Sauber & Caito (No 3)

[2021] FCCA 1295

FEDERAL CIRCUIT COURT OF AUSTRALIA

Sauber & Caito (No 3) [2021] FCCA 1295

File number:

DNC 152 of 2011

Judgment of:

JUDGE YOUNG

Date of judgment:

30 April 2021

Catchwords:

PRACTICE AND PROCEDURE – application for the appointment of a court expert – where the mother proposes to appoint a counsellor as an expert in the area of “child alienation” – where the Court is not satisfied “child alienation” is an area of expertise – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 15.49
Federal Circuit Court Rules2001 (Cth) r 15.09

Number of paragraphs:

8

Date of hearing:

30 April 2021

Place:

Darwin

Solicitor for the Applicant:

Ms Farmer of Withnalls Lawyers

Solicitor for the Respondent:

Mr Barry of Darwin Family Law

Solicitor for the Independent Children's Lawyer:

Ms Tregear of Arafura Legal

ORDERS

DNC 152 of 2011

BETWEEN:

MS SAUBER

Applicant

AND:

MR CAITO

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	30 APRIL 2021

THE COURT ORDERS THAT:

1.That the application in a case filed by the mother on the 20 April 2021 be dismissed.

2.That the matter remains listed for trial commencing 2 June 2021 at 10.00am (allowing three days).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Sauber & Caito (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application in a case brought by the mother to have a court expert appointed. Rule 15.09 of the Federal Circuit Court Rules2001 (Cth) summarise the terms in which the Court may appoint an expert as court expert. Rule 15.49 of the Family Law Rules 2004 (Cth) (Family Law Rules) is a somewhat more detailed rule relating to experts. In my view, Rule 15.49 of the Family Law Rules is a rule that should generally be applied and I direct that the rule is to apply in this matter. 

2. This is a parenting matter and it concerns a child who is 14 years old, X.  X will be 15 on the day the trial commences.  The matter has been in my docket for a considerable amount of time. I am reasonably familiar with the issues.  The child was being treated for an eating disorder as recently as the beginning of last year.  There was medical evidence before me that the child’s life was at risk.  She spent time in hospital as well.  The father then unilaterally relocated with the child to Perth. This occurred either at the beginning of 2020 or perhaps at the end of 2019. The father relocated in circumstances where there had been recommendations from the child’s healthcare providers who were located in Darwin that her therapy should continue in Darwin.

3. The family report, prepared by Ms E, canvases the history of the matter. Particularly, she recorded X’s estrangement from her mother.  However, Ms E also recorded that she believed the child had been thoroughly exposed (presumably by the father) to Court papers and that this has occurred in a way that was quite inappropriate. In drawing an inference from this conclusion, it could be said that Ms E may have formed the view that that was calculated to undermine the relationship between the child and the mother.

4. Ms E recorded that X has strong views and opinions about her living arrangements.  She wishes to remain where she is with the father.  Ms E, in my view, properly observed that X’s immediate health needs appear to be stable. Ms E considered this to be a very big factor in this case observing that X may have died from her eating disorder. This is not controverted. She also said that she considered that the underlying issues that resulted in the eating disorder remain unresolved and X, therefore, remained in a dangerous and precarious situation.

5. Ms E considered the resolution of the conflict between the parents to be a requirement in arriving at an ultimate resolution that would be in X’s best interests. This being, apparently, an example of a case where such conflict has threatened the life of the child.  Nevertheless, Ms E was not willing to recommend that there be any change in living arrangements until an environment was created that would make it safe for X. 

6. Against that background, the mother has applied to have a Court expert appointed.  The mother’s application relied on the notes from the Court ordered family therapy which appear to indicate the father held a hostile and uncooperative attitude to the family therapist and, ultimately, had an unwillingness to participate.  The application, based largely on that material, was that this was a case of “child alienation” and it was proposed that Mr F be Court appointed to provide evidence on dealing with “child alienation”.  Mr F was said to be an expert in “child alienation”. Mr F appears to have some academic qualifications and is, apparently, a Doctor of Philosophy (PhD) candidate in counselling.  There is no evidence of any qualification apart from counselling. 

7. I am not satisfied that “child alienation” is such an area of expertise. I am not satisfied that Mr F is an appropriate expert to be appointed as a Court expert. In applying rule 15.49 of the Family Law Rules, I believe in substance that the issue that Mr F is being invited to express an opinion on is essentially the same issue as is being considered by the family consultant, Ms E. The issue is the nature of the child’s relationships with her parents and what might be done to address the child’s terrible predicament. I am not satisfied that it is a different issue. I am also satisfied that none of the matters in rule 15.49(2) (a), (b) or (c) apply. In substance the object of the application is very likely to provide evidence that counters the opinion of the family consultant about the outcome. This can be inferred as the mother seeks an order be made against the child’s wishes, namely that the child live with the mother.

8. For those reasons the application in a case filed by the mother is dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       9 June 2021