Sauber & Caito (No 4)

[2021] FCCA 2174

FEDERAL CIRCUIT COURT OF AUSTRALIA

Sauber & Caito (No 4) [2021] FCCA 2174

File number:	DNC 152 of 2011
Judgment of:	JUDGE YOUNG
Date of judgment:	20 August 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – application by the Independent Children’s Lawyer for orders to appoint a psychologist as a Court expert to produce a further family assessment report – where it appeared the Family Consultant who prepared the initial family report would be unavailable for cross-examination at the trial – where the Family Consultant will be available for cross-examination at a later date – where there is evidence that the father has failed to engage in family therapy – where there is evidence the father has failed to facilitate and encourage the child to engage in family therapy – application dismissed.
Legislation:	Family Law Act 1975
Number of paragraphs:	8
Date of hearing:	20 August 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Farmer of Withnalls Lawyers
Counsel for the Respondent:	Mr Mort
Solicitor for the Respondent:	Darwin Family Law
Counsel for the Independent Children's Lawyer:	Ms James
Solicitor for the Independent Children's Lawyer:	Arafura Legal

ORDERS

DNC 152 of 2011

BETWEEN:

MS SAUBER

Applicant

AND:

MR CAITO

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	20 AUGUST 2021

UPON NOTING:

That the family report writer is not available for cross-examination today.

THE COURT ORDERS THAT:

1.That the Application in a Case filed by the Independent Children’s Lawyer on 19 August 2021 be dismissed.

2.That the trial date on 20 August 2021 be vacated and relisted on 8 October 2021 at 10.00am.

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 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 by the Independent Children’s Lawyer (ICL) to retain a psychologist to prepare, in effect, a further family assessment report.  The initial reason for that application was that, as of two or three days ago, it appeared that the Family Consultant who prepared the family report was unavailable for cross-examination in circumstances where both mother and the ICL wished to cross-examine her.  That information has since been overtaken by further information. I have been informed by Court Child Services that Ms E will be available for cross-examination in late September.

2. In the circumstances, the argument for the further assessment, in my view, is seriously weakened.  Nevertheless, Ms James appearing for the ICL pressed on with the application.  I do not propose to review the factual background in this case, it is unnecessary to do so at the moment.

3. Ms James said that further expert evidence is necessary to identify a means of assisting this child who suffers from a serious psychological illness and appears to be very strongly aligned with the father. Indeed, at various times it has been suggested that this is a case of something witnesses have called “alienation syndrome”. Without purporting or attempting to decide whether there is such a syndrome, it is descriptive of the difficulty in this case, namely, that the child has been marginally co-operative with previous attempts to engage in family therapy.

4. Ms J, who is a family therapist from a social work background and has given evidence before me in this matter, stated that an attempt at family therapy was shot down when the father was not, as she put it, “ready”, to facilitate and encourage the child’s participation in the therapy.  Ms J effectively said there was no way forward at the moment, certainly not through family therapy. 

5. Ms O was called to give evidence by the mother. She was initially put forward to give evidence about engaging the child in a program of intensive psychological therapy in a context of quite extreme coercive controls from the Court in an attempt to overcome the situation I have described above.  The mother ultimately abandoned that proposal. It is, however, significant to note that Ms O said that that proposal could not work without the co-operation of the father. In circumstances where there is no evidence that such co-operation would be forthcoming from the father, there must be a serious doubt about whether that avenue would have ever been practicable. 

6. Ms E, who is the Family Consultant, said in the Family Report that it is in the child’s best interest that she have a relationship with the mother.  There has never been any real issue about that. The significant question was, however, given the child’s extreme psychological and physical vulnerability (such is the nature of the illness of an eating disorder), it was always going to be extremely challenging to find a way through this without some degree of co-operation from the father.  There is no evidence to suggest that the father would co-operate with any such program, and, indeed, there is a great deal of evidence to suggest that he is unlikely to co-operate with any such measures. 

7. Despite a relationship between the child and the mother being in the child’s best interests, it appears unlikely that it can be achieved in the near future in any manner that has been put forward by any of the three expert witnesses I have heard from.  The proposal to have the child and the parents subjected to a further round of interviews, this time by a psychologist, appears to me to have no real prospect of providing any new information that the Court can work with. 

8. In the circumstances, I dismiss the application in a case. 

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

Associate:

Dated:       14 October 2021