FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Daeger & Daeger (No 2) [2023] FedCFamC1F 19
File number(s): WOC 484 of 2019 Judgment of: ALTOBELLI J Date of judgment: 25 January 2023 Catchwords: FAMILY LAW – PARENTING – Interim – Where the children lived with the mother until she was incarcerated – Where the children were retained by the second and third respondents whilst judgment was reserved on their application for time – Two additional recovery applications filed and heard – Where the option of least risk is considered – Unreliability of evidence – Best interests of the children – Court exercised discretion to review subpoena material – Orders provide for the children to be split across households – Concerns about the legal representation. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 91B Cases cited: Daeger & Daeger [2020] FCCA 2500
Daeger & Daeger [2019] FCCA 3929
Goode & Goode (2006) FLC 93-286; [2006] FamCA1346
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 113 Date of last submission/s: 19 January 2023 Date of hearing: 28 November 2022, 19 January 2023 Place: Sydney Solicitor for the Applicant: Caldwell Martin Cox The First Respondent: Litigant in person Solicitor for the Second and Third Respondents: Shiels Lawyers Solicitor for the Fourth Respondent: Caldwell Martin Cox Solicitor for the Independent Children's Lawyer: Phillip A Willkins & Associates ORDERS
WOC 484 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DAEGER
Applicant
AND: MR DAEGER
First Respondent
MR I
Second Respondent
MR J
Third Respondent
MS W
Fourth Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
25 JANUARY 2023
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.All previous orders that are inconsistent with the orders made today are suspended.
2.The Fourth Respondent have sole parental responsibility limited to making decisions about school and education for the child, X born 2007 (“X”).
3.X shall live with the Fourth Respondent.
4.The Second and Third Respondents have parental responsibility limited to making decisions about school and education for the child, Y born 2010 (“Y”).
5.Y shall live with the Second and Third Respondents.
6.The children, X and Y (“the children”) shall spend time with the Applicant, upon her release from incarceration, supervised by the Fourth Respondent or another agreed adult.
7.The children shall spend time with the First Respondent supervised by the Second and Third Respondents or another agreed adult.
8.From this weekend beginning 27 January 2023 and each alternate weekend thereafter, from after school on Friday (or 5pm if it is not a school day) to before school on Monday (or 9am if it is not a school day), the children shall spend time with each other and the Second and Third Respondents.
9.From next weekend beginning 3 February 2023 and each alternate weekend thereafter, from after school on Friday (or 5pm if it is not a school day) to before school on…
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- AGLC
- Daeger & Daeger (No 2) [2023] FedCFamC1F 19
- Case
- [2023] FedCFamC1F 19
- Decision Date
CaseChat Overview and Summary
This case involves the parents of two children, X and Y, who have been embroiled in a protracted and complex dispute regarding their care and welfare. The mother, who has a criminal record, is currently incarcerated and the father, also with a criminal record, has been spending unsupervised time with the children, contrary to court orders. The children’s older sister, Ms W, and her partner currently care for X, while Y lives with their paternal uncles, Mr J and Mr I. The court must decide on the best interests of the children, considering the history of non-compliance with court orders and the potential risks to the children from both parents.
The central legal issues in this case revolve around determining the best living arrangements and contact for the children that minimise the identified risks. The court must consider the evidence of the parties, their criminal records, and the children's diagnoses of ADHD and ASD. Additionally, the court has to address the issue of supervision of contact, given the lack of trust in the parties to comply with the orders and the financial constraints preventing the use of private supervisors.
The court, in its decision, emphasised that the paramount consideration must be the least risk for the children. It found that the mother's time with the children must be supervised due to concerns about her ability to parent effectively and her past criminal conduct. Similarly, the father's contact with the children must also be supervised, with the court ruling that Mr J or Mr I could act as supervisors due to financial constraints. The court ordered that X should remain with Ms W for the time being, while Y should live with Mr J and Mr I, with both children spending weekends together, alternating between their siblings and sister. The court also decided against making communication orders to avoid further conflict between the parents. X's part-time job is to continue as it is crucial to his wellbeing.
The final orders will see X remaining with Ms W and Y with Mr J and Mr I, with supervised contact between the children and their parents. The court's decision highlights the importance of prioritising the children's safety and welfare, even if it means making difficult and unconventional arrangements.
The central legal issues in this case revolve around determining the best living arrangements and contact for the children that minimise the identified risks. The court must consider the evidence of the parties, their criminal records, and the children's diagnoses of ADHD and ASD. Additionally, the court has to address the issue of supervision of contact, given the lack of trust in the parties to comply with the orders and the financial constraints preventing the use of private supervisors.
The court, in its decision, emphasised that the paramount consideration must be the least risk for the children. It found that the mother's time with the children must be supervised due to concerns about her ability to parent effectively and her past criminal conduct. Similarly, the father's contact with the children must also be supervised, with the court ruling that Mr J or Mr I could act as supervisors due to financial constraints. The court ordered that X should remain with Ms W for the time being, while Y should live with Mr J and Mr I, with both children spending weekends together, alternating between their siblings and sister. The court also decided against making communication orders to avoid further conflict between the parents. X's part-time job is to continue as it is crucial to his wellbeing.
The final orders will see X remaining with Ms W and Y with Mr J and Mr I, with supervised contact between the children and their parents. The court's decision highlights the importance of prioritising the children's safety and welfare, even if it means making difficult and unconventional arrangements.
Orders
Orders of the court
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Background
Background to the litigation
Notwithstanding the complexity of this matter, an urgent decision was required so that the children could return to school to commence term one, 2023. This is a case that will be determined by reference to where there is the least risk for the children.BACKGROUND The mother is the applicant in this case. She was born in 1980 and is presently 42 years old. She normally resides in the Region N area of New South Wales but is currently incarcerated following a conviction on criminal charges that will be discussed below. She is expected to be released on parole. The father is the respondent in this case. He was born in 1968 and is presently 54 years old. He claims to live in a town outside Sydney, possibly with his sister, but the Court is sceptical about his evidence in this regard. It is possible that he lives in the former family home on a property in a rural area of Sydney. He claims to be unemployed. The father, like the mother, has an extensive criminal record, including for firearms and violence offences. The second and third respondents, Mr J and Mr I, purportedly live in the former family home (“the family home”) together with their younger brother Y. Contrary to the terms of an existing order of this Court, the father spends time and communicates with Y, possibly at the family home, and probably at other places. The father claims that this takes place in the presence of Mr J and Mr I, but such are the pervasive concerns that the Court has about the evidence given by all of the parties in this case, it may be possible that this is not the case. Mr J was born in 2000 and is presently 22 years old. He owns his own business called “BB Pty Ltd” and describes his occupation as a tradesperson. Mr I was born in 1999 and is presently 23 years old and is employed by Mr J. The fourth respondent in this case is Ms W, the older sister of Y and X. She was born in 2001, and is 21 years old. She currently lives, with her partner, in the mother’s home at Region N, together with X, and describes her occupation as working with animals. Both X and Y have been diagnosed with attention deficit hyperactivity disorder (“ADHD”) and autism spectrum disorder (“ASD”) but the parties differ in their views regarding the severity and impact of both diagnoses on the children. There is a dispute between the parties as to whether the children are medication compliant and have access to all of the services available to them through the National Disability Insurance Scheme. They currently attend School L in Region N. X is in year 10 and Y in year eight. The children, but especially Y, have experienced behavioural issues at school. It has been difficult for those responsible for the care of the children, to ensure that they are consistently taken to school on time, or at all. This matter has a long litigation history as is described in the procedural history set out below. As will be observed below, the behaviour of the parties in this matter is characterised by lack of regard or sensitivity to the needs of the children, or compliance with orders made by the Court. This family has divided into two tribes, the maternal and paternal tribe. Ms W is aligned with the mother, and Mr J and Mr I are aligned with the father. Orders for supervised contact between the children and the father have been made, but effectively sabotaged by the parties. The matter has been set down for final hearing and despite the reality that this is what this case needs more than anything else, the parties themselves managed to sabotage that final hearing. It is now listed for final hearing for five days before her Honour Justice Curran commencing on 22 May 2023. The final issues are both parenting and property.
Evidence
Evidence Before The Court
There are two 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 In support of their case, the father, Mr J and Mr I rely on the following documents:(a)The father’s case outline filed 9 November 2022;(b)The father’s affidavit filed 9 November 2022;(c)Mr J’s affidavit filed 9 November 2022;(d)Mr J and Mr I’s case outline filed 18 January 2023;(e)Application in a Proceeding filed on 16 January 2023;(f)Mr J’s affidavit filed 18 January 2023;(g)Affidavit of Ms E filed 18 January 2023;(h)Documents tendered and marked as exhibits R1–R3 on 19 January 2023. In support of her case, the mother relies on the following documents:(a)Case outline filed 18 January 2023;(b)Application in a Proceeding filed 16 January 2023;(c)Ms W’s affidavit filed 16 January 2023. In support of her case, Ms W relies on the following documents:(a)Case outline filed 10 November 2022;(b)Minute of Order filed 4 November 2022;(c)Her affidavit filed 4 November 2022;(d)The mother’s affidavit filed 24 August 2022. In support of his case, the Independent Children’s Lawyer relies on the following documents:(a)Child Impact Report dated 16 September 2022;(b)Document tendered and marked as exhibit ICL1 on 19 January 2023. The Court relies on the following additional material as follows:(a)Subpoenaed material produced by CC Health Service tendered and marked as exhibit C1;(b)Subpoenaed material produced by DD Organisation tendered and marked as exhibit C2;(c)Subpoenaed material produced by Ms EE Psychologist tendered and marked as exhibit C3;(d)Subpoenaed material produced by NSW Police tendered and marked as exhibit C4;(e)Subpoenaed material produced by FF Hospital tendered and marked as exhibit C5.PROCEDURAL HISTORY The mother commenced these proceedings on 6 May 2019 (where she proposed sole parental responsibility, the children live with her and spend no time with the father) when the father retrieved the children from school and retained them in his care. On 9 May 2019, interim orders were made by Judge Monahan that provided for the children to live with the mother, spend supervised time with the father (after the parents complete intake at C Family Centre) and for an Independent Children’s Lawyer to be appointed. Injunctions were also made to restrain the father from approaching the mother and the children and intimidating, harassing or verbally abusing the mother. On 6 June 2019, the father filed a response where he proposed he hold sole parental responsibility, the children live with him and spend time with the mother on alternate weekends from Friday to Monday. On 17 July 2019, further interim orders were made for the children to live with the mother and for the children’s time with the father to progress over a period of months supervised by the maternal aunt, Ms A. On 11 September 2020, an application for the maternal aunts, Ms A and Ms D, to be joined to the proceedings was dismissed.
Decision
Reasons for decision
As it is a relatively short time before the final hearing of this matter, again dependent on the capacity of the parents to comply with trial directions and cooperate with Family Report interviews, it would be tempting to allow this consideration to justify making an order that the children live with one family tribe and not spend time with the other. The Court does not believe that this would be in the best interests of X and Y.CONCLUSION The Court has foreshadowed that this interim decision must be made on the basis of where there is least risk for the children. Acknowledging all of the problems that have been identified above, and doing the best the Court can, the Court believes that the least risk for Y and X is for them to live with their brothers Mr J and Mr I pending the final hearing, but to spend time and communicate with the mother and Ms W as often as that can be made practicable in the circumstances. The Court is concerned, however, that X will resist such an order. It is for this reason that the Court has, reluctantly, concluded that X will need to remain in Ms W’s care for the time being, despite the concerns the Court has about her capacity to parent him. The Court is, however, somewhat reassured by her negative drug tests in the past. For Y, of course, this means a change of school, but given the risk issues identified in these reasons, even this dramatic change is warranted. Until records pertaining to the mother’s incarceration can be presented to the Court and properly considered by the Independent Children’s Lawyer and the Court, the mother’s time with the children must be supervised. Likewise, the father’s time with the children must be supervised. The choice of supervisors is problematic. The obvious choice of members of the maternal and paternal family seem contraindicated because of the partisan alignments that have been adopted by them, as well as the Court’s concern that they had advertently or inadvertently further embroiled the children in the adults’ dispute. The harsh reality in this case, however, is that none of the parties have the financial means to afford private supervision services, and there remain inordinate delays to access community-based supervision services. Whilst this is less than ideal, the father’s time with the children will need to be supervised by either of Mr J and Mr I, and the mother’s time with the children will need to be supervised by Ms W or another agreed adult. All supervisors will need to sign written undertakings to the Court about their obligations of supervisors and in relation to non-denigration and non-discussion with or in the presence of the children. The orders will provide for Y and X to spend each weekend together, alternating between their brothers and sister. Changeover is to be at school wherever possible. No orders will be made for communication as this is another opportunity for parental conflict. X’s part-time job is very important to him and his wellbeing and thus he should be able to keep working the shifts reasonably allocated to him even when spending time with Mr J, Mr I and the father.
Ratio Decidendi
Legal Principle Established
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