Daeger & Daeger
[2022] FedCFamC1F 642
Federal Circuit and Family Court of Australia
(DIVISION 1)
Daeger & Daeger [2022] FedCFamC1F 642
File number(s): WOC 484 of 2019 Judgment of: ALTOBELLI J Date of judgment: 10 August 2022 Catchwords: FAMILY LAW – PARENTING – Review of decision – Leave to file out of time – Review application allowed in part. Legislation: Family Law Act 1975 (Cth) s 68B Cases cited: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Mirren & Mirren [2020] FamCAFC 94
Sanders and Sanders (1993) FLC 92-426; [1992] FamCA 110
Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 14 April 2022 Place: Sydney (via videoconference) Solicitor for the Applicant: Ms Shiels, Shiels Lawyers Pty Ltd Solicitor for the Respondent: Ms Duve, Caldwell Martin & Cox Counsel for the Independent Children's Lawyer: Mr Fermanis Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
WOC 484 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DAEGER
Applicant
AND: MS DAEGER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
10 AUGUST 2022
THE COURT ORDERS THAT:
1.Pursuant to rule 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the requirement for strict compliance with any rules or regulations be dispensed with.
2.Leave is granted to the Applicant to rely on evidence of the Respondent’s conviction on a criminal offence after the date on which this matter was heard.
3.Leave is granted to the Applicant to file and move on an Application for Review filed 22 March 2022, seeking review of an order made by a Senior Judicial Registrar on 22 September 2021, notwithstanding that the Application for Review is filed out of time.
4.In relation to the orders made by the Senior Judicial Registrar on 22 September 2021:
(a)Order 1 is maintained;
(b)Order 2 is vacated and in lieu thereof, the following words are inserted: “The costs of both parties before Senior Judicial Registrar […] are reserved”;
(c)Order 3 is vacated and in lieu thereof, the following words are inserted: “The costs of both parties relating to the proceedings up to and including 22 September 2021 are reserved”;
(d)Order 4, being a consent order, is maintained save as to the extent that it is inconsistent with any later order of this Court;
(e)Order 5 is maintained, noting the later application by Mr I and Mr J;
(f)Order 6 is maintained; and
(g)Order 7 is vacated.
5.The Application for Review filed on 22 March 2022 is otherwise dismissed and the costs of the application are reserved to the final hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Daeger & Daeger has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from the transcript)ALTOBELLI J:
I provide the following short oral reasons for judgment. The matter before me is complex. It is fluid. It is highly contentious. It is a fact-based parenting dispute, where the Court who has had the case management of this matter for a considerable time now has grave doubts about the veracity of the evidence of both parents, notwithstanding the very serious allegations that have been made. Indeed, the ambivalence, if not the indifference, of both parents to orders of this Court and to the process of law is one of the hallmarks of this case.
One of the most serious allegations made of family violence against Mr Daeger (“the father”) by Ms Daeger (“the mother”), has been found after a hearing by a learned Local Court magistrate, beyond reasonable doubt, to have been false. The mother was convicted and sentenced, and a severity appeal has been filed.
This fact casts a giant shadow of doubt over her remaining allegations, all of which the father strenuously denies. This may well be one of those cases where the only decision that will really matter is the final one, after all the evidence has been presented, tested and findings made.
The Application for Review filed on behalf of the father on 22 March 2022 was filed out of time. Consistent with the authorities of Gallo v Dawson (1990) 93 ALR 479, Sanders and Sanders (1993) FLC 92-426, and Mirren & Mirren [2020] FamCAFC 94 (cited by the Independent Children’s Lawyer in his case outline filed 13 April 2022) the Court is satisfied that events that have occurred since submissions were made plainly cast doubt on the appropriateness of some, but not all, of the orders made by the learned Senior Judicial Registrar on 22 September 2021, and thus create an injustice to the father, whose evidence suggests an arguable contrary case. In any event, I am satisfied that an adequate explanation has been given for the delay in bringing the application.
The focus must be on the individual orders made by the learned Senior Judicial Registrar, not all of which are affected by the events that occurred later. For example, the later events do not in any way impact on Order 1, an order that dismissed the father’s application to discharge the Independent Children’s Lawyer (an application that manifestly lacks merit). Order 4 was an injunction made by consent under s 68B of the Family Law Act 1975 (Cth), the importance of which may well be greater as a result of events that occurred later, not less. Orders 2 and 3 made by the learned Senior Judicial Registrar relate to costs. Later events cast doubt on the mother’s allegations of family violence that appeared to be central to her case. The learned Senior Judicial Registrar was obviously unaware of the later events. Therefore, it is appropriate to simply reserve costs until the final hearing.
The objection to Order 5 is redundant, due to a later application by the adult children themselves, which will come before the Court shortly. In the circumstances, I consider that the orders that I have made are appropriate. That otherwise deals with the Application for Review, and the matter is stood over to the next date before the Court.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 10 August 2022
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