Gerver & Gerver (No 2)
[2025] FedCFamC1F 380
•6 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gerver & Gerver (No 2) [2025] FedCFamC1F 380
File number(s): SYC 6529 of 2024 Judgment of: CAMPTON J Date of judgment: 6 June 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father filed an Application in a Proceeding seeking leave to provide a copy of the court child expert report to his treating psychologist – Where the father has capacity to adduce evidence from his treating psychologist pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the father has not adduced any evidence from his treating psychologist – Where the mother makes very serious allegations of family violence as recorded in the court child expert report – Where there is great sensitivity in any potential dissemination of evidence in the court child expert report – Application in a Proceeding dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.01 Cases cited: Gerver & Gerver [2025] FedCFamC1F 379 Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 6 June 2025 Place: Sydney Solicitor for the Applicant: Mr Norkin of Status Libertatis Solicitor for the Respondent: Ms Nadeem of Chidiac Legal Pty Ltd Solicitor for the Independent Children's Lawyer: Ms Green of Russell Kennedy Lawyers ORDERS
SYC 6529 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GERVER
Applicant
AND: MS GERVER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
6 JUNE 2025
THE COURT ORDERS THAT:
1.The father’s Application in a Proceeding filed on 29 May 2025 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gerver & Gerver (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine an Application in a Proceeding filed by the father on 29 May 2025 seeking an order that leave be granted for him to provide a copy of the report of the court child expert, Ms B dated 14 April 2025 to his treating psychologist, Ms C. To give context to the application, the order made releasing the report of the court child expert was in the following terms:
2.Pursuant to Rule 8.11(5) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, copies of the Family Report by [Ms B] (Court Child Expert), dated 14 April 2025 (“the Report”) may be given to:
(a) the Respondent Mother;
(b) the lawyers for the parties;
(c)the lawyers representing the child in the proceedings under s 68L of the Act;
(d)an authority established by or under a law of a State or Territory for the purposes including the provision of legal assistance;
(e) a Children’s Court (however described) of a State or Territory;
(f) a prescribed child welfare authority; and
(g) the convenor of any legal dispute resolution conference,
AND unless otherwise ordered, no person shall release the Report or provide access to the Report to any other person.
3. The report is to remain in the possession of the lawyers and the Respondent Mother at all times and the legal practitioners are restrained from providing a copy of the Report to the Applicant Father until further Order of this Court.
4. The lawyers are directed to arrange for the parties to attend in person to be shown and thereafter to discuss the contents of the Report.
5. Should the Applicant Father wish to inspect the Report, he may view the report either in the presence of his lawyer or make an appointment to attend the Sydney Registry Exhibits (Subpoena) room by sending an email to […]@[…] at least three days prior to the intended appointment date.
6. Except with the Court’s permission, no person is to release the Report or provide a copy of the Report or access to the Report, to any person other than those mentioned in these Orders.
(As per the original)
These reasons assume familiarity with the reasons delivered earlier today in Gerver & Gerver [2025] FedCFamC1F 379 as to the making of a discretionary s 102NA order for the purposes of the forthcoming trial scheduled to commence on 29 September 2025. The relief sought by the father is opposed by the mother and the Independent Children’s Lawyer.
The father has identified by way of his affidavit filed in support of the Application in a Proceeding filed on 29 May 2025 and in submissions today that the primary purpose of the provision of the report of the court child expert to his treating psychologist is for the forensic purpose of obtaining advice as to how to address the serious allegations of family violence made by the mother and to formulate what he describes as “a psychological response, preparing any necessary counter arguments, and addressing the issues raised in the report”. He concedes that any therapeutic application of the contents of the report are very much ancillary to his primary objective.
As developed during the course of the hearing, the father has the capacity to adduce evidence from his treating psychologist in compliance with r 7.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), as to:
(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis.
The father has not adduced any evidence as to any therapeutic request by the psychologist to access the court child expert’s report. He has not adduced evidence that he has spoken with the treating psychologist in relation to the court child experts report or the proceedings. He has not adduced any direct or indirect evidence from the treating psychologist as to their agreement to engage in the forensic processes he proposes.
I am mindful of the very serious allegations of family violence made by the mother as recorded in the court child expert’s report and as to the sensitivity in any potential dissemination of that evidence in all the circumstances of this particular proceeding.
On balance, I am of the view that it is not in the interests of justice in this matter to permit the father to potentially weaponize the contents of the court child expert’s report.
These are parenting proceedings. It is uncontroversial that the children will live with the mother. The mother gives probative evidence that will direct the parenting enquiry, irrespective of the establishment of the allegations that the father poses an unacceptable risk of harm to the mother and the children, as to an unacceptable risk to her parenting capacity as the uncontested parent with whom the children would live diminishing if the father spends time with, communicates with, or has the benefit of a relationship with the children.
For all of the above reasons the Application in a Proceeding of the father filed on 29 May 2025 is dismissed.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 10 June 2025
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