Letsos and Vakros (No 2)

[2012] FamCA 790

FAMILY COURT OF AUSTRALIA

LETSOS & VAKROS (NO. 2) [2012] FamCA 790

FAMILY LAW – EVIDENCE – Family Report – Where the father no longer has confidence in the expert appointed to prepare a family report – Where the process of reporting in proceedings in relation to children requires trust and respect between the parties and the expert – Orders that a family report be prepared either by a different single expert agreed between the parties or by a family consultant nominated by the Director of Court Counselling

Family Law Act 1975 (Cth) Div 12A

APPLICANT: Mr Letsos

RESPONDENT: Ms Vakros

INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate & Associates

FILE NUMBER: SYC 2710 of 2007

DATE DELIVERED: 3 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 3 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Lees & Givney

INDEPENDENT CHILDREN’S LAWYER Ms Weate

Orders

IT IS ORDERED

1. That the orders which were made in relation to the appointment of Dr R as a single expert on 12 July 2012 they being orders 1, 2, 3, 4 ,5, 6 and 7 made on that day be vacated.

2. That in the event that within 7 days of the date hereof the parties agree on the appointment of a single expert and the Honourable Justice Rees is provided by the independent children’s lawyer in chambers with a minute of orders signed by both of the parties and the independent children’s lawyer an order will be made for the appointment of that single expert.

3. That in the event that no such order has been made within 7 days of the date hereof an order will be made in chambers for the preparation of a family report by a Family Consultant nominated by the Director of Court Counselling.

4. That the matter be listed for hearing before the Honourable Justice Rees for 3 days commencing on 3 December 2012.

5. That leave be granted to the independent children’s lawyer to apply on short notice by arrangement with the Associate to the Honourable Justice Rees in the event that it appears that there is any matter which will prevent the matter being ready to proceed on the first day of the hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Letsos & Vakros 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 SYDNEY

FILE NUMBER: SYC 2710 of 2007

Mr Letsos

Applicant

And

Ms Vakros

Respondent

REASONS FOR JUDGMENT

1. In the matter of Letsos & Vakros, there is an issue about the appointment of an expert for the preparation of a report.  Orders have been previously made for the preparation of a report by Dr R, a child and family psychiatrist, who was able to have a report completed in time for the matter to be listed in the first week of December.  Those orders were made by consent.  Before me today the father, Mr Letsos, has indicated that he no longer has confidence in Dr R and that he withdraws his consent. 

2. Initially I was urged by the solicitor for the mother, to make an order that Dr R be the single expert, but I have declined to do so.  The reason that I decline to order Dr R to be the single expert is that it seems to me that the process of reporting in proceedings in relation to children requires a degree of trust and respect, between parties and the expert, and if there is no degree of trust or respect from one of the parties towards the expert, then the process will be of little use to the Court in the ultimate.

3. I have given the parties the opportunity to see if they can agree upon another psychiatrist and they have not, thus far, been able to do so.  The reason which is advanced for the appointment of a psychiatrist rather than a family consultant to prepare the report is that it is asserted, but not proved, by the solicitor for the mother that in the District Court in proceedings on an unspecified date, the father pleaded in mitigation, in relation to criminal charges, that he had some psychiatric difficulty.  That is not, in my view, sufficient ground in the circumstances of this case to adjourn the proceedings and delay the final hearing in relation to the issues of the time the father should spend with a young child.

4. I am required to balance and, indeed, to positively (pursuant to Division 12A) direct the way in which the matter will proceed.  In my view, the interests of the child and the interests of justice require that the matter be listed for hearing at the first available opportunity.  The first available opportunity is the first week in December and I propose to have the matter ready for listing on that day. 

5. The only way in which I can be sure that the matter will be ready for listing is to make an order for the preparation of a Family Report and I propose to do so, although I will allow the opportunity for the father to make his own inquiries about Dr K and ascertain whether or not he is prepared to agree to Dr K’s being the expert appointed. 

6. If, at the end of seven days from the date hereof, there has been no Minute of Order filed for the appointment of Dr K and the preparation by him of a report, then I will make an order in chambers for a family report to be prepared.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 3 August 2012.

Associate: 

Date:  18 September 2012