Casano & Antipov (No 3)

[2015] FamCA 767

FAMILY COURT OF AUSTRALIA

CASANO & ANTIPOV (NO. 3) [2015] FamCA 767

FAMILY LAW – EVIDENCE – Whether Dr G should be available for cross-examination – funding for Dr G to be available for cross-examination

Family Law Act 1975 (Cth)

APPLICANT: Mr Casano

RESPONDENT: Ms Antipov

INDEPENDENT CHILDREN’S LAWYER: Ms Rowley

FILE NUMBER: PAC 3528 of 2012

DATE DELIVERED: 9 September 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 9 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Greenaway

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Guterres

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW Sydney Central Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Faloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rowley of Rowley & Associates

IT IS NOTED that publication of this judgment by this Court under the pseudonym Casano & Antipov (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3528 of 2012

Mr Casano

Applicant

And

Ms Antipov

Respondent

REASONS FOR JUDGMENT

1. I would be very happy to say that, in my view, Dr G is a critical witness.  The first report of the family consultant and the second report both raise as important issues the mental health of the parents and in particular the father.  In these circumstances, Dr G was engaged and he was the expert agreed to by both parties.  In the concluding paragraph of his report dated 26 September 2013, Dr G said “there were numerous concerns regarding the father’s mental state”.  He also said:

   I did form the view that the father’s parenting capacity had been significantly impacted upon by his personality vulnerabilities and probable delusional disorder. Given the father’s view regarding treatment, there was no indication that this was amenable to change.

2. He also went on to say “it is difficult to predict risk in such circumstances”.

3. Although these are edited quotations from the doctor’s conclusion and there are many other views expressed by him, those views are, in my view, of significance.

4. It is also noted that Dr G’s report is now nearly two years old, and there have been many events since that report and there has also been extensive cross-examination at this stage only of the father.  It is also clear that this matter will not conclude this week and is unlikely to conclude this year. 

5. In these circumstances, the issue of interim orders may very well arise.  At the very least, the issue of whether the current circumstances are consistent with the child’s best interests is a live one.  Mr J, the family report writer, in his recent report says that the child shows attachment to both parents and enjoys spending time with each.  He goes on, however, to say that he, the child:

   …has outgrown the present weekly shared arrangements and seems to be reacting negatively to constant changeovers between adults in conflict. 

6. The family report writer refers to both parents reporting that the child is displaying regressive behaviour after contact both ways and that each blames each other, but the family report writer opines that “the root cause is probably [the child’s] own growing perceptions and reactions”.  Mr J also says that comment on Dr G’s professional conclusions is outside his area of expertise.  But both experts refer to and are mindful of a matter of particular significance of the – and this is in the words of Mr J:

   …probable future impact upon [the child] should his father persist in seeking to validate his negative opinions of the mother by involving [the child] in numerous medical examinations. 

   Mr J describes the situation as becoming untenable, particularly without clear definitions of parental responsibility in this regard.

7. While Mr J is a very experienced family consultant, his professional background is as a social worker.  In circumstances where it seems to have been recognised by all parties that the issue of mental health is a very significant one and that the only impediment to Dr G providing a current expert opinion is a matter of cost, it would be of great concern to me if I were required to determine the matter without the benefit of cross-examination of Dr G and a current opinion. 

8. In my view, Mr J is not an appropriate substitute expert, nor does he purport to be.  I would recommend in strong terms that the parties between them and including the Legal Aid Commission find a way to fund Dr G’s attendance in these proceedings and that the issue be dealt with as a matter of urgency given that there are only three days of hearing left in the matter and in circumstances where it is unlikely to be completed within the allocated time.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 September 2015.

Associate: 

Date:  17 September 2015