Sauber and Caito (No.2)

[2020] FCCA 1343

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAUBER & CAITO (No.2) [2020] FCCA 1343

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 of relatively mature age – where the matter requires “sensitive” and cautious approach – where there is some evidence the child is of maturity and mental stability to decide which parent she should live with – where there is some evidence of physical improvement of child – not satisfied that it is without risk to child’s health to make recovery order.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS SAUBER

Respondent: MR CAITO

File Number: DNC 152 of 2011

Judgment of: Judge Young

Hearing date: 12 May 2020

Date of Last Submission: 12 May 2020

Delivered at: Darwin

Delivered on: 12 May 2020

REPRESENTATION

Counsel for the Applicant: Ms V. Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Mr J. Barry

Solicitors for the Respondent: Darwin Family Law

Independent Children’s Lawyer: Ms Tregear

ORDERS

UPON NOTING

A.That there is nothing in the material to indicate that the child X should not be encouraged to communicate with the mother electronically;

B.That father is to arrange for himself and child to fly to Darwin if that is where the family report interviews are held subject to COVID-19 restrictions.

THE COURT ORDERS:

1. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship X born in 2006 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released on a date to be advised to the parties.

2. That the family report to deal with the following matters:

   (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

3. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

4. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

5. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

6. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to order 6 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on prior to the family report interviews as follows:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

4. That the matter be listed in the trial call-over list on 20 November 2020 at 9.30am for further directions.

IT IS NOTED that publication of this judgment under the pseudonym Sauber & Caito (No.2) 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

MS SAUBER

Applicant

And

MR CAITO

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

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 the second interim hearing in relation to X who is 13 years and 11 months old.  I delivered some short reasons in this matter on 10 March 2020 and the reasons that I give now need to be read together with those reasons which describe, however briefly, the background to the matter.

3. The issue is X has spoken to a family consultant pursuant to an order for the preparation of a child inclusive conference memorandum which was produced on 23 April 2020.  That memorandum, running to some 47 paragraphs, is a reasonably detailed child inclusive memorandum and summarises the materials, or what we know so far of the materials, in a balanced way.

4. Essentially, the parents of X are hopelessly entangled in a conflict and do not appear, on the materials that I have seen so far, to be capable of seeing beyond that conflict.  Each blame the other very much for the state of affairs that is presented to the Court at the moment.  There are grounds for a very strong suspicion, of course I do not make this finding, that a significant element in X’s serious mental illness, an eating disorder, is that she has been exposed to her parents’ conflict and is herself enmeshed in it.

5. I think there is some evidence that X has aligned in her conflict with her father - when I say “aligned” I mean by that X has allied herself with her father’s position regardless of whether or not the father’s position is in her interests.  It is an alliance and it may be that that sort of alliance is necessary for her psychological health considering the entrenched conflict between her parents.

6. I say that because the father in his affidavit material repeatedly, indeed almost incessantly, makes the point that any engagement between X and her mother is stressful and implicitly harmful for X.  In his affidavit filed on 8 May 2020 he attaches an email from X’s mother to X that is dated 9 April 2020.  The email simply says in the subject heading:

   Happy Easter darling X.

   and then goes on to say:

   Hello beautiful X.  Wishing you a very happy Easter.  Thinking of you as always and sending you lots and lots of love and hugs.  I’m always here for you darling.  I love you lots.  Love always.  Mum.

   and a “Happy Easter” logo.

7. In my view, this is an unexceptionable and innocuous greeting from a mother who loves her daughter.  The background to that is that the child has not spent any time with her mother since last year, possibly November of 2019.  There has been very little contact between the child and her mother, and as I understand from the affidavit material, no telephone or other communication for a long time and particularly since the father’s unilateral relocation to Town B in Western Australia with X.  X’s response to the email was to forward the email to her father with this comment:

   Again… she can’t leave it alone.

8. That strikes me as a revealing communication, because that the email was sent to her father with a comment critical of her mother but otherwise making no comment.  That is one of the examples given by the father at paragraph 44(d) of his affidavit of the mother contacting X directly:

   Examples of Ms Sauber contacting X directly, and causing her stress.

9. That email does not appear to me indicative of stress.  It appears to me indicative of the child joining in with the father in criticism or disapproval of the mother’s conduct, conduct that on the face of it appears unremarkable.

10. There are some other indications of alignment or alliance in a way that may not be in the child’s best interests, particularly in the child inclusive report where the child’s history of her engagement or relationship with her mother appears to be somewhat distorted.  At least during early last year the child, who had been in a shared care arrangement, was living with her mother.  After her admission to hospital in June 2019, where she was malnourished as a result of her eating disorder, she then placed herself with her father.  So the child’s conduct or her actions have been somewhat inconsistent.

11. My general suspicion is that the father’s unilateral relocation to Town B was probably not in the child’s best interests.  The reason for that is, until the child’s relocation with the father, her paediatrician, psychologist and so on, essentially people who were very familiar with X and her case, were here in Darwin. 

12. There has been some evidence from a psychologist, Ms C, and a paediatrician, Dr A, about X.  It is clear from that material X suffers from a serious illness or has suffered from a serious illness.  Dr A for example said that her condition in June 2019 when she was admitted to hospital was potentially life threatening.

13. While I may well consider that the father’s unilateral relocation with the child away from her treating medical practitioners was likely to have been other than in the child’s best interests and while I might consider that there is material that points to the child forming an alliance with the father with a view to criticism or denigration of the mother, the fact remains that this is a child with a serious illness or at least in the past has had a serious illness.

14. I should also point out, as I pointed out in my earlier reasons, that Dr A said this is condition, an eating disorder, thrives in the midst of parental or family dissent because it takes the focus away from the illness.  There may be elements of that here.  I do not know and it is probably not possible to reach any conclusion about that in an interim hearing.

15. The mother says that I should make an immediate order for the return of the child to Darwin.  The father opposes that.  The position of the independent children’s lawyer is that it is a difficult case requiring sensitive handling and caution, with which I agree, and that ultimately if the child is to return to Darwin it should be done over time and when there is a proper basis laid out for doing it or proper groundwork.  I generally accept that submission from the independent children’s lawyer.

16. The present evidence about X, including from school and from a psychologist in Western Australia, is that she is doing okay.  She has apparently put on weight.  While no-one has said that she is at a normal weight there is some evidence that she was about 51 kilograms which would not appear to be, for an almost 14 year old child, too far outside the healthy range, though of course I am not an expert and that is not a finding I make.  It is indicative however of reasonable physical health and indeed the family consultant seems to accept that the child’s physical health in Town B is okay.

17. There is also evidence from the child’s school that the child is doing reasonably well.  There is some evidence that the child’s attendance has not been regular during the COVID-19 crisis, it is unclear to me whether that is related or not.  There is also some evidence from the child’s school that she is rather solitary in the playground and, again, that is not necessarily encouraging.  But I am not able to make anything of that.

18. The picture of X in Town B is of some physical improvement, that is, she is putting on weight.  The evidence about whether her psychological improvement is great is unclear.  The psychologist, Mr D, thought that she was improving.  Ms C, the psychologist that knows her well, also thought her psychological condition was improving, but no-one has said she has recovered from her serious mental illness.  It would appear to me that she is most likely in a sensitive and early stage of recovery, but beyond that, I doubt much can be said.

19. It is against that background that I accept the independent children’s lawyer’s observation that this is a matter that requires a sensitive approach, I accept that.  While I am far from satisfied that it is in the child’s best interests that she continue living in Town B, I am also not satisfied that it is without risk that I make an order for her immediate return to Darwin.  I consider there is a risk should I make such an order and I think that is a risk to her mental health.

20. She has indicated clearly to the family consultant that she wants to continue living in Town B with her father.  Dr A, who prepared an affidavit, said that on the basis of her discussions with him in November he thought she was mature enough to decide questions with which parent she would live.  Dr A thought she had the maturity and mental stability to be making such decisions.

21. He also seemed to acknowledge that X’s condition had improved while living with her father.  Whether or not the reason for the improvement was that she was living with her father was less clear, but he made that observation.  He also made the observation that I mentioned that in June 2019 her condition was life threatening, potentially at least.

22. For those reasons I am not satisfied that I ought to make an order for X’s immediate return to Darwin and I decline to do so.  I do propose to make an order for the preparation of a family report and that will be done here in the Darwin registry. 

23. Subject to COVID-19 restrictions being lifted, in other words, permitting interstate flight without quarantine, there will be an order that the father is to arrange for himself and the child to fly to Darwin if that is where the interviews are held.  I will put the matter in the trial callover for 20 November 2020 at 9.30am.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 28 May 2020