies sending an apparently responsive text just two minutes later saying: “Yes but isn’t that what you were doing?”
  1. [130]
    AB’s response of “Yes” was sent within a minute of receiving the question apparently from Mrs McEvoy’s phone.  A further response identified as having been sent from Mrs McEvoy’s phone was received about two and a half minutes later.  It was the text which read: “Okay, I didn’t understand the text.  That’s also why convincing Tony to also do it would be even better.”
  1. [131]
    Tony is the name of AB’s son who AB said Mr McEvoy met with her on 27 May 2009. Mrs McEvoy denies having sent that text.
  1. [132]
    On 14 May 2009 a text message was sent from AB’s phone to Mrs McEvoy’s number. It commences with AB stating that she was seeing a doctor later that day and raising the need to obtain the dates upon which she had obtained a Medicare rebate, seemingly for visits to Mrs McEvoy. She says that she is hopeful that she would be able to get an extension of her visits to Mrs McEvoy to her that day. AB signed off “Love Noelene” and then included the following: “I will drop the cheque into Rod this morning if that is okay.”
  1. [133]
    When asked if she recalled receiving that text, Mrs McEvoy responded: “No. Not at all.”   AB’s appointments were covered by Medicare.
  1. [134]
    Mrs McEvoy denied sending a text message at 9.54pm on 16 May 2009 which read:

“Noles, SBS is showing ABBA movie.  Thought U would want to watch it.”

  1. [135]
    She denied receiving an apparently responsive text from AB the following morning which was signed off “Love Noelene”.
  2. [136]
    Mrs McEvoy denied sending or receiving a series of text messages on 21 May 2009 concerning advice which AB had received from a psychiatrist concerning medication which she was taking for her bipolar condition.
  3. [137]
    Mrs McEvoy denied participating in a text exchange on 26 May 2009 in which appointments of her grandson were discussed.  The final text in that exchange, which is recorded as having been sent from Mrs McEvoy’s phone to AB’s phone, was:

“Tell him he does not have any Medicare left which is why he is not booked.”

  1. [138]
    The grandson’s appointments had also been covered by Medicare.
  2. [139]
    On 27 May 2009 a text message is recorded as having been sent from AB’s phone to Mrs McEvoy’s phone which read:

“Janine, my darling, from the seat of my souls love for you and your children.  I thank you for your many gifts of wisdom.  Love Noelene.”

  1. [140]
    Mrs McEvoy denied receiving that text but agreed that it would have been very alarming had she done so.
  2. [141]
    She denied sending a text, apparently in response, recorded as having been sent from her phone 45 minutes later at 12.32pm which read: “Thanks that is beautiful.  Enjoy getting to know Rod today.”
  3. [142]
    It is uncontroversial that it was on the afternoon of 27 May 2009 that Mr Rod McEvoy accompanied AB to her son’s house on the Sunshine Coast to discuss investing in the Victory Watches business and borrowing against the security of the property jointly owned by AB and the son for that purpose.  In context, the text message would appear to relate to AB spending that time with Mr McEvoy later that day.
  4. [143]
    The next text message recorded as having been sent from AB to Mrs McEvoy is the text sent at 9.17pm on 27 May 2009, to which reference has already been made.  That is the text that Mr McEvoy in his evidence accepts that AB sent from his car on their return journey from the Sunshine Coast, after having visited AB’s son. It is the text message which he says he told AB he would delete from Mrs McEvoy’s phone, and that he did in fact delete.  Although Mrs McEvoy’s evidence was that she did not receive that text message, any version of the facts supports that text being sent from AB’s phone and received on Mrs McEvoy’s phone at the time recorded.
  5. [144]
    A text reading: “Noles, did U come back with your payments?  I have just finished with my last patient and will be going home soon.  How are you going to pay? Janine.”,  is recorded as having been sent from Mrs McEvoy’s phone to AB’s phone at 7.00pm on 28 May 2009.  Mrs McEvoy agrees that AB had not paid and that she was waiting for AB to do so.  She says that she had attempted to call AB.  However, she denied having sent the text message, even though she accepted the circumstances of her waiting for AB expecting her to return with payment would make the text message perfectly explicable.
  6. [145]
    On 29 May 2009, a text is recorded as having been sent from Mrs McEvoy’s phone to AB’s phone at 9.41am reading “Noelene, call me ASAP. Janine.”
  7. [146]
    Mrs McEvoy said that she did send that text.  She says that was sent when she was trying to get AB to contact her to explain that the business arrangement which she says Mr McEvoy had told her of the previous night “just wasn’t appropriate.”[21]
  8. [147]
    Mrs McEvoy’s acceptance that she did send that text message contradicts earlier evidence which she had given.  Mrs McEvoy had offered as the reason why she would not accept that numerous texts to AB which were signed off “Janine” were sent by her, that she did not sign off in that manner when texting people who knew her or who had her number stored.  She said:

“The only time I’d sign off ‘Janine’ would be if I was sending a text to someone who didn’t know me or they didn’t have, maybe, my name in their address book because my name would come up anyway.”[22]

  1. [148]
    Mrs McEvoy’s evidence was that she did not believe it was appropriate for AB to be investing in her husband’s business and that she remained of that view in the succeeding months.  Notwithstanding this being her stated belief about the inappropriateness of the investment, Mrs McEvoy said that she never enquired of her husband as to what became of the $30,000 provided to him by AB because it was something which he was involved in and which did not involve her.[23]
  2. [149]
    Mrs McEvoy claimed there were text messages which she had sent to AB at about that time which were missing from the schedule downloaded by Mr Hains.  She provided no evidence of those texts and had provided no details of them to her lawyers.
  3. [150]
    Mrs McEvoy’s evidence was that AB was an intelligent, articulate woman who did not appear vulnerable to her.  She said that she felt AB was functioning well in her life and she did not feel she was vulnerable notwithstanding that her own clinical notes record concerns that AB was becoming manic and was delusional.
  4. [151]
    Mrs McEvoy claimed that the type-written clinical notes which she had exhibited to her statement were typed exactly from how her handwritten notes had been written.  Mrs McEvoy’s attention was drawn to the fact that a number of matters were included in the typed written notes which did not appear in the original handwritten notes.  Mrs McEvoy said that anything which was added was simply to highlight certain things during the Board’s investigation and so that she could understand them as well.  As was pointed out to her, however, some of the additional entries refer to actions which she had taken in consultations such as urging AB to go back to her psychiatrist.  A note to that effect was added to the notes for seven visits.
  5. [152]
    Also, whilst the additional notes appear at the end of the entries for each consultation on 12 of the 13 occasions on which she has added to the notes, on the other occasion the further note has been added in the middle of the notes for that session.
  6. [153]
    To an uninformed reader, it would not be apparent that the notes had been added to.  If one accepts Mrs McEvoy that the additional notes are accurate, given the nature of the additions made, particularly her encouragement for AB to return to see her Psychiatrist, the notes as originally made were, at the least, incomplete and failed to include material information on many occasions.  However, it seems quite improbable that had Mrs McEvoy actually been repeatedly urging AB to return to see her psychiatrist that she would fail to record that in her handwritten notes on seven occasions.  Any likelihood that she would fail to make a note of that at the time of making handwritten notes at the consultation would, one would expect, diminish on each successive occasion on which such encouragement was offered.
  7. [154]
    Mrs McEvoy was cross-examined about the financial affairs and circumstances of her family in 2009.  She and Mr McEvoy maintained a joint bank account with the National Australia Bank.  From that account, various payments were made on a regular basis, including the mortgage on their home which was with GE Money Mortgages, and a car loan on Mr McEvoy’s vehicle with Ford Credit Queensland.
  8. [155]
    Initially, Mrs McEvoy said that she regularly checked that account.  Later, however, when various entries and the statements for that account were drawn to her attention, she said that there were times when she wouldn’t, or that she may have been busy and not looked at the whole of the statement.  That evidence was given by her in respect of her knowledge as to how far behind they had fallen in the payment of their mortgage.  She said that she just assumed that Mr McEvoy was making the payments.
  9. [156]
    Mrs McEvoy also gave evidence that she did not have Eftpos or credit card facilities at her practice premises for clients making payments and that they, therefore, paid in cash.  Those cash payments, she said, would be deposited into the joint account.  She was unable to identify any such deposits recorded in the statements for that account.
  10. [157]
    An examination of those bank statements clearly demonstrates that in the early months of 2009, the McEvoys were under financial stress.  There were insufficient funds to pay the monthly mortgage and car loan payments.  Those payments would be automatically deducted from the account, but would subsequently be reversed with a dishonour fee being applied. On occasions, transfers were made to GE Money Mortgages, but for significantly smaller amounts than the required monthly instalments.  GE Money Mortgages ultimately filed a claim against the McEvoys on 29 June 2009 and in August 2009 obtained a default judgment against them.  Mrs McEvoy denied that she had knowledge of that at the time and said she only became aware of it later in that year.
  11. [158]
    Mrs McEvoy accepted that in May 2009 she and Mr McEvoy definitely had financial stress.

Mr McEvoy’s evidence

  1. [159]
    In a statement filed in the proceedings Mr McEvoy described having met AB in the week of 4 May 2009.   He said that AB approached him while he was at the local shops and introduced herself by name.  She had said that she recognised him from his wife’s place of work, which he assumed may have been on an upon occasion which he called in to pick up or deliver something.
  2. [160]
    He described AB as being very chatty and says she asked about his children’s swimming, which she appeared to know quite a bit about.  This did not surprise him, as the children were well-known on the Gold Coast for their sporting achievements and were often in the local press.
  3. [161]
    He says that AB then asked him what he did for a living, and he told her that he had an import wholesale watch business and briefly explained his history in the trade.  He says that her interest grew when he mentioned that he was in the process of expanding his business.  She told him of her own background in business and impressed him with her knowledge of business and finance.  He says that she said that she wanted to know more about possibly investing in the business herself as it would provide her with extra income.
  4. [162]
    He states that she gave him her phone number and asked him to phone her, saying words to the effect that she was “the one to help his business”, which he thought was an odd expression.
  5. [163]
    He says that she insisted that he keep matters between them private and not tell his wife as she did not like others knowing her financial business and as many of her friends knew his wife, she was worried they may find out if Mrs McEvoy were to know.
  6. [164]
    Mr McEvoy says that the following week he called AB to arrange a meeting at her house to discuss the business plan.  He says that they met and that she was very keen, insisting that he take $30,000 as she did not want her son finding out that she had money in her account and that she was having to make contact with him about the property and borrowing.  He says that he declined, as it was only early days and nothing else had been pursued.  He says that AB asked him if he would go to the mortgage broker with her on 19 May 2009.
  7. [165]
    Mr McEvoy says that at the mortgage broker he found out that AB actually co-owned a property with her son.  He says that after meeting with the mortgage broker she again insisted he take a cheque for $30,000 from her.  He says that this time he agreed to take it as a deposit and later that day gave her a contract for the money.
  8. [166]
    Mr McEvoy states that the following week AB called him on 27 May to ask him to go with her to the Sunshine Coast that afternoon to help to explain the business to her son as she had been told by the mortgage broker that she needed her son to co-sign a mortgage application for her to continue with the process.  He says that he agreed to this as he felt it would help her and it was a long drive.
  9. [167]
    He says that they met with AB’s son and his wife at their home that evening.  He explained his business to them and showed them his watches.  He says that they appeared interested in investing their share of the property in his watch business as well. 
  10. [168]
    He stated that on the return journey AB appeared very excited and after a while began texting on her phone.  He says that he paid no attention to that until she looked at him with a big smile and said that she had just let Mrs McEvoy know that they were finished and that they were on their way home.  This was the text message sent at 9.17 pm on 27 May, to which reference has already been made.
  11. [169]
    He stated that he was shocked that she would send a text to his wife after insisting that he not tell her.  As already mentioned, he says that she then panicked and said that she could not believe what she had done.  Although he says that he was not too worried as his wife knowing about his business did not bother him. It was then that he says he assured AB that he would delete the text when he got home.  As already discussed, he states that this is what actually occurred and that Mrs McEvoy never saw the text.
  12. [170]
    Mr McEvoy states that on the following day, 28 May 2009, he received a phone call from one of his good stockists who had just received a call from a woman with the same first name as AB’s daughter-in-law with whom they had met the previous day.  He says that the stockist told him that she was asking about Mr McEvoy and his watches.  Mr McEvoy told the stockist that he was organising capital and when discussing the business the previous evening had mentioned a few stores, which stocked his products in the area near where their property was located.
  13. [171]
    Mr McEvoy says that his stockist was able to identify the investor as AB based upon what Mr McEvoy told him of the location of the property.  Mr McEvoy said that upon identifying AB, the stockist told him to be careful of her as the stockist’s daughter was the girlfriend of AB’s grandson “and he knew her well enough to not ever do business with her and told me some things about the family that made me very concerned by what AB had represented herself as”.[24]
  14. [172]
    Mr McEvoy says that following this and what he described as “the weird incident with the text message on the way home from her son’s place the day before”[25], he realised that AB must have been one of Mrs McEvoy’s patients and that she had led him to think otherwise.  He says that it was then that he decided he needed to tell his wife about AB that very evening.
  15. [173]
    Mr McEvoy says that upon telling Mrs McEvoy, she was furious and upset, and very scared at what he had told her.  Mr McEvoy’s evidence was that:

“We decided that the best course of action was for me and my wife to make contact with AB and stop the business deal immediately.”[26]

  1. [174]
    He says that the following morning Mrs McEvoy must have called AB at least 10 times to get her to return the call and that he also tried but to no avail.  He says that Mrs McEvoy then sent text messages to AB saying she knew of the business deal.  He says Mrs McEvoy was careful to write those text messages in such a way that AB would be happy to return her calls.
  2. [175]
    Mr McEvoy then states:

“This is the only reason AB would have any text messages from my wife about the business deal, as she was not in any way involved or even knew about it until May the 28th.”[27]

  1. [176]
    He says that as they had not heard from AB by the end of the week, he decided to drive to her house but nobody answered.
  2. [177]
    He says:

“I have not seen or heard from AB or her son or daughter-in-law since the 28th of May.  I have also never received back the contract I gave her weeks ago regarding the $30,000.  The behaviour of AB and her family does not make any sense to me, as I was always completely open the entire time with them.

As far as I am concerned there was a legitimate business deal between two parties, if AB wanted privacy I had no problems with that.   Now I can see why she did not want my wife to know and it was very scary.  They could have contacted me at any time to discuss or even stop going ahead with the business plan but they never have.  I find this very strange.”[28]

  1. [178]
    Mr McEvoy goes onto express his disturbance at the letter of complaint that AB sent to the Psychology Board of Australia.  He says the things said in that complaint about his wife and children are disturbing, and do not at all sound like the confident business woman he dealt with.  He says he is concerned as to the risk he has placed his family in and asserts that AB “obviously had other agendas in trying to be part of my business.”[29]
  2. [179]
    He accuses AB of having been “very deceptive about her intentions.”[30]
  3. [180]
    In giving evidence before the Tribunal, Mr McEvoy accepted that he had made no attempt to return the $30,000 to AB.  He also accepted that she had received no return on that investment.
  4. [181]
    He did not accept that in May 2009 he and his wife were under considerable financial strain, rather describing it as “just tough times.”[31]
  5. [182]
    In his oral evidence, Mr McEvoy said that the lenders agreement and promissory note that he had given AB were just copies of documents he had used in the past “to show that something like this could be done” and that there would have been a document drawn by a lawyer once the full mortgage had been drawn down.  He said that he did not give those documents to AB wanting her to sign them.[32]
  6. [183]
    This evidence appears quite at odds with that in his statement that he had given her a contract for the $30,000 and that he had never received that contract back from her.
  7. [184]
    Mr McEvoy also denied having sent and received a number of text messages set out in Mr Hains’ report as having been received from his phone on AB’s phone or sent from her phone to his.
  8. [185]
    He denied having sent a text on 16 May 2009 saying: “At gate. Rod.”
  9. [186]
    He denied having received a text from AB on 16 May 2009 concerning her property at Stratheden which read “Stratheden 499, he’s at the bottom of the range, ljhooker.com. Noelene.”  He also denied sending a text, apparently in response, two minutes later saying “Okay.”
  10. [187]
    He denied having sent a text on 18 May 2009 saying: “Have you a recent rates notice.  We will need for bank. Rod.”  
  11. [188]
    He also denied knowledge of a response from AB of “Yes I do,” and a further response apparently from him of “Good.”
  12. [189]
    He said those texts were a complete mystery to him.
  13. [190]
    Likewise, he denied sending a text on 26 May 2009 which read: “How’s the rash and have you had time to see Tony?  Heard any progress on valuation?  A bit wet.”
  14. [191]
    Mr McEvoy gave oral evidence that at the time he was attempting to make contact with AB after he had realised that she was a patient of his wife, he was wanting to do so to speak to her to find out what was happening.  When it was pointed out to him that in his statement he had said, seemingly inconsistently, that he and his wife had already decided to stop the business deal immediately, he responded “Oh, yes”.  The Tribunal formed the view that he realised an inconsistency had been exposed.
  15. [192]
    When asked about not having made any effort to return the $30,000 to AB, Mr McEvoy responded by asking “Well, wouldn’t you think she would make an effort?” 
  16. [193]
    Financial records concerning Victory Watches were also in evidence.[33]  The business operated a cheque account with the Bank of Queensland.  That account had a $10,000 overdraft facility.  The bank statements in evidence go back to December 2008.  They demonstrate that the overdraft facility was almost fully drawn for most of that time.  On occasions it was overdrawn.
  17. [194]
    On 14 May 2009, the account had a debit balance of $9,923.20.  There was thus $76.80 available under the overdraft facility. 
  18. [195]
    On 19 May 2009 a deposit of $30,000 was made, giving the account a credit balance of $20,076.80. 
  19. [196]
    On 20 May 2009, a cheque was written against the account for $3,798.  Mr McEvoy did not recall what that cheque was for.  It is clear, however, that it would not have been able to have been written had the $30,000 from AB not been deposited the previous day.  It may also readily be inferred that it was not to pay for stock ordered with a view to expanding the business, investment monies having been received the previous day.
  20. [197]
    On 21 and 22 May, a further three cheques totalling $902.20 were written against the account.  On 22 May, $8,674.91 was also transferred to a loan which Mr McEvoy had with the Bank of Queensland.  It was a $190,000 or $200,000 loan taken out for capital to start the business.
  21. [198]
    On 25 May, $3,000 was transferred to GE Money Mortgages.  This was payment toward the mortgage on the family home.
  22. [199]
    On 25 May, $300 was transferred to Telstra in payment of, or toward, a telephone account.  The Telstra accounts for Victory Watches were also in evidence.[34]  They demonstrate that in 2009 the phone account was continuously in arrears.  Another transfer of $300 was made to Telstra on 27 May 2009.
  23. [200]
    On 29 May, another $1,700 was transferred to the Bank of Queensland loan.  On the same date, $750 was transferred.  Mr McEvoy’s notation to that statement suggests that this was to a loan account.
  24. [201]
    On 1 June 2009, $849.80 was transferred to St. George Bank.  This was in respect of another car loan for a dodge vehicle, which Mr McEvoy described as sometimes being used for work.
  25. [202]
    On 2 June, an amount of $862 was transferred.  Mr McEvoy had notated it “J Rent.”  He could not recall what it related to.  Also on 2 June, $800 was paid to Ford Credit.
  26. [203]
    Sundry other payments and withdrawals were made.  Two deposits totalling $2,976.22 were made into the account.  By 2 June 2009, the account had returned to overdraft. 
  27. [204]
    The $30,000 on AB’s money deposited on 19 May 2009 had been entirely dissipated in less than two weeks.

Findings of fact and credit

  1. [205]
    It is convenient to deal first with the evidence of Mr McEvoy. On all material issues, I reject it entirely. He was an untruthful witness. His evidence was false, contrived and self-serving.
  1. [206]
    His evidence of his involvement with AB having originated from her approaching him in a supermarket and there having ensued a conversation in which she enquired of him what he did; his describing his business and indicating that he was looking to expand; and concluding with her expressing an interest in investing in it, is extremely improbable.
  1. [207]
    So too is her having shortly thereafter insisted in his taking $30,000 from her so that her son would not become aware that she had it.
  1. [208]
    Even if one were to entertain the possibility that Mr McEvoy had such serendipity, the spending of all of that money within two weeks of its receipt by paying down existing debts of the business; the family mortgage; telephone accounts; and car loans is behaviour inconsistent with an entirely unexpected $30,000 investment for the purpose of expanding the business, having been received.
  1. [209]
    His evidence is also inconsistent with other evidence. The text messages which he denies seem to fit the context of his involvement with AB. There is no reason not to accept Mr Hains’ evidence in respect of the text messages. The only messages which Mr McEvoy was prepared to concede were those which he attempted to use to fit his exculpatory narrative.
  1. [210]
    His evidence was also inconsistent and self-contradictory. For example, he had contradicted himself as to whether it had been determined to end immediately the business arrangement with AB.
  1. [211]
    Mr McEvoy’s evidence to the Tribunal is also quite inconsistent with what he told the Board’s investigators when interviewed by them. The record of that interview is also in evidence.[35]  In it, the following was said:[36]

“MS: So when did you tell Janine of your business relationship with AB?

RM: I told her on, what happened was after getting back from seeing Tony on the 27th that night, the next morning, AB actually phoned me up and said her daughter in law wanted my driver’s licence and I said there’s no reason why I should give her my personal details, so I didn’t know what was that coming at and later in that day, I got a phone call from one of my accounts who said that a girl had just phoned up, name of her Jacinta, was enquiring about Victory Watches and myself.

MS:  What do you mean from your accounts?

RM:  Customers, customer.

MS:  Okay.

RM: This Jacinta was ringing up and he didn’t know what the call was all about and kind of wondering and thought he’d give me a ring and ask me what was happening and I explained that yeah, I’m looking for an investor and she was a person that I had seen the night before with her husband and they know the area and he, I said there’s a property down there that will be used for security and I said to, I knew that the suburb where it was, I forget the name of it now, but there was a suburb there and then he kind of questioned me and said is it AB and I said yes how do you know that and he, he straight away said warning signs had come up, just be careful of her and her family. 

MS:  Because?

RM: He didn’t explain.  He just said warning signs come up, be very careful.

MS:  And who is this person?

RM:  From my jeweller yeah, it’s at Casino. 

MS: And what’s the name of the person saying that… said this to you?

RM:  Lyle.

MS:  Sir Name?

RM:  McNamara yep.

MS:  Okay?

RM: And from then that kind of made me question what’s going on because if they’re asking for my driver’s licence - and she’s questioning - and also from him telling me that be careful, I started to think what’s happening here?  And from there I think AB phoned up later in the day to get me to ring her daughter in law to see if the forms had been signed and I said no, you’re dealing with your son, you make the call and ring up.  And that was that for that day.  That night I went home and I was still about worried about what this guy said and that’s when I, when Janine came home that night I said I have to explain something to you and I’ve been looking for an investor and I’ve been working on it, this person knows you and I have also been warned to be careful of her by one of customers.  And Janine asked me who it was and I told her who it was, AB, and she almost dropped dead straight away, she couldn’t believe it was her.  And she said what? Why are you dealing with this person, she’s a client of mine and I, then, I explained to her straight away I had no, no recollections of her telling me she was a client or she was seeing Janine, she said she knew her through friends and that’s all that we went on about.  And from there on, yeah Janine was very angry at me and the next day Janine tried to make contact with her and tell her that she knew about it and had to be ceased, has to stop and that’s the last contact we have with her.”[37]

  1. [212]
    That version of events has Mrs McEvoy informing him that AB was a client; not himself coming to the realisation that AB must have been a client of his wife’s thus precipitating his disclosure to Mrs McEvoy. It excludes the detail said to have been provided by his stockist that his daughter was the girlfriend of AB’s grandson. It also does not include that the stockist told Mr McEvoy that he knew her well enough to not ever do business with her, and that he told Mr McEvoy some things about her family that made Mr McEvoy very concerned about how she had represented herself to him. To the contrary, when asked by investigators what the stockist had said was the reason Mr McEvoy should be careful with AB, Mr McEvoy said that the stockist did not explain.
  1. [213]
    That version given to the investigator also made no mention of the “weird incident with the text message” on the return journey from the Sunshine Coast, and his undertaking to delete the text from his wife’s phone, and his actually doing that. One readily infers that no mention was made of that in the interview, because at the time Mr McEvoy was unaware that there was a record of that text message. I have no hesitation in finding that his later evidence about that text message was invented after he had knowledge of the existence of a record of the message for the purpose of creating a scenario in which Mrs McEvoy would not have seen it. It is yet a further reason to reject Mr McEvoy’s evidence about the circumstances surrounding the sending and deletion of that message.
  1. [214]
    It is entirely disingenuous for Mr McEvoy to give evidence in which he suggests that the failure to repay the $30,000 to AB was not a failing on his part, and which questions why AB would not make an effort. The evidence clearly establishes that Mr McEvoy and Mrs McEvoy were in severe financial difficulties at the time. The $30,000 was simply spent within days of its receipt. It was spent paying bills and deflecting creditors. Mr McEvoy was in no position to repay the $30,000 whether of his own initiative of upon request from AB. That is why it had not been repaid.
  1. [215]
    It is also entirely disingenuous that Mr McEvoy would draw attention to AB’s known psychological difficulties in an attempt to boost his own credit at the expense of hers.
  1. [216]
    Of course, Mr McEvoy’s false evidence was intended to provide support for Mrs McEvoy’s denial of any knowledge of the business arrangements between Mr McEvoy and AB before 28 May 2009 when she says Mr McEvoy disclosed them to her. The complete rejection of Mr McEvoy’s evidence, and the finding that it was contrived for that purpose, makes the rejection of Mrs McEvoy’s evidence also almost inevitable.
  1. [217]
    Like Mr McEvoy, the only text messages which Mrs McEvoy would concede were sent by her were those which she wished to use to fit her exculpatory narrative. In order to maintain her denial of any knowledge of, let alone involvement in, text messages that would betray her denials of AB’s involvement with Mr McEvoy’s business, Mrs McEvoy denied even the most innocuous of text messages which, when viewed in context with other text messages and her clinical notes, were quite obviously sent and received by her. Some of her reasons offered for why she would not have been the author of some of those texts, for example that she would not sign off as “Janine”, have been exposed as false.
  1. [218]
    When it is accepted, as it must be, that Mrs McEvoy sent and received those text messages, it is tolerably clear that she had knowledge of AB entering into financial business arrangements with Mr McEvoy.
  1. [219]
    The Victory business was first mentioned in January 2009. In early May, Mrs McEvoy is enquiring of AB if she had spoken to a friend about “Rod’s company.”
  1. [220]
    On 9 May she sent a text from which it is clear that she was hoping for something to “come along”, and observing that persistence usually pays off. This was in the context of AB having informed her that a friend was not in a position to invest in the business.
  1. [221]
    Very shortly after this, direct contact is established between AB and Mr McEvoy. On 12 May Mrs McEvoy texted AB about having spoken to Mr McEvoy and his being “onto it”. She also spoke of Mr McEvoy being “much more enthusiastic” and having found another couple who were interested.
  1. [222]
    Mrs McEvoy then told AB that she was feeling “quite comfortable with the whole thing”, and AB confirmed that she was also. On the same day, AB sent a text to Mrs McEvoy expressing that she felt “very comfortable with the person you found, the broker”, and stating that “he holds the solution now.” The inference to be drawn is that Mrs McEvoy was aware of the involvement of the mortgage broker and that AB was to borrow against her property for the purpose of investing the business.
  1. [223]
    Any doubt about that inference is removed by the next series of texts in which Mrs McEvoy expresses her understanding that AB was going to borrow as much as she could on the house because she would make more money by putting it into watches rather than real estate.
  1. [224]
    In the email that followed in which Mrs McEvoy said “That’s also why convincing Tony to also do it would be even better” demonstrates her knowledge of AB’s son and his interest in the property and the potential to also obtain investment funds from him secured against his interest in that property.
  1. [225]
    The text from AB to Mrs McEvoy on 14 May 2009 in which she speaks of matters relevant to her treatment but concludes by saying that she would drop the cheque into Mr McEvoy that morning, demonstrates Mrs McEvoy’s knowledge that her client was going to provide money to Mr McEvoy.
  1. [226]
    Mrs McEvoy’s text to AB on 27 May 2009 in which she says “Enjoy getting to know Rod today” can only be read as her knowing of the trip to the Sunshine Coast that Mr McEvoy and AB were taking that day. Given her earlier texts referring to Tony and the benefit of convincing him also to borrow and invest leads to the conclusion that Mrs McEvoy knew not only of the trip, but its purpose.
  1. [227]
    The text from AB later that they had survived and were on their way home sits comfortably in that context.
  1. [228]
    There was a further text message contained in Mr Hains’ schedule about which Mrs McEvoy was not asked in her oral evidence. It was sent on the morning of 12 June 2009 from Mrs McEvoy to AB. For all the reasons set out above, I accept that it was sent by Mrs McEvoy at that time. It reads:

“Noelene, I am very disappointed and confused by your silence.  If something is wrong, I deserve the respect of knowing what it is.  This is also not fair to Rod who you know is waiting to move forward with Victory.  You pursued this deal and need the income for your future.  I can’t think of any reason why you would completely stop all contact with me and I know that we have not done anything to cause your behaviour.  Please make contact ASAP, we are friends and there is nothing we could not talk about.  Avoiding me does not fix anything.  If I do not hear anything from you today, I will have to come around to see you and I really don’t want to invade your privacy.  Janine.”

  1. [229]
    That text message clearly demonstrates Mrs McEvoy’s knowledge of AB’s involvement in investing in her husband’s business. It expresses no disapproval of, or concerns about, that investment. It speaks in a way that suggests that the involvement may continue, contrary to any suggestion by the McEvoys that as soon as it was appreciated that AB was a client it was determined that the business arrangements must cease immediately. It confirms her understanding of, and acquiescence in, those arrangements.
  1. [230]
    Mrs McEvoy’s evidence that she wrote some text messages in a way which implied that she knew about the business arrangement was contrived in an attempt to create an explanation as to how there could come to be text messages on AB’s phone received from her which indeed did indicate that she knew about the business arrangements. It was intended to complement Mr McEvoy’s evidence that this was the only reason AB would have any text messages from Mrs McEvoy about the business deal.
  1. [231]
    Mrs McEvoy’s evidence of her lack of knowledge of and involvement in these matters must also be rejected. It too was contrived and self-serving. Like Mr McEvoy, Mrs McEvoy was not a truthful witness.
  1. [232]
    It is very concerning that Mrs McEvoy, as a psychologist facing disciplinary proceedings, would seek to exploit the psychological condition of her client in an attempt to have AB disbelieved. In her statement, Mrs McEvoy referred on a number of occasions to various statements in AB’s affidavit as delusional.
  1. [233]
    It is also concerning that Mrs McEvoy would give evidence that AB was not vulnerable. Her own clinical notes clearly contradict that evidence, as do the text messages. They resonate with vulnerability.
  1. [234]
    Having rejected the evidence of both Mr and Mrs McEvoy, it becomes an easier matter to accept that of AB. However, even in the absence of the clearly false evidence of the McEvoys, I would have little hesitation in accepting the evidence of AB on the material issues. She was a credible and reliable witness on those issues.
  1. [235]
    Whilst she frankly conceded that there were matters in her affidavit which she could no longer remember, on the detail of the central issues of her involvement with the McEvoys she has demonstrated a consistency which runs from the making of her initial handwritten notes, through her affidavit and in her evidence before the Tribunal. Of course, further confidence in accepting her evidence is provided through its corroboration by the text messages.
  1. [236]
    I readily accept that the events by which she came to be involved in investing in the business occurred as described by her in her evidence.

Findings on the grounds for disciplinary action

  1. [237]
    On the rejection of Mr and Mrs McEvoy’s evidence and the acceptance of AB’s evidence, the allegation set out in para 2(a) of the referral is established. In or around May 2009, Mrs McEvoy did engage in financial dealings and multiple relationships with AB, leading to impairment of the treating relationship, harm to AB and exploitation.
  1. [238]
    Although Mrs McEvoy’s involvement in the Victory Watches business was minimal,[38] her position as a director of the company which carried on the business made her directly interested in the provision of funds by AB.  However, even her indirect involvement in knowing of the arrangement and her acquiescence in it was in breach of the duty which she owed AB as her psychologist.  It was also, in the Tribunal’s view, exploitative of the relationship of trust between them.
  1. [239]
    That occurred in the context of the professional boundaries which Mrs McEvoy should have maintained having been blurred as evidenced by various text messages including those set out in para 2(d) of the referral. The text messages clearly demonstrate AB developing an emotional attachment to Mrs McEvoy and her family. The text messages no not demonstrate a discouragement or correction of this by Mrs McEvoy. Mrs McEvoys clinical notes demonstrate that on occasions Mrs McEvoy did seek to reaffirm professional boundaries when AB had previously arrived at the practice unexpectedly. However, the familiarity in the text message communications, including expressions of love by AB, demonstrate that professional boundaries were not maintained by Mrs McEvoy in 2009. Mrs McEvoy was content to exchange text messages of a purely personal kind and responded favourably to AB’s inappropriate expressions of emotion.
  1. [240]
    Most notably in this regard was the exchange on the morning of 27 May 2009, the day Mr McEvoy was to drive AB to her son’s home on the Sunshine Coast. AB had referred to Mrs McEvoy as “Janine my darling”; expressed love for Mrs McEvoy and her children from the seat of her soul; and signed off “with love.” Mrs McEvoy’s response was “Thanks that is beautiful. Enjoy getting to know Rod today.”
  1. [241]
    In the context of AB attempting to persuade her son to borrow against their jointly owned property for the purpose of investing in Mr McEvoy’s business, it is evident why Mrs McEvoy did not respond appropriately; and in fact responded completely inappropriately. She was completely conflicted and compromised. Engaging with AB in that way further exploited AB.
  1. [242]
    The inappropriateness of receiving such texts from AB and in responding in the manner she did, is established on Mrs McEvoy’s own evidence. She denied having received it, but said that had she done so it would have been “very alarming.” Similarly, although she denied having received the text message that said “Loving thoughts from Noelene”, she agreed that had it been received it would have set off alarm bells and she said she would have addressed it at the next appointment. As a matter of fact I find that she did receive it; and she did not address it. This is so also for other similar texts.
  1. [243]
    The inappropriateness of the text messages and their constituting a lesser standard of practice than might reasonably be expected of a psychologist is also established on the expert evidence, including that called in Mrs McEvoy’s own case. In a report exhibited to the affidavit of Mr Paul Joseph Stevenson, a psychologist, he refers to Mrs McEvoy having denied the text messages but says:

“However, had they occurred, I would agree that they would have been inappropriate, and would have constituted a lesser standard of practice than might reasonably be expected of a psychologist.”[39]

  1. [244]
    The agreement which Mr Stevenson expressed was with the opinion to the same effect expressed by Professor Graham Davidson called in the Board’s case.
  1. [245]
    Neither Mr Stevenson nor Professor Davidson expressed a concluded opinion as to whether a disclosure of her husband’s business dealings and an encouragement to co-opt others to invest in the business, or knowingly allowing her husband to engage AB in financial dealings while she was a client of hers, constituted a lesser standard of practice than might be reasonably expected of Mrs McEvoy by her professional peers. They did not do so on the basis that further information was required in order to establish, as a matter of fact, whether those things occurred. It is regrettable that neither expert seems to have been asked to express an opinion on the basis of identified facts which they were asked to assume were correct. It would then be for the parties to prove, or disprove, those underlying facts in the Tribunal proceedings. That is the manner in which expert evidence ought to be obtained.[40]
  1. [246]
    The failure to seek the expert’s opinions in this way in this case has resulted in reports which are themselves inquisitive in nature; which purport to make their own findings of fact; and, in the case of Mr Stevenson is argumentative. Such reports are of very little assistance to the Tribunal or courts. In any event, the Tribunal does not need to have expert evidence to reach a conclusion that conduct of a member of a profession is of a lesser standard than that which might reasonably be expected of the person by the public or the person’s professional peers.[41]
  1. [247]
    There was one further matter upon which Professor Davidson and Mr Stevenson were in substantial agreement. It related to whether Mrs McEvoy’s failure to consult a senior psychologist to discuss the management of a possible multiple relationship with AB, which was brought about by Mr McEvoy’s financial dealings with AB, constituted a breach of Standard C.3.2 of the Australian Psychological Society Code of Ethics 2007. Professor Davidson expressed the opinion that:

“Given the seriousness of the ethical concerns about the apparent multiple relationship, such a failure to seek professional supervision constitutes conduct that is of a significantly lesser ethical standard than might reasonably be expected of a psychologist.”[42]

  1. [248]
    Mr Stevenson, in his report, in a partial way, argued that Mrs McEvoy was being judged against the code of ethics of the society of which she had never been a member. That was so notwithstanding that he acknowledged that “the Board has always adopted the APS Code (in preference to developing its own)”. He said “it can be argued that Mrs McEvoy did not have access to the Code at the time of the alleged breaches.” When pressed on this point in cross-examination, Mr Stevenson accepted that the Code had been readily available on the society’s website free of charge. However, he only had knowledge of it being so available since July 2010. He did not know what the situation was before then. He said in respect of that issue “I merely posed the question.” I am quite satisfied that the Code was readily available to Mrs McEvoy at all relevant times.
  1. [249]
    Another issue which Mr Stevenson raised in his report was that non-members of the APS may have a conscientious objection to the APS and that he considered it “a presumption by the Board that all psychologists will be willing to adopt the APS Code, whether members or not.” There was no evidence that Mrs McEvoy was such a conscientious objector. The law permits a National Board to develop and approve codes and guidelines.[43]  All of this seemed driven toward the fact that, as his report revealed, he himself had “argued as far back as 1993, that the Board should develop its own Code of Ethics” because the APS was one of only several associations representing psychologists. 
  1. [250]
    For an expert witness to raise such argumentative irrelevancies in a report to be tendered as evidence in Tribunal (or court) proceedings, is entirely unhelpful.
  1. [251]
    In any event, Mr Stevenson agreed with Professor Davidson’s suggestion that Mrs McEvoy’s failure to seek the advice of a senior psychologist could be in breach of Standard C.3.2. However, Mr Stevenson was of the opinion that such a breach arose only from 28 May. This was because he was satisfied from his interview with Mrs McEvoy and her clinical notes that she was unaware of her husband’s business dealings with AB prior to his disclosure to her on that date. Because, on the Tribunal’s factual findings, Mrs McEvoy did have knowledge of those dealings well before 28 May, Mrs Stevenson’s qualification as to the period of this breach does not apply.
  1. [252]
    The Board’s allegation that Mrs McEvoy behaved in a way that constitutes unsatisfactory professional conduct has been clearly established. She engaged in conduct which was of a lesser standard than that which might reasonably be expected of her by the public and her professional peers. Her professional conduct demonstrated a lack of adequate knowledge, judgement and care in the practice of her profession.
  1. [253]
    Grounds for disciplinary action have been established.

Disciplinary action

  1. [254]
    The Tribunal will determine the appropriate disciplinary action to take and issues of costs after receiving written submissions from the parties. Those issues will be determined on the papers.
  1. [255]
    The Tribunal directs:
  1. The Psychology Board of Australia is to file and serve an affidavit containing any further evidence upon which it wishes to rely on the issues of disciplinary action to be taken against Mrs McEvoy and costs, together with written submissions (not to exceed 10 Pages) by 4.00pm on 10 March 2017.
  1. Mrs McEvoy is to file and serve an affidavit containing any further evidence upon which she wishes to rely on the issues of disciplinary action to be taken against her and costs, together with written submissions (not to exceed 10 Pages) by 4.00pm on 31 March 2017.
  1. The Board is to file and serve submissions in response by 4.00pm on 7 April 2017.
  1. The issues of disciplinary action to be taken against Mrs McEvoy and costs will be decided on the papers.

Footnotes

[1]A ground for disciplinary action under s 124(1)(a) of the Health Practitioners (Disciplinary Proceedings) Act 1999.

[2]Exhibit JMM3 to the affidavit of the respondent.

[3]Exhibit NCS-5 to AB’s affidavit.

[4]Paragraph 99.

[5]Exhibit NCS-6.

[6]AB had a real estate licence.

[7]JMM-3 to Mrs McEvoy’s affidavit.

[8]This is supported by Mrs McEvoy’s treatment notes.

[9]NCS-9.

[10]NCS-10.

[11]NCS-11.

[12]Transcript 1-33, LL 4-10.

[13]Transcript 1-34, L 5.

[14]For example see Transcript 1-103 to 1-104.

[15]Curriculum vitae: Daniel Hains; Ex. DNH-1 to Ex. 4.

[16]Report of Daniel Hains; Ex. DNH-2, s 3.1.

[17]Transcript 1-4, LL 23-33.

[18]The times recorded in the schedule are co-ordinated universal time (UTC) or Greenwich meantime.  To translate those times into local Queensland time 10 hours must be added.

[19]DMH-2, para 3.5.3.

[20]Statement of Janine McEvoy, para 19.

[21]Transcript 17 September 2014 p 56, ll 30-34.

[22]Transcript 17 September 2014 p 63, ll 23-45.

[23]Transcript 17 September 2014 p 58, ll 38-45.

[24]Statement of Rodney John McEvoy paragraph 14.

[25]Ibid at para 15.

[26]Ibid at para 16.

[27]Ibid at para 18.

[28]Ibid at paras 19-20.

[29]Ibid at para 22.

[30]Ibid at para 23.

[31]Transcript 3-37, ll 33-36.

[32]Transcript 3-56, ll 16-29.

[33]MBO-65.

[34]MBO-106.

[35]MBO-50.

[36]In the record of interview, the initials “MS” are used for the interviewer and the initials “RM” are used for Mr McEvoy.

[37]Record of Interview paras 255-270.

[38]MBO-83: Report of Andrew Fielding, Liquidator of Lake Beach Pty Ltd which carried on the business of Victory Watches.

[39]At para B.3.4.

[40]Ramsay v Watson (1961) 108 CLR 642 at 648-649; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [64] – [67] per Heydon JA (as His Honour then was).

[41]Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191.

[42]Para G(ii).2 of Professor Davidson’s report; Exhibit GRD-3 to his Affidavit.

[43]Health Practitioner Regulation National Law s 39.

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Editorial Notes

  • Published Case Name:

    Psychology Board of Australia v Janine Maree McEvoy

  • Shortened Case Name:

    Psychology Board of Australia v McEvoy

  • MNC:

    [2017] QCAT 473

  • Court:

    QCAT

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    17 Feb 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
1 citation
Jump To
Cite 1 - (2001) 52 NSWLR 705
Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191
1 citation
Jump To
Cite 1 - [2013] QCAT 191
Ramsay v Watson (1961) 108 CLR 642
1 citation
Jump To
Cite 1 - (1961) 108 CLR 642

Cases Citing

Case NameFull CitationFrequency
Hart v Queensland Building and Construction Commission [2022] QCAT 2382 citations
Valuers Registration Board of Queensland v Murphy [2023] QCAT 862 citations
1

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