Jaeger & Laidley - [2022] FedCFamC2F 1744

Federal Circuit and Family Court of Australia
(DIVISION 2)
Jaeger & Laidley [2022] FedCFamC2F 1744

File number(s): ADC 2141 of 2019

Judgment of: JUDGE BROWN

Date of judgment: 15 December 2022

Catchwords: FAMILY LAW – Interim Parenting proceedings – 3 children aged 10, 8 and 7 – where one child is in the care of the Minister – care arrangements for the 2 children – where parents have no capacity to co-parent – children in the full time care of the father pending involvement of the Department for Child Protection following allegation of physical abuse – mother seeks to spend unsupervised overnight time – father proposes supervised time – absence of any agreed lay supervisor – assessment of risk – matters to be considered – best interests

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4(1), 60B, 60CA, 60CC, 61DA, 68L

Cases cited:
B & B (1988) FLC 91- 957

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

Goode & Goode (2006) FLC 92-286

Jurchenko & Foster (2014) 51 Fam LR 588

M & M (1988) FLC 91-979

Marvel & Marvel (No 2) [2010] FamCAFC 101

Mazorski v Albright (2007) 37 Fam LR 518

Slater & Light [2013] FamCAFC 4

SS v AH [2010] FamCAFC 13 at [100]

W & W (abuse allegations: unacceptable risk) [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 131

Date of hearing: 8 December 2022

Place: Adelaide

Solicitor for the Applicant: Ms O’Brien, Legal Services Commission of SA

Solicitor for the Respondent: Mr Gallasch, Dixon Gallasch Pty Ltd

Counsel for the Independent Children’s Lawyer: Mr McQuade

Solicitor for the Independent Children’s Lawyer: The Family Law Project

Representative for the Department for Child Protection: Ms Holden
ORDERS

ADC 2141 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR JAEGER

Applicant

AND:
MS LAIDLEY

Respondent

and:
INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BROWN

DATE OF ORDER:

15 December 2022

UPON NOTING THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply, any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

THE COURT ORDERS THAT Until further or other order:
1.That the children of the relationship X, born in 2012 and Y, born in 2013 (“the children”) live with the father.
2.That all previous orders in respect of the parenting of the children be discharged.
3.That within 7 days the parties enrol with a Children’s Contact Service as agreed…

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 Jaeger & Laidley

Details

AGLC: Jaeger & Laidley [2022] FedCFamC2F 1744
Case: [2022] FedCFamC2F 1744
Decision Date

CaseChat Overview and Summary

Jaeger & Laidley is an interim parenting case, which involves two children, X, born in 2012, and Y, born in 2013, who have been the subject of proceedings since May 2019. The father, Mr Jaeger, has sought a range of parenting orders in respect of the children, which have been opposed by the mother, Ms Laidley. The immediate issue for the court to determine is whether the children should spend unsupervised time with their mother or whether their contact with her should be subject to rigorous professional supervision, pending the resolution of the substantive issues in the case. The court was required to consider the nature of the evidence available to it to assess the level of risk to the children, if they were to spend time with their mother, without some form of supervision. It was also required to consider the legal principles, which are applicable to the making of parenting orders, in this context, namely the paramountcy of the best interests of the children, as well as the primary and additional considerations, which are set out in section 60CC of the Family Law Act 1975 (Cth). The court found that the level of risk to the children, if they were to spend time with their mother, without some form of supervision, was unacceptable. The court was satisfied that the Department for Child Protection (DCP) had a sufficient level of concern, in this regard, to justify its intervention in the proceedings, pursuant to the provisions of section 68L of the Family Law Act 1975 (Cth). In addition, the court found that there was evidence, in the form of medical evidence, which indicated that the child had suffered a significant injury, which was likely to have been inflicted, as opposed to accidental in nature. In these circumstances, the court found that the only viable option, in respect of the children spending time with their mother, was for such contact to occur, in a supervised setting, at a Children’s Contact Centre, notwithstanding the drawbacks, which arose from such an arrangement. The court also found that the father was better able to meet the needs of the children, in respect of their special needs, than the mother. It also found that the mother’s refusal to engage with the Department was not conducive to the children’s best interests. In these circumstances, the court ordered that the children live with the father, pending the final hearing of the matter, and that the children spend time with their mother at a Children’s Contact Centre, pursuant to an appropriate regime to be determined by the court, upon the provision of an updated family report. The court also made a range of other orders, including orders restraining the parties from physically disciplining the children or allowing any other person to do so, discussing the matters raised in these proceedings or the DCP investigation in the presence or hearing of the children or from allowing any other person to do so, abusing, criticising or denigrating the other party in the presence or hearing of the children or from allowing any other person to do so. The court also made orders requiring the parties to attend for interviews with a Family Consultant, appointed under Regulation 7, and the preparation of an Updated Family Report.

Orders