Legal Research
Cases
DAEGER & DAEGER (No.2)

DAEGER & DAEGER (No.2)

Case [2020] FCCA 2500 11 September 2020

Type to search within this case.

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAEGER & DAEGER (No.2)

[2020] FCCA 2500

Catchwords:
FAMILY LAW – Interim parenting – further application where each parent makes serious allegations about risk of harm to the children from the other parent – where mother relocates but not to interfere with father’s time with the children – where father seeks to re-agitate issues previously raised – where supervised contact ordered – transfer to the Family Court of Australia at Sydney.

Legislation:

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

Cases cited:

Daeger & Daeger [2019] FCCA 3929
Goode & Goode [2006] FamCA 1346
Insley & Insley [2018] FCCA 438

MRR v GR [2010] HCA 4

Applicant:

MS DAEGER

Respondent:

MR DAEGER

Proposed Intervenors:

MS A & MS D

File Number:

WOC 484 of 2019

Judgment of:

Judge Altobelli

Hearing date:

20 August 2020

Date of Last Submission:

20 August 2020

Delivered at:

Wollongong

Delivered on:

11 September 2020

REPRESENTATION

Solicitors for the Applicant:

Caldwell Martin & Cox

Counsel for the Respondent:

Mr Macpherson

Solicitors for the Respondent:

Shiels Legal

The proposed Intervenors appeared by teleconference

Solicitors for the Independent Children's Lawyer:

Phillip A Wilkins & Associates

ORDERS

The Application in a Case filed by Ms A and Ms D on 14 August 2020 be dismissed.
The Application in a Case filed by the Father on 12 February 2020 be dismissed.
The Application in a Case filed by the Father on 20 May 2020 be dismissed.
The children X (born 2007) and Y (born 2010) (‘the children’) are to spend time with the Father for no less than two hours each alternate weekend, with such time to be supervised by C Family Centre’s supervised children’s contact service located in Town B at such times as nominated by C Family Centre.
To facilitate Order 4 above, the Mother and the Father are each to:
(a)Contact C Family Centre at Town B Town Bwithin 48 hours of the making of these Orders and make an application for C Family Centre 's supervised children’s contact service;
(b)Provide all information and complete all necessary paperwork as may be requested by C Family Centre;
(c)Attend any intake or assessment appointments as may be requested by C Family Centre on such days and times as nominated by C Family Centre;
(d)Complete any such courses as required by C Family Centre; and
(e)Comply with any other reasonable request or direction of C Family Centre for the purpose of implementing these Orders.
To facilitate Order 4 above, the Mother is to:
(a)Ensure that the children attend any intake or assessment appointments as requested by C Family Centre on such days and times as nominated by C Family Centre (including on school days); and
(b)Ensure that the children attend on each occasion that the children are scheduled to spend supervised time with the Father as nominated by C Family Centre.
These Orders operate as the authorisation of both parents to C Family Centre to provide any Independent Children's Lawyer that has been…

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.

Continue reading DAEGER & DAEGER (No.2)

Details

AGLC: Daeger and Daeger (No.2) [2020] FCCA 2500
Case: [2020] FCCA 2500
Decision Date: 11 September 2020

CaseChat Overview and Summary

This matter concerned an application before Judge Altobelli in the Federal Circuit Court of Australia, involving serious allegations of risk of harm to the children, X and Y, made by each parent against the other. The mother had relocated, which the court found was not done to interfere with the father's time with the children. The father sought to re-agitate issues previously raised, and the court considered the appropriateness of supervised contact.

The court was required to determine the interim parenting arrangements for the children, specifically addressing the serious allegations of harm and the father's renewed applications. It also had to consider the implications of the mother's relocation and the existing supervised contact arrangements.

Judge Altobelli reasoned that given the serious allegations and the need for a controlled environment for the children's time with the father, supervised contact was necessary. The court applied principles relating to the paramountcy of the children's welfare and the need to ensure their safety. The court dismissed applications made by both the mother and the father.

The final orders stipulated that the children would spend time with the father for no less than two hours each alternate weekend, with this contact to be supervised by C Family Centre in Town B. Both parents were ordered to cooperate fully with the C Family Centre to facilitate these arrangements, including attending assessments and completing any required courses. The mother was specifically directed to ensure the children's attendance at all scheduled contact sessions. The proceedings were subsequently transferred to the Family Court of Australia at Sydney for further directions.

Orders

Orders of the court

The Application in a Case filed by Ms A and Ms D on 14 August 2020 be dismissed.

The Application in a Case filed by the Father on 12 February 2020 be dismissed.

The Application in a Case filed by the Father on 20 May 2020 be dismissed.

The children X (born 2007) and Y (born 2010) (‘the children’) are to spend time with the Father for no less than two hours each alternate weekend, with such time to be supervised by C Family Centre’s supervised children’s contact service located in Town B at such times as nominated by C Family Centre.

To facilitate Order 4 above, the Mother and the Father are each to:

(a) Contact C Family Centre at Town B Town Bwithin 48 hours of the making of these Orders and make an application for C Family Centre 's supervised children’s contact service;

(b) Provide all information and complete all necessary paperwork as may be requested by C Family Centre;

(c) Attend any intake or assessment appointments as may be requested by C Family Centre on such days and times as nominated by C Family Centre;

(d) Complete any such courses as required by C Family Centre; and

(e) Comply with any other reasonable request or direction of C Family Centre for the purpose of implementing these Orders.

To facilitate Order 4 above, the Mother is to:

(a) Ensure that the children attend any intake or assessment appointments as requested by C Family Centre on such days and times as nominated by C Family Centre (including on school days); and

(b) Ensure that the children attend on each occasion that the children are scheduled to spend supervised time with the Father as nominated by C Family Centre.

These Orders operate as the authorisation of both parents to C Family Centre to provide any Independent Children's Lawyer that has been or may be appointed in these proceedings with any information about the parents’ engagement with their supervised contact service or the progress of supervised time that the Independent Children’s Lawyer may require.

The proceedings are transferred to the Family Court of Australia at Sydney to be listed for Directions before a Registrar on a date to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Daeger and Daeger (No.2) [2020] FCCA 2500

Most Recent Citation

Daeger & Daeger (No 2) [2023] FedCFamC1F 19

Cases citing this decision · 1 of 1 shown

Daeger & Daeger (No 2)
[2023] FedCFamC1F 19 Para 10

…previous interim parenting judgments in this matter. The first one is reported as Daeger & Daeger [2019] FCCA 3929 and the second as Daeger & Daeger [2020] FCCA 2500. EVIDENCE…

View all 1 citing cases →

Cases cited in this decision · 11 of 11 shown

DAEGER & DAEGER
[2019] FCCA 3929 Para 3

…own initiative, has decided to publish its Reasons for Judgment of 17 July 2019. These Reasons for Judgment have been published as Daeger & Daeger [2019] FCCA 3929.…
Insley & Insley
[2018] FCCA 438 Para 5

…In addition, I will include a number of paragraphs from my own decision in a matter called Insley & Insley [2018] FCCA 438, where I discuss some of the authorities about decision making in interim cases: The Challenge of Fact-Finding in this Case [61] This Court is in a very difficult position. Whilst all the mate…
Salah & Salah
[2016] FamCAFC 100 Para 5

…lows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic. [72] In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not…
Eaby & Speelman
[2015] FamCAFC 104 Para 5

…since serious consequences can also flow from a finding that a child is at risk of abuse. [71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic…
Enmore & Smoothe
[2014] FamCAFC 131 Para 5

…at it is not open to a trial judge to simply ignore an allegation because it had not been tested. [70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurre…
Reece & Reece
[2011] FamCAFC 24 Para 5

…eedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child. [66] In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination. In that…
Marvel & Marvel
[2010] FamCAFC 101 Para 5

…t in issue. Nonetheless, the Full Court warned, findings must be couched with circumspection. [65] The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is w…
MRR v GR
[2010] HCA 4 Para 1

…In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said 9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that t…
Binder and Merza
[2010] FamCA 13 Para 5

…larly in cases where there are allegations of family violence, a more nuanced approach is warranted. For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the e…
Goode & Goode
[2006] FamCA 1346 Para 4

…The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings. 68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting order…
Deiter & Deiter
[2011] FamCAFC 82 Para 5

…n that case the evidence was a Family Report. In this case, of course, it is a Child Dispute Conference Memorandum. [67] In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are t…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
60B, 60CA, 60CC, 61DA, 65DAA 6 mentions