Caito and Sauber

[2020] FCCA 694

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAITO & SAUBER [2020] FCCA 694

Catchwords:
FAMILY LAW – Parenting – application for recovery order – best interests of the child – where father unilaterally relocated child – where child suffers from serious medical condition putting her at risk of death – where child has been exposed to parent’s conflict – where child is a relatively mature age – appropriate step is to ascertain child’s wishes from independent source.

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Applicant: MR CAITO

Respondent: MS SAUBER

File Number: DNC 152 of 2011

Judgment of: Judge Young

Hearing date: 10 March 2020

Date of Last Submission: 10 March 2020

Delivered at: Darwin

Delivered on: 10 March 2020

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Mr Barry

Solicitors for the Respondent: Darwin Family Law

ORDERS

1. That the father facilitate the child X born … 2006 (“the child”) telephoning the mother when the child wishes.

2. That pursuant to s.68L(2) of the Family Law Act 1975, the interests of the child be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the child's interests.

3. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

4. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

5. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

6. That pursuant to s.11F of the Family Law Act 1975, the parties and the child do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on … 2020 at 9.00am with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance.

7. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

8. That the father is to arrange at his own expense for himself and the child to return to Darwin for the purpose of the conference

9. That the parties be at liberty to inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) be at liberty to inspect and photocopy the document produced by Territory Families in response to the Notice of Risk filed in these proceedings NOTING THAT this information is confidential and cannot be disclosed to any other person or entity without an Order of this Court and NOTING penalties may apply pursuant to s.121 of the Family Law Act 1975 if the report is printed or published other than as directed in these proceedings

10. That pending further Order, the parties’ legal representatives are restrained from providing a copy of the document to any other person.

11. That matter be adjourned to 12 May 2020 at 10:00am for interim hearing in relation to who the child lives with.

IT IS NOTED that publication of this judgment under the pseudonym Caito & Sauber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 152 of 2011

MR CAITO

Applicant

And

MS SAUBER

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for a recovery order concerning a child who is nearly 14 years old.  She will be 14 in June.  It is clear she suffers from a very serious illness according to an affidavit from a paediatrician, Dr A, who treats her.  She was admitted to hospital in the middle of 2019 as a consequence of an eating disorder.  Dr A said she was at risk of death at that point.

3. The parents have completely failed to shield this child from their conflict, which appears to have been going on for many years.  The child is extremely vulnerable; that is clear.  She is at risk of death from her illness.  In those circumstances the father, without consulting the mother, but more tellingly in my view without consulting the child’s paediatrician, who lives in Darwin it would appear, unilaterally moved the child’s residence to Town B in Western Australia in breach of existing orders.  On the face of it, it appears to be a very reckless decision.  However, the material from Dr A suggests that the child has improved.

4. What I take to be a shared care arrangement ceased and the child began living with her father towards the middle of last year.  This was after what appears to have been a dispute between the child and her mother when the mother attempted to ensure that the recommendations of the child’s then-paediatrician were followed.  The child was resistant, which as from my reading of Dr A’s report would appear to be one of the characteristics of a person suffering from the eating disorder, that is, resistant to treatment.  The child then apparently relocated herself into her father’s care.  

5. The father’s affidavit says that the child is content in Town B and is doing well.  One of the issues of particular concern in this case would appear to be the opinion expressed by Dr A in his affidavit filed on 6 March.  This is that X has a medical condition that can affect her judgment, and I quote:

   “X has a medical condition that can affect her judgment, and it is a condition that thrives in discontent among family members as it detracts attention from the disorder and allows it to thrive.” 

6. The concerning aspect is that what has happened appears to be quite consistent with that description, though I do not propose nor can I reach any conclusion about whether, in fact, that is what is happening.

7. I think in the circumstances, given that there is an assertion that X wishes to remain living in Town B with the father, I think the appropriate step is to ascertain the child’s wishes as best I can from an independent source.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  26 March 2020