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…

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 Anders & Damus

Details

AGLC: Anders & Damus [2022] FedCFamC2F 1493
Case: [2022] FedCFamC2F 1493
Decision Date

CaseChat Overview and Summary

Ms Anders and Ms Damus, the parents of a child named X, appeared before the Federal Circuit and Family Court of Australia in an urgent interim hearing to address the issue of Ms Damus' unilateral relocation of X from Adelaide to Melbourne. The primary concern was whether Ms Damus' action constituted an unreasonable major long-term decision under the Family Law Act 1975 (Cth). Ms Anders sought a recovery order to bring X back to Adelaide, claiming that Ms Damus had not consulted with her regarding the relocation, which was detrimental to X's wellbeing and connections with family in Adelaide.

The court had to determine whether Ms Damus' relocation qualified as an emergency justifying her unilateral action, considering the best interests of X and the presumption of equal shared parental responsibility. The court also had to assess the risk of family violence and the degree of urgency in Ms Anders' request. Ms Damus, represented by a duty solicitor, requested an adjournment to gather evidence and documents to counter Ms Anders' claims, citing her neurological disability and the presence of a domestic violence order in her favor.

In its reasoning, the court acknowledged the importance of protecting children from family violence and the need to balance the rights of both parents. The court decided to grant an adjournment to allow Ms Damus to prepare her response, while also issuing orders for interim communication between Ms Anders and X. The court emphasized the need for a swift resolution to minimize the potential trauma to X, setting the next hearing for 3 November 2022. The court highlighted the importance of both parents participating in decision-making processes concerning their child and urged the parties to consider the best interests of X in reaching any resolution.

The court ordered that Ms Anders is to have communication with X via electronic means on specific dates, with the communication to be limited to 15 minutes and supervised by Ms Damus' partner. Ms Damus was directed to file and serve her response and supporting affidavit by close of business on 2 November 2022. The matter was further adjourned to 3 November 2022 at 11.30am (SA Time) to be heard via MS Teams.

Orders