Zlotnik and Gerasimov

[2019] FamCA 806

FAMILY COURT OF AUSTRALIA

ZLOTNIK & GERASIMOV [2019] FamCA 806

FAMILY LAW – PARENTING – Procedural – Where the father sought an order for the preparation of a report by a family consultant in circumstances where he had chosen not to attend interviews for the preparation of an updating Chapter 15 Expert Report – Where the father’s application for an order for a report by a family consultant is dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Zlotnik

RESPONDENT: Ms Gerasimov

FILE NUMBER: SYC 503 of 2015

DATE DELIVERED: 5 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 24 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Genuine Legal

Orders

Order made 24.10.2019

1. The father’s oral application for the preparation of a report pursuant to s 62G(2) Family Law Act 1975 (Cth) be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zlotnik & Gerasimov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 503 of 2015

Mr Zlotnik

Applicant

And

Ms Gerasimov

Respondent

REASONS FOR JUDGMENT

1. On 24 October 2019, the father sought leave to make an oral application for the appointment of a family consultant to prepare a report pursuant to s 62G(2) Family Law Act 1975 (Cth) (“the Act”). That application was opposed by the mother. I granted the father leave to make the oral application but dismissed the father’s oral application and on a busy list day, reserved my reasons. I now provide those reasons.

2. The principal proceedings are competing applications for final parenting orders in relation to the child, B born in 2012 (“the child”).

3. Currently, the child lives with the mother and spends time with the father during school term four nights a fortnight.

4. Dr E had prepared a report in relation to the child in June 2015.

5. On 10 October 2018, the mother made an application that an order be made for Dr E to prepare an updating report. The father opposed that order being made.

6. For reasons given ex tempore on 10 October 2018, orders were made in the following terms:

   5.Pursuant to part 15.5 of the Family Law Rules, Dr E be appointed as a single expert to prepare an updating report in relation to the child and that in preparing that report to the Court, the Expert is requested to consider any relevant matter pursuant to s 60CC(2) and (3) Family Law Act, the mental status of each of the parties and the effect that that may have on either of the parties’ parenting capacity and any other matter the Expert considers relevant. The Expert is asked to speak to Dr M in relation to the therapy she has provided to the parents and the child.

   6. The parents are to ensure that the child and any other person (including the father’s de facto partner) attend interviews scheduled by Dr E.

   7. Each party is to forward to Dr E a copy of all affidavits filed by each party since Dr E prepared his previous report. The lawyer for the mother is to forward a copy of my ex tempore reasons and my reserved reasons when published to Dr E.

   8. The parties equally pay the costs of Dr E providing services pursuant to these orders.

   9. I request Dr M to provide the single expert Dr E with any answers to any questions that Dr E wishes to ask.

7. The matter was to be relisted once the updating report from Dr E was available.

8. As no report had been sent to the Court, inquiries were made as to whether or not interviews had yet taken place with Dr E. When an indication was received that no interviews had taken place, the parties were advised that the matter was to be relisted for a further procedural event.

9. During that event, the father made clear that the reason Dr E’s report had not been prepared was as a result of him taking the decision not to attend appointments for interviews for the preparation of the report. That is, the father openly indicated that he was not prepared to abide by Order 6 made 10 October 2018.

10. It was in this circumstance that the father made the oral application that a family report be prepared pursuant to s 62G(2) of the Act.

11. During submissions, the father referred to the previous involvement in the case of a family consultant, Ms N. Ms N had indeed prepared a Child Responsive Program Memorandum on 20 August 2015, however, under the heading “Future directions”, Ms N observed:

    27.The Single Expert Report of Dr E provides a full assessment of the family and [the child’s] relationship with his maternal grandmother, mother and father and father’s partner. If a further update report is required by the court this should ideally be provided by Dr E.

    28. If the parents are not able to reach agreement and the matter continues in the court, and ICL may be of assistance because of the young age of the child.

12. The father’s unilateral attitude has resulted in the order for the preparation of a further updated report being frustrated. It is not appropriate in the circumstances to exceed to an application by the father that a report be prepared by a family consultant.

13. In those circumstances, the father’s application for the preparation of a report pursuant to s 62G(2) of the Act was dismissed.

14. During the procedural event, the father drew attention to paragraph 266 of Dr E's June 2015 report. Dr E had recommended that the father attend a therapist skilled in assisting adults with mental health or personality difficulties, to discuss the concerns that he had raised in the report about his narcissistic personality style and the impact of his personality style on others and on himself. The father, without objection, tendered in evidence what became Exhibit 5 which was a report from a psychiatrist, Dr O. Dr O indicated that from a diagnostic perspective, he was unable to give an accurate direct diagnosis of the father’s mental status. He said his impression was based on the history provided by the father in interview. Based on the father’s presentation at interview, Dr O doubted that the father fulfilled the criteria for a narcissistic personality disorder.

15. In addition, the father made an application for the appointment of an Independent Children’s Lawyer.

16. Given that, unfortunately, it is likely that this matter will proceed to final hearing without the benefit of having any expert report and given the clear level of conflict between the parties and taking into account the original recommendation of Ms N in 2015, Legal Aid NSW was requested to arrange that the child be separately represented.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 5 November 2019.

Associate: 

Date:  5 November 2019