Anders & Damus
[2022] FedCFamC2F 1493
Federal Circuit and Family Court of Australia
(DIVISION 2)
Anders & Damus [2022] FedCFamC2F 1493
File number(s): ADC 4751 of 2022 Judgment of: JUDGE BROWN Date of judgment: 28 October 2022 Catchwords: FAMILY LAW – Application for adjournment, interim parenting arrangements for child aged 3 years – unilateral relocation of child from Adelaide to Melbourne – allegations of coercive and controlling family violence – assessment of risk – assessment of degree of emergency facing relocating parent - nature of interim hearing – application of presumption of equal shared parental responsibility – best interests Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Morgan & Miles (2007) FamCA 1230 Division: Division 2 Family Law Number of paragraphs: 35 Date of hearing: 28 October 2022 Place: Adelaide Counsel for the Applicant: Mrs Read Solicitor for the Applicant: Phoenix Family Law Solicitor for the Respondent: Ms Liddle as Duty Solicitor ORDERS
ADC 4751 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ANDERS
Applicant
AND: MS DAMUS
Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
28 october 2022
THE COURT ORDERS THAT:
1.The Applicant is to have communication with the child X born in 2019 by way of FaceTime, WhatsApp or other such electronic means at midday (SA Time) on each of 29 October, 31 October and 2 November 2022 with such communication to be limited to no more than 15 minutes and to occur with the Respondent’s partner to ring the Applicant’s mobile telephone.
2.The Respondent is to file and serve her Response and supporting Affidavit by close of business on 2 November 2022.
3.Further consideration of the matter is adjourned to 3 November 2022 at 11.30am (SA Time) to take place at Court with the Respondent having leave to attend by MS Teams using the same details as used for today’s 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 a pseudonym Anders & Damus has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
This morning, I am dealing with an interim parenting application in which the applicant is Ms Anders, and the respondent is Ms Damus. The reasons for judgment are being delivered orally immediately following the interim hearing concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
Ms Anders and Ms Damus are the parents of one child, X, who was born in 2019. Accordingly, at the present, X is aged just short of three and a half years. Ms Damus commenced these proceedings on 19 October 2022. At her request, they were listed urgently, initially, before a Registrar of the court on 24 October 2022.
On 24 October 2022, the application had not been served on Ms Damus. In those circumstances, the learned Registrar made an order pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 dispensing with the requirement that Ms Damus be personally served with the application and, in lieu thereof, it was directed that she be served via her email address and via the mother, who was a person who lives in suburban South Australia. Ms Damus was also ordered to file her responding application on or before 4.00pm on 27 October 2022. It is common ground that she did not do so. From Ms Anders’ perspective, the urgency of the case can be easily summarised.
She has deposed that she and Ms Damus were engaged in a relationship from early 2014 onwards and were married in 2020. It is her position that the parties separated in difficult circumstances on 20 July 2022. Thereafter, Ms Anders asserts that she and Ms Damus agreed on essentially a shared care regime for X’s care.
Both parties have been engaged in the paid workforce, though to differing degrees and it is Ms Anders’ evidence that X has spent significant time in professional childcare at the B Children’s Centre in Suburb C.
When the parties separated in what seemed to be fairly difficult circumstances, Ms Anders left the former family home in Suburb D. I have been told something about the circumstances of that, particularly in how it was being funded. It would appear to be Ms Anders’ position that it was being purchased through a subsidised scheme which envisaged an initial rental period, and she is critical, I think, that Ms Damus has let that accommodation go.
What is clear is that she – that is, Ms Anders – moved in with her parents and then more recently moved to rental premises in Suburb E. It is Ms Anders’ case that, after the parties separated, Ms Damus became involved with another person who lives in Melbourne and began travelling to Victoria frequently.
It is Ms Anders’ case that, after separation, as I say, the parties had essentially a shared care arrangement. She has deposed that, in August, she took X on holiday to Tasmania for a period of seven nights. In this context, it is her case that she has a very significant role in parenting X and has done so since the child was born.
In addition, it is her case that X is at the centre of a network of familial connections on both sides of her family, which is based in Adelaide. In these circumstances, she alleges that Ms Damus has secretly arranged to move with X to Victoria so that she can pursue a relationship with the person with whom she has become involved. In so doing, she did not have Ms Anders’ acquiescence to move X a very significant distance away from her and other relations she has in Adelaide. In the terminology of the lawyers, she would categorise Ms Damus’ actions as being a unilateral relocation.
The Family Law Act 1975 (Cth)[1] emphasises the joint responsibilities of parents for their children, who are conferred with responsibility for making major long-term decisions jointly unless the court determines otherwise. In this context, a major long term decision concerns a decision which has implications for the ability or capacity of a child to spend reasonable periods of time with each of his or her parents. Accordingly, Ms Anders asserts Ms Damus has unilaterally made a major decision in respect of X’s care by moving to Melbourne. In addition, she has provided some medical material in regard to Ms Damus.
[1] Hereinafter referred to as “the Act”.
Ms Damus, for reasons which I will come to in a moment, has not responded to that material, which is sensitive in its content, but essentially, it can be summarised, but Ms Damus has recently been diagnosed with ADHD and has a generalised anxiety condition. Essentially, Ms Anders asserts that Ms Damus is not in a position currently to make considered decisions in respect of X’s care.
In those circumstances, she wishes the court to make what is called a recovery order. Essentially, that is a direction to police, that they, in effect, go and remove a child from a person, give the child to another person at the court’s direction. For obvious reasons, recovery orders are an intervention of last resort because they are potentially traumatic for a child or children.
In an ideal world, the parents themselves should make decisions, particularly significant decisions regarding the care of their child or children consensually. However, that is not always possible, particularly in circumstances of emergency such as the current one. In such situations, it falls to the court to make a decision.
It is now clear that Ms Damus knows about these proceedings. That must be the case because, on 25 October 2022, the day after the proceedings were before the court, solicitors in Adelaide filed a notice of address for service. Thereafter, on 27 October 2022, two days later, those solicitors have indicated that they do not act. Late yesterday, Ms Damus herself sent an email to the court in which she said as follows:
I need to bring to the attention of the court that I no longer have legal representation. I wish to seek a short adjournment to allow me time to source appropriate counsel. I also note that I was only served by email on Tuesday and, given the very serious nature of the claims put forward by the applicant – alongside my neurological difficulty, which directly impacts executive functioning – I do require additional time to respond in a fulsome way and therefore seek a reasonable adjustment. I also wish to bring to the attention of the court that there is an interim family violence order in place which names [X] and myself as the protected person. If it would please the court and the applicant’s counsel, I’m also willing to present [X] to the local police station to affirm she is safe and well to ease any concern. Thank you for your time and careful consideration in this sensitive matter.
So accordingly, Ms Damus seeks an adjournment of the proceedings for obvious reasons. From Ms Anders’ perspective, time is of the essence. It is her case that she has not interacted with X for now about three weeks, and for obvious reasons, it is her case that she is worried sick about the wellbeing of the child. Underpinning this is her position that, if Ms Damus had wanted to move to Melbourne and she had been appropriately advised, she would know that she should make an application to the court so that it could assess whether it was in the child’s best long-term interests that a significant decision as to where she would live could be appropriately made.
The authorities that deal with interim relocations are well known. The leading authority is a case called Morgan & Miles[2]. Essentially, the court eschews one parent taking things into his or her own hands unless there is a situation of such significant emergency concerning the safety of the child that the parent concerned really had no alternative but to move.
[2] Morgan & Miles (2007) FamCA 1230.
The controversies in this case are likely to centre on the degree of relationship between each of the parents concerned and the child.
After the withdrawal of her previous solicitors, arrangements were made for Ms Liddle, the Commonwealth funded duty solicitor, to speak to Ms Damus via the telephone. Ms Liddle as the duty solicitor is in a difficult position. She is not formally instructed. She is also to a certain extent beholden to two masters. She is an officer of the court and indeed, as a duty solicitor, has responsibilities to make the system work. She also has responsibilities to put what Ms Damus wishes her to put to the court.
In this context, Ms Liddle places significant issue on the Victorian Interim Domestic Violence Order that was granted in her favour. She applied for that order on 17 October 2022, and the order was made on 26 October 2022. I know very little about the circumstances surrounding it, but at first blush, it would seem that the Victorian authorities did not greet the matter as one needing urgent attention, but that is conjecture on my part.
It is the case that the Act places significant emphasis on protecting children from being exposed to abuse, neglect or family violence. It is a protective concern – children be protected from the psychological and physiological consequence of being exposed to family violence.
In this context, the court is directed to consider family violence orders that apply to a child but – however, in this context, it is to examine the nature of the order, the circumstances in which it was made, any evidence admitted in the proceedings for the order, any findings made by the court and any other relevant matter. In this case, it is clear that the order was an ex parte order. I have not got any of the evidence that was put in respect of the application, and it is, I think, significant the order was made after the unilateral relocation occurred.
Today, Ms Liddle also tells me that her client took domestic violence leave earlier in the year; again, I know little about that. So in these circumstances, Ms Anders persists with her application for the recovery order.
Attempts that I made to see if there could be brokered some sensible outcome of the matter in the short to medium term have failed. I attempted to explain as best I could to Ms Damus the dilemma which the case throws up.
I cannot resolve factual issues that are likely to arise between the parties at an interim stage by reading affidavit material. It is invariably the case that one party will say that he or she is the victim of violence, and the other party will say, That is not so. In fact, the contrary was the case. I am well aware that family violence is insidious in its nature, and independent corroboration is very often difficult to find. It may be a case of one party’s word against the other.
In those circumstances, the court has to put in place a response which is proportionate to the risk as it is identified, and, of course, for a child, there is a risk that a worthwhile and meaningful relationship with somebody who loves the child very much indeed will be interrupted by what later transpires to be the unjustified unilateral action of another parent. That’s the balance in this case.
Ms Damus essentially says she wants to put evidence which she contends the court will find so compelling that it justifies her unilateral action. Ms Anders asserts there is no such evidence and that the implications for this little girl of being removed from somebody who loves her unilaterally are incalculable.
Ms Damus, in answer to questions I put to her, conceded that Ms Anders is to be regarded as Ms Damus’ parent. I haven’t seen X’s birth certificate. There are certain legal complexities regarding the biological origins of the child which have not been delineated in any detail in the material before me. And I leave those issues to another day, acknowledging their sensitivity.
On the other hand, Ms Damus says that the considerations that are germane to the administration of justice in this country dictate that she should be given an opportunity to put her side of things. There must always be a balance. No doubt she refutes the suggestions that she represents a risk to the child.
She does point to what she describes as her neurological disability. I have read her email. Whether she wrote it herself or not, I do not know, but it is reasonably – well, not reasonably; it is well put together, logical. So it would seem to me – and I am told – that Ms Damus’ attempts to get her documents together are well advanced.
It does not seem to me that either party is likely to be well resourced financially. As I canvassed with Ms Liddle earlier, it is unusual that the Legal Aid authorities fund the unilateral movement of children across state borders, unless, as I say, there are extraordinary circumstances. I am told today that Ms Damus is going to fund these proceedings herself.
It is in this context Ms Anders has asserted that she is disappointed that Ms Damus has let go the accommodation she had in Suburb D. That of itself may be a complexity. The sad reality is that when a parent does something unilaterally and lets go of accommodation, there is a cascading torrent of consequences which sometimes a person in my position has to sort out. It is a balance.
I have come to the conclusion that an appropriate balance is that I should hold Ms Damus to her word that she can get her documents together expeditiously. As I told her earlier, the issues in this case are not going to go away. So I will direct that she files her answering material by close of business on 2 November 2022. That is this coming Wednesday, so she has three days to do it. And I will list the matter for interim hearing on 3 November 2022 at 10.00am.
I urge all concerned to think about what I have said and the way the case – the potential outcomes in terms of minimising the trauma to the child concerned. Ms Damus told me that she did not agree to the child going to Tasmania for seven days, that she had reservations. Whether that is so or not, I do not know. But if that did happen, that indicates, I would think, a fairly significant relationship, and it is at first blush difficult to dissolve away the unilaterality of her move. But that, no doubt, is a matter for those who are advising her at present to consider.
But balancing all the matters, the administration of justice, and Ms Damus’ entitlement to put what she wants to put and the need for the matter to be dealt with quickly – because obviously the longer it goes on, the more difficult it becomes to untangle what has occurred – I think that is an appropriate balance. Anyway, for those reasons that is what I am going to do. I will adjourn the case until next week and make orders for the filing of a response and supporting affidavit.
For these reasons, I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 7 November 2022
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