Zlotnik and Gerasimov

[2018] FamCA 987

FAMILY COURT OF AUSTRALIA

ZLOTNIK & GERASIMOV [2018] FamCA 987

FAMILY LAW – PARENTING – Interim – Where the mother makes an oral application for an updated Chapter 15 Family Report in circumstances where the original report was more than 3 years old– Where the child is six years old – Where the wife seeks to pay for half of the report - Where the father asserts that he cannot pay for the other half – Where the court finds that the report should be obtained and that the father has sufficient income to pay for the report – The father’s application that the treating therapist provide a report is dismissed but the treating therapist is requested to respond to any questions from the single expert.

Family Law Act 1975 (Cth)

APPLICANT: Mr Zlotnik

RESPONDENT: Ms Gerasimov

FILE NUMBER: SYC 503 of 2015

DATE DELIVERED: 10 October 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 10 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Genuine Legal

Orders

(Orders made 10.10.18)

1. On a final basis, by consent, the parties have equal shared parental responsibility for the child B born … 2012 (the child) and, subject to any other court order, the parents are to jointly agree on decisions involving major long-term issues concerning the child such as where the child goes to school, major health issues, religion, any possibility of the change of his name and moving away a distance that makes orders for each of the parents to spend time with the child significantly more difficult.

2. Pending further order, by consent, the mother and the child be allowed to relocate to Suburb K, New South Wales or a suburb close by to Suburb K, after completing permanent work transfer from … office in Sydney CBD to … site in Suburb L, New South Wales as confirmed by letter from the HR Department of the … and forwarded to the father.

3. On a final basis, by consent, the parties nominate each other and one other additional person from each side as an emergency contact authorized to pick up the child, and provide each other with the full name, home address and mobile number of that additional person every time signing of an enrolment form is required.

4. Pending further order, the child spend time with the father:

   4.1.From 9am 26 December 2018 to 9am 2 January 2019;

   4.2.For one half of each holiday at the conclusion of terms 1, 2 and 3 as agreed to between the parties and failing agreement for the first half of those holidays.

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.

10. Applications 7 and 8 as sought in the father’s Application in a Case filed 8 October 2018 are dismissed.

11. I reserve my decision in relation to applications 2(a) and 3 of the father’s Application in a Case filed 8 October 2018.

12. Otherwise the father’s Applications in a Case filed 8 June 2018 and 8 October 2018 are 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

EX TEMPORE REASONS FOR JUDGMENT

1. In relation to the father’s (Amended) Application in a Case, filed 8 October 2018, orders 1, 2(b), 4, 5 and 6, as sought, were resolved by consent.

2. The mother has made an oral application before me for an order that an updated report be prepared by Dr E for the purposes of it being available at the final hearing of this matter. The father opposed this application and seeks that the court instead order that the therapist who is providing non-reportable therapy to the parents and the child provide a report to the court.

3. Dr E provided the court with a report in June 2015 and a copy of that report is in evidence before me. That report is 34 pages and makes a series of recommendations. At the time that report was prepared, the child, the child, was 3 years of age, he is now 6 years of age. The report contains a number of recommendations including for example:

   3.1.A recommendation that the child live with the mother; and

   3.2.That the child transition to an arrangement where he spends substantial and significant time with the father.  Dr E, at that time, was suggesting that an end point might be that he spend five nights per fortnight with his father. For example, alternate weekends Friday afternoon to Tuesday morning and a weeknight on the other week and half the school holidays.

4. Dr E also commented on the father’s mental status and raised in his report the issue of the possibility of the father having a narcissistic personality style and the impact that that style could have on others and on himself. He recommended that the father attend a skilled therapist to assist him in that regard but three years later the father has not taken up that recommendation. As foreshadowed in his most recent application, the father may now intend to do so.

5. On 7 May 2018, I made an order that the parties do whatever is necessary to arrange for the child and themselves to have psychological therapy for a further 10 sessions with Dr M and for each of the parties to pay for one half of the cost of those sessions and I ordered that that therapy not be reportable.

6. Inquiries made today by the lawyer for the mother indicate that if an order was made, Dr E should be able to update his report by April 2019. If that happened, subject to judicial resources there might be able to be a hearing in this matter sometime towards the middle of next year. Dr E has indicated that a full report would possibly cost in the vicinity of $15,400 although his hourly rate is $660 per hour and it may be that a shorter updated report would cost less than that ceiling amount.

7. It would greatly assist if the court had Dr E’s updated consideration as to matters relevant under s 60CC(2) and (3) of the Act including any further or updated observations in relation to the father’s personality traits and the effect (if any) they might have upon the father’s parenting capacity.

8. There is, however, an issue arising as to whether Dr E’s report can be paid for. The mother has indicated that she will be prepared to pay up to half of the amount of Dr E’s report. The father says that he cannot pay the other half. On the face of the material that I have I am not convinced that that is so. The mother, of course, is paying for a lawyer. The father is not paying for any legal representation.

9. The father, when the matter was listed before me on 23 August 2018, responded in this way to questions that I asked him:

   HIS HONOUR:   What do you do?

   [MR ZLOTNIK]:   I am [a] consultant.  I work [as a consultant].

   HIS HONOUR:   What’s your income, approximately, per annum?

   MR ZLOTNIK:   Last year, I made around 120,000.

10. The father explained to me today that that was his estimate at that time for the financial year ending 30 June 2018. He tells me today from the bar table that he believes a more accurate figure is $114,000 a year. He has filed a financial statement which has a weekly figure of $746 per week which commutes to $38,792 per year. I do not accept that as being a realistic estimate of the father’s actual income or earning capacity on an annualized basis. One thing that lends support to that view is Annexure E to the father’s affidavit which is a contract at a rate of $730 per day plus GST, five days a week for the period of time between 17 September 2018 to 1 February 2019. There is a notice period in that contract at four weeks. That contract is at a rate of something around $189,000 per annum if it was a permanent position, which I accept it is not, but still it is at a far higher rate than the annualized income asserted by the father in his financial statement. I assess the father as having the capacity of contributing half of the costs of Dr E and for the purposes of this case, it is an important piece of evidence which I would prefer the court not to do without. Dr E will give a holistic assessment and considered recommendations as a single expert which will assist in making some determination as to what ultimate arrangements should be made on a final basis in the best interests of the child.

11. In relation to the input of the treating therapist, I will make an order requesting her to answer any questions that Dr E asks of her. I do not intend to be descriptive about what Dr E should ask Dr M and accordingly, I will not be making orders 8 and 9 as sought by the father in his Amended Application in a Case of 8 October 2018. I am not going to require the treating therapist to provide a report on the matters requested by the father primarily because the original order made was for the therapy to be non-reportable. I shall dismiss orders 8 and 9 as part of the general dismissal of the balance of the father’s Application in a Case.

12. Application 7 made in the father’s application on 8 October 2018 seeks an order in the following terms:

    7.    That the father make arrangements to be examined by clinical psychologist (“therapist”), and:

    a.undertake a psychometric test such as Narcissistic Personality Inventory (NPI);

    b.adduce to evidence the expert witness report from the therapist by 2 November 2018;

    c.undertake any treatment, as and if recommended by the therapist.

13. I note that the father has told me today that he wants to make arrangements to implement the recommendation that Dr E made three years ago for the father to engage an experienced therapist. Application 7 is premature until he has a report from a therapist he seeks leave to tender. It is not appropriate to deal with an application for leave to adduce evidence from an adversarial expert or to seek to adduce evidence from a treating professional until that information is to hand.

14. In relation to the father’s Application in a Case, filed 8 October 2018, for paragraph 2(b), both parents accept that in relation to a school holiday order, the father already has an order to have the child with him from 12 January to 20 January 2019 and overnight for New Year’s Eve; that order having been made on 26 June 2018. After discussions, it was agreed the child should also be with his father from 26 December 2018 and he can return on 2 January 2019 and also for one half of term 1, 2 and 3 with the parties to agree on which half. If they are unable to agree which half the father can have the first half.

I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 10 October 2018.

Associate: 

Date:  11.10.18