DAEGER & DAEGER - [2019] FCCA 3929

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAEGER & DAEGER

[2019] FCCA 3929

Catchwords:
FAMILY LAW – Interim parenting – where each parent makes serious allegations about the risk of harm to the children from the other parent – where each parent denies those allegations – where false or exaggerated allegations and denials are likely – children to remain in the care of the mother and spend supervised time with the father.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA.

Cases cited:

Goode & Goode [2006] FamCA 1346
Insley & Insley [2018] FCCA 438
MRR v GR [2010] HCA 4

Applicant:

MS DAEGER

Respondent:

MR DAEGER

File Number:

WOC 484 of 2019

Judgment of:

Judge Altobelli

Hearing date:

12 July 2019

Date of Last Submission:

12 July 2019

Delivered at:

Sydney

Delivered on:

17 July 2019

REPRESENTATION

Solicitors for the Applicant:

Caldwell Martin & Cox

Solicitors for the Respondent:

Marsdens Law Group

Solicitors for the Independent Children's Lawyer:

Phillip A Wilkins & Associates

ORDERS PENDING FURTHER ORDER:

The children, X born 2007 and Y born 2010 (“the children”), live with the Mother.
The children spend time with the Father as agreed and in the absence of agreement:
(a)Initially each alternate Saturday or Sunday as the parents agree, or failing agreement on Sunday, for no more than 4 hours during the day supervised by the Mother’s sister Ms A or such other person as approved by the Mother;
(b)After a period of 3 months each alternate Saturday or Sunday as the parents agree, or failing agreement on Sunday, from 9am to 5pm supervised by the Mother’s sister Ms A or such other person as approved by the Mother.
The parties continue the intake assessment with C Family Centre Town B and in the event that Ms A is unable or unwilling to supervise the Father’s time and the parties are unable to agree on a substitute supervisor, the Father’s time with the children take place at C Family Centre Town B on such days and such times as provided by the Centre.
For the purposes of Order 2, Ms A, or such other person as approved by the Mother to supervise, shall sign and file an appropriate Undertaking in the form submitted by the Independent Children’s Lawyer prior to such time commencing.
The matter be stood over to the Mention on 6 November 2019 at 11:30am.
The Independent Children’s Lawyer have liberty to re-list the matter on seven (7) days’ notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 484 of 2019

MS DAEGER

Applicant

And

MR DAEGER

Respondent

ORAL REASONS FOR JUDGMENT

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.
The case before me is about…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: DAEGER & DAEGER [2019] FCCA 3929
Case: [2019] FCCA 3929
Decision Date: 17 July 2019

CaseChat Overview and Summary

In *Daeger & Daeger*, Altobelli J of the Family Court of Australia considered an application for interim parenting orders where each parent had made serious allegations concerning the risk of harm to the children posed by the other parent, while simultaneously denying those allegations. The court noted the likelihood of false or exaggerated allegations and denials being made by both parties.

The central legal issue before the court was how to best protect the children's welfare and best interests on an interim basis, given the deeply entrenched and conflicting allegations of harm. This required the court to assess the credibility of the allegations and determine the appropriate level of contact between the children and each parent pending a final determination of the parenting dispute.

Altobelli J applied the principles of the *Family Law Act 1975* (Cth), particularly those relating to the paramountcy of the child's best interests and the need to protect children from harm. The court found that, on the material before it, it was in the children's best interests to remain in the primary care of the mother. The father was to have supervised time with the children.

Orders