Anders & Damus (No 2)
[2022] FedCFamC2F 1500
Federal Circuit and Family Court of Australia
(DIVISION 2)
Anders & Damus (No 2) [2022] FedCFamC2F 1500
File number(s): ADC 4751 of 2022 Judgment of: JUDGE BROWN Date of judgment: 7 November 2022 Catchwords: FAMILY LAW – 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) Pt VII, ss 4AB, 60B, 60CA, 60CC, 60H, 61DA, 65C, 65D, 65DA, 65DAA, 69R Cases cited: B v B: Family Law Reform Act 1995 (1997) FLC 92-755
C & S [1998] FamCA 66
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Anders & Damus [2022] FedCFamC2F 1493
Marvel & Marvel (No 2) [2010] FamCAFC 101
Mazorski v Albright (2007) 37 FamLR 518
Morgan & Miles (2007) FamCA 1230
Russell & Russell & Anor [2009] FamCA 28
Sampson & Hartnett (No 10) (2007) FLC 93-35
Slater & Light [2013] FamCA 4
SS v AH [2010] FamCAFC 82
U v U (2002) 211 CLR 238, 263
Division: Division 2 Family Law Number of paragraphs: 147 Date of hearing: 3 November 2022 Place: Adelaide Counsel for the Applicant: Mrs Read Solicitor for the Applicant: Phoenix Family Law Counsel for the Respondent: Ms D’Angelo Solicitor for the Respondent: Farrar Gesini Dunn 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:
7 NOVEMBER 2022
THE COURT ORDERS THAT:
1.Within 10 days of the today’s date the Respondent do cause the child X born in 2019 (hereinafter referred to as the child) to return to live in the Adelaide metropolitan area at her own expense NOTING that should the Respondent fail to return the said child, the Applicant is at liberty to make an application to the Court for a recovery order on short notice.
2.Within 24 hours of the child’s return to Adelaide, she spend a period of 7 consecutive days in the care of the Applicant.
UNTIL FURTHER OR OTHER ORDER:
3.Should the Respondent also elect to return to live in the Adelaide metropolitan area, within a radius of 10 kilometres of where the Applicant currently lives at Suburb E, the Applicant spend time with the child from 4.30pm each Friday until 9.00am the following Tuesday with the child is to live with the Respondent at all other times NOTING such time is to commence on the closest Friday to the conclusion of the time spending in paragraph 2 of these orders.
4.All handovers are to be at a location to be agreed but failing agreement out front of the residence of Ms F with Ms F to facilitate such handover and the Applicant to remain inside her vehicle at all times.
5.That each of the parties, their servants and agents are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party to, with or in the presence or hearing of the child and from permitting any other person to do so;
(b)From utilising or subjecting the children to any form of chastising or physical discipline or from permitting any other person to do so;
(c)From changing the child’s primary residence outside of the Adelaide metropolitan area.
6.Pursuant to s 62G (3A) & (3B) of the Family Law Act 1975 (Cth), the parties and the child X born in 2019 (the child) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
7.Part 1 of the event will occur by video, using Microsoft Teams, on 8 February 2023 with:
(a)the Applicant to attend at 9.00am;
(b)the Respondent to attend at 10.30am; and
(c)Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
8.Part 2 of the event will occur in person at the Adelaide Registry at 3 Angas Street, Adelaide at 9.00am on 10 February 2023. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
9.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
10.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
11.Not later than 4.00pm on 14 November 2022 the parties must provide their contact telephone numbers and email addresses to [email protected].
12.Pursuant to paragraph 5 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the child;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child; and
(f)an observed interaction between the parties and the child.
13.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
14.The Court Child Expert will be at liberty to inspect any material filed by the parties.
15.Further consideration of this matter is otherwise adjourned to 22 February 2023 at 9.30am for directions to take place at Court on a face to face basis.
16.Liberty to the parties to apply on short notice regarding issues in dispute such as Christmas spending time and the child care in which X is to attend.
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 (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
This is a relocation case, which occurs at an early interim or provisional stage. Relocation cases arise, when one parent of a child wishes to move away from the other parent concerned, very often for compelling personal reasons.
Such cases are inherently complicated, involving as they do, competing principles of right. On the one hand, Australia is a free and democratic country, which prizes the rights of its citizens to live how and where they choose.
On the other hand, pursuant to the provisions of the Family Law Act 1975 (Cth),[1] children have a right to maintain relationships with those who have a significant interest in their care, welfare and development. Most usually these individuals are a child’s parents, but also include other members of the child’s family, particularly grandparents.
[1] Hereinafter referred to as ‘the Act’.
In relocation cases, these considerations invariably fall into conflict, which the court must resolve. This is particularly difficult, at an early interim stage, when the evidence available to it is often both scant and controversial.
In such circumstances, the law eschews relocation issues being determined, on a final basis, against a background of recent development, which has earlier significantly altered the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[2]
[2] C & S [1998] FamCA 66.
Essentially, the court cannot endorse a parent exercising some degree of self-help in respect of the relocation of a child, unless there is some special circumstance of emergency relating to the health or safety of either parent or child, which justify the self-help in question. Issues of relocation are best determined, when all relevant evidence has both been gathered, subject to scrutiny and carefully considered by any relevant judicial decision-make.
The High Court has indicated that any case involving a relocation aspect requires close and delicate analysis, in order to ensure that the service of the best interests of any child concerned is achieved. At the same time, the court is not in a position to ignore a parent’s entitlement to freedom of movement. Clearly, such intricate analysis may be rendered otiose if an exercise of unilateral relocation is endorsed, at an early stage, by the Court.
Ms Anders and Ms Damus began to live together in early 2014 and married in 2020. They are the parents of one child, X, who was born in 2019. I have recently been provided with a copy of X’s birth certificate, which indicates Ms Damus is entered as X’s mother; whilst Ms Anders is noted as her co-parent.
The parties have not provided extensive evidence regarding X’s conception. I acknowledged that it is a sensitive matter and I have no desire to pry into it. However, the issue may have some legal implications, germane to Ms Anders’ status in these proceedings.
In her affidavit recently filed, Ms Damus speaks of the parties going through what she describes as the fertility process.[3] She does not elaborate further. She also alleges, in the context of a significant illness then and now suffered by Ms Anders, she felt pressured into agreeing to such a process.
[3] See affidavit of Ms Damus filed 2 November 2022 at [13].
Pursuant to section 69R of the Act, there is a rebuttal presumption that, if a person’s name is entered, as a parent of the child, in a register of births, that person is a parent of the child concerned. The expression artificial conception procedure is defined in section 4 of the Act and includes artificial insemination and the implantation of an embryo.
As previously indicted, Ms Anders and Ms Damus married in 2020, which was prior to X’s birth and obviously before her conception. However, there seems no controversy that the parties were in a de facto relationship with one another, long prior to X’s conception.
Pursuant to the provisions of section 60H, where a child is born as a result of an artificial conception procedure and the woman who gave birth to the relevant child, in circumstances in which either the spouse or de facto partner of that woman consented to the carrying out of the artificial conception procedure, the resulting child is regarded as being the child of the woman giving birth and the other intended parent.
In all these circumstances, I am satisfied that both Ms Anders and Ms Damus are to be regarded as X’s parents. Essentially, Ms Damus is not to be regarded as having any pre-eminence over Ms Anders on account of the fact that she is X’s birth mother.
Pursuant to the provisions of section 65D of the Act, the court is empowered to make whatever parenting order it considers proper. Accordingly I am satisfied that I have authority to make orders in respect of X in order to resolve the current controversy arising between them. In so doing, X’s best interests are the paramount or most important consideration.
background
Ms Anders was born in Country G in 1986. She arrived in Australia in 1995. By occupation, she is a professional, who works from home. Ms Damus was born in 1988. She has been employed as a carer, but has recently left her position to move to Melbourne.
There is no dispute between the parties that they finally separated on 20 July 2022. On this date, Ms Anders left the parties’ former family home in Suburb D and moved in with her parents. More recently, Ms Anders has obtained rented accommodation, for herself, at Suburb E. During the entirety of their relationship and subsequent marriage, there is no controversy that the parties lived in Adelaide, where each have strong familial connections.
After the parties separated, Ms Damus formed a new relationship with Ms H, who lives in the Melbourne suburb of Suburb J. Ms Damus does not dispute that she frequently travelled to Melbourne, on weekends, so that she could spend time with Ms H, after separation. In these circumstances, it is Ms Anders’ position that she would collect X on Saturday mornings and return her to Ms Damus’ care on the following Tuesday morning.
In addition, it is Ms Anders’ evidence that X spent frequent time with her (Ms Anders’) parents, whom she regards as being X’s grandparents. Further, Ms Anders asserts that she took X on a seven day holiday to Tasmania earlier this year. In all these circumstances, it is her case that she has always been an involved and hands on parent, notwithstanding her work responsibilities.
It is common ground between the parties that the last occasion on which Ms Anders physically interacted with X was on 4 October 2022 and shortly thereafter she became aware that Ms Damus had moved, with the child, to Victoria, where she had commenced to live in Ms H’s home.
In these circumstances, it is Ms Anders’ position that she was neither consulted about nor consented to the move of X from Adelaide, where she has lived since she was born and where she has familial connections on both sides of her family, as memorialised by her birth certificate.
Accordingly, Ms Anders would characterise Ms Damus’ actions as unilateral, precipitate and ill-considered so far as X’s best interests are concerned, particularly in regards to the child’s entitlement to maintain a level of meaningful relationship with those who are significant to her care, welfare and development.
In these circumstances, Ms Anders sought legal advice and filed an urgent application seeking a recovery order in respect of X. At her request, the application was given an urgent return date, before a Registrar of the court, on 24 October 2022. Ultimately, the case came before me on 28 October 2022, on which occasion I agreed to briefly adjourn the matter and provided extensive reasons in support of this decision.[4]
[4] See Groves & Damus [2022] FedCFamC2F 1493.
On 28 October 2022, Ms Damus was unrepresented. She indicated to me that she had felt compelled to move to Melbourne, with X, because she had been subject to serious family violence instigated against her by Ms Anders.
In addition, she pointed to the fact that she and X were nominated as protected persons in an Interim Domestic Violence Order, which had obtained from the Magistrates Court of Victoria.
Prior to the adjourned date, Ms Anders took the opportunity to answer the allegations of family violence made against her. In this context, she has deposed as follows:
I say the Respondent has made many allegations against me all of which are denied. These are lacking any specificity so I can only respond in that I have never physically or sexually assaulted the Respondent and I have never acted in a way to intimidate, threaten or control her. On occasion during arguments the Respondent has become physically and verbally aggressive towards me; I have responded in self-defence where necessary. Further I have never caused harm or neglect to [X] nor caused her to be at risk of any harm.
I acknowledge that we have had numerous arguments and especially since [X] was born as I have been very concerned at the Respondent’s inability to cope with parenting at the same time as her other issues including her mental health and job stresses. Her behaviour towards [X] and me was often very scary and I did what I could to advocate for and protect [X].[5]
[5] See affidavit of Ms Anders filed 31 October 2022 at [9]-[10].
As indicated in the earlier orally delivered reasons[6], it is Ms Anders’ position that Ms Damus has significant mental health issues, which impact on her capacity to parent X appropriately.
[6] See Anders & Damus [2022] FedCFamC2F 1493.
As is a common occurrence, in this day and age, when the majority of parents are compelled to engage in the paid workforce to ensure the financial support of their family, X has been placed in child care on several days each week, since she was a child. She has attended the B Children’s Centre in Suburb C.
The director of this centre is Ms Anders’ sister. This has been a source of some controversy between the parties. At the present time, it is clear to me that there is a significant level of rancour and mistrust between the two aspects of X’s family, which no doubt has been exacerbated by the circumstances in which the child was taken to Victoria.
It is Ms Damus’ position that she elected to move to Melbourne because she felt unsafe in Adelaide as a consequence of her being subject to verbal and emotional abuse, from Ms Anders, which she asserts was having adverse implications for X. As indicated above, Ms Anders vehemently refutes these allegations.
In this context, Ms Damus categorises herself as the primary caregiver and birthing parent of X. Essentially, as I understand her position, she asserts that X’s wellbeing will be significantly compromised, if she (Ms Damus) is compelled to return to Adelaide, a location where her primary caregiver feels unsafe and unhappy because of the violent and controlling behaviour of Ms Anders.
Ms Damus’ allegations of family violence can be summarised as follows:
·In April of 2015 Ms Anders struck her with a closed palm;
·Ms Anders has forcibly grabbed her, by the shoulders, on numerous occasions;
·In October of 2019, Ms Anders slapped her hard on the arm;
·Ms Anders has subjected her to verbal abuse;
·Ms Anders has subjected her to emotional abuse, including sending her unsupportive emoji’s.
It is also Ms Damus’ assertion that Ms Anders has issues to do with her psychological health. In addition, regrettably, Ms Anders suffers from cancer. The parties have fundamentally different views as to the implications of this condition for the management of this case. It is clearly a sensitive issues, in respect of which no expert evidence has been provides.
Ms Damus concedes that she has been diagnosed with anxiety and depression over many years and has received treatment for her condition. In addition, she was more recently diagnosed with Attention Deficit Hyperactivity Disorder. Again the expert evidence in respect of these issues, particularly in regards to their practical implications so far as the adequacy of provision of care to X, is scant, to say the least.
In this context, Ms Damus asserts that her various conditions are better supported, in Melbourne, where she has recently engaged with a variety of mental health practitioners. She further asserts that as a consequence of no longer having to interact with Ms Anders, her mental health has improved considerably and she no longer feels anxious.
Ms Damus also alleges that Ms Anders herself has significant deficits in regards to her own level of psychological functioning, particularly in regards to controlling her temper. It is her case, as I understand it that these alleged failings have implications for Ms Anders’ capacity to properly parent X.
the nature of an interim hearing
Interim hearings very often arise against a background of serious family crisis and controversy. Obviously this is the situation in the present matter. Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously.
The need for such expedition dictates that the hearing concerned should be truncated. As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.
Accordingly, the evidence available before the court at the interim stage is limited. As a consequence, any orders made by the court, at this stage, are provisional in nature, pending a further and more detailed inquiry or series of inquiries. As previously noted, interim hearings are particularly unsuited to the long term resolution of controversies involving issues of relocation.
Given the nature of the hearing, the various factual issues in dispute, between the parties, cannot be resolved in the context of these interim proceedings. In this particular case, a major controversy is likely to be the nature of X’s relationship with each of her parents and whether the parties’ personal relationship was characterised by issues of family violence, and if so, its degree and nature.
Such issues are likely to be significantly illuminated by a family report or psychological assessment of the family. At the interim stage, it is rarely the case that there has been sufficient time for such an independent expert report to be prepared. That is the position in the present matter. Clearly, X’s family is marked by an extreme level of conflict at present and she has not interacted directly, with any of her Adelaide based family for a significant period of time.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[7]
[7] See Goode & Goode (2006) FLC 93-286 at 80,901 [68].
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.
In this case there are few agreed facts, but what can be gleamed from the various affidavits can be summarised as follows:
·After separation, Ms Anders cared for X from Saturday morning until the following Tuesday morning. For the remainder of the week, X was in Ms Damus’ care;
·Ms Anders took X to Tasmania for a seven day holiday in August 2022;
·X attended B Children’s Centre at Suburb C for up to 3 days per week;
·Both parties were employed, following separation;
·Ms Damus’ relocation of X to Melbourne was unilateral, in the sense that she did so without obtaining Ms Anders’ agreement.
The factual issues in dispute between the parties can be summarised as follows:
·What was the nature of their relationship? In particular, who was the major protagonist of family violence between them and what are its implications, if it occurred, for X herself;
·What are the implications for X’s care and ongoing security, in the context of the parties’ competing allegations regarding the other parent’s psychological fragility and lack of insight into the responsibilities of being a parent.
In my assessment, these issues cannot be resolved in the context of the current interim hearing, given the paucity of expert evidence regarding the mental health of each of the parties concerned and the lack of any independent family report.
In this context, it is the responsibility of the court to assess the degree of risk, arising for X, in the present matter. This assessment of risk cannot be deferred until some later stage, when more evidence is likely to be at hand.
family violence
Family violence is defined by section 4AB(1) of the Family Law Act 1975. It means:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she sees or hears family violence or otherwise experiences the effects of family violence. It is Ms Damus’ case that X has been exposed to family violence because she (Ms Damus) was holding her when she and Ms Anders were having a verbal altercation at separation.
In assessing cases involving allegations of family violence, the court needs to be aware of the nature of family violence, in general terms. Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.
Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred. However, the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.[8] In addition, the court is not in a position to defer its obligation to assess the implications of family violence, for any child, because of the limited nature of the evidence available to it.
[8] See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J.
Family violence is not homogenous in its qualities and can arise in a variety of contexts. It is also well recognised, including by the legislature through the provisions of the Act, that family violence is prevalent in all walks of Australian society and represents a great threat to the wellbeing of children.
Family violence can place children at actual physical risk of being hurt. It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened. For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, to more systematic and deliberate behaviour arising from a clear power imbalance between the parties concerned. Obviously, the latter type of behaviour is more damaging, so far as children are concerned. But not all incidents of family violence will be damaging for a child.
issues to do with relocation
At the earlier stage, when the proceedings were adjourned, I attempted to outline some of the principles applicable to relocation cases.
The legal principles applicable are complex. I will not endeavour to outline them exhaustively. Rather, given the nature of this truncated hearing, I will attempt to outline the salient ones in abbreviated bullet form. References in square brackets are to the Family Law Act 1975.
·The best interests of the children are the paramount or most important consideration [section 60CA];
·The court is to ensure that children have the benefit of both their parents having a meaningful involvement in their lives [section 60B(1)(a)];
·Parents are encouraged to agree about future parenting arrangements of their children, including in respect of major long term decisions, which include changes to a child’s living arrangements, which make it significantly more difficult for the child to spend time with a parent [section 60B(2)(d) & (4)];
·In determining the best interests of the child, the court must consider two matters primarily, namely:
·The benefit to the child of having a meaningful relationship with both of his/her parents; and
·The need to protect the child from physical or psychological harm from being subjected to or being exposed to, abuse, neglect or family violence [section 60CC(2)];
·The court is to give greater weight to protective concerns [section 60CC(2A)];
·The presumption of equal shared responsibility is open to rebuttal, at the interim hearing stage, if it is not appropriate for it to be applied;
·In assessing the degree of risk incumbent, in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will its severity, to any individual, particularly any child, who will be potentially affected by it;[9]
·In assessing risk, the court must put in place responses which are proportionate to the degree of risk so assessed. If a risk is unacceptable it should not be accepted.
·Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent. These concerns are particularly pressing in respect of young or immature children;
·It is not desirable for long-term arrangements, for a child, to be determined in an abridged interim hearing;
·As such, it is usually in the best interests of children that issues of relocation be determined, at final hearing, in the context of pre-existing care arrangements, rather than in circumstances which have been engineered to the advantage of one parent, through unilateral actions;
·However, in some cases, there may be circumstances of sufficient emergency, which justify unilateral action, by a parent, including relocation; [10]
·In the context of an interim hearing, which necessarily precludes the court from making concluded findings of fact, the court must do its best to assess the degree of emergency confronting the parent concerned.
[9] See Deiter & Deiter [2011] FamCAFC 82.
[10] See Morgan & Miles (2007) FamCA 1230.
other issues
At the conclusion of the previous history, after I had attempted in a summary and oral fashion to explain to the parties the issues and difficulties which confront the court, at the interim hearing stage, in cases involving unilateral relocation of a young child.
I urged the parties to consider how X herself could be spared unnecessary emotional disruption and in this context invited the parties to see if there was any consensual way forward in the short to medium term. These requests fell on deaf ears.
In her response filed on 2 November 2022, Ms Damus seeks the court’s approval to live with X, in Melbourne, on both an interim and final basis. She also seeks to be conferred with sole parental responsibility for the child. Significantly, in my view, Ms Damus has no proposals for Ms Anders to interact, with X, in any way, other than as determined by this honourable court.
In these circumstances, I invited Ms Damus’ solicitor, Ms D’Angelo, to confer with her client as to what would be proposed if the court’s determination was that X should return to live in Adelaide, pending the final determination of the parties’ competing applications.
In these circumstances, Ms D’Angelo informed me that Ms Damus would not consider living in Melbourne, without X, but would reluctantly return to Adelaide under sufferance. She would be able to live in Adelaide, pending obtaining alternative accommodation, given she had surrendered the Suburb D property, with her mother, Ms F, albeit Ms F’s house was very small.
In these circumstances, Ms D’Angelo indicated that her client would only consider Ms Anders having rigorously professionally supervised time, at a children’s contact centre occurring between X and Ms Anders. The rationale for this proposal being the Ms Damus felt intimidated by Ms Anders.
It is Ms Anders’ position, at both an interim and final basis, that the parties be conferred with equal shared parental responsibility for X. She seeks the preparation of a Child Impact Report. In addition, in oral submissions, her counsel Mrs Read submitted that her client was open to a resumption of the care arrangements, which existed prior to X’s unilateral relocation to Melbourne. However, prior to such reinstatement her client sought to spend an extended period of time, with the child.
Ms Damus sought a period of 28 days in order to return to Adelaide from Melbourne. From Ms Anders’ perspective, this was took long and she proposed it be around 7 days.
Ms F has provided an affidavit in these proceedings. Ms D’Angelo deposes that she has a very strong relationship with X, whom she saw almost daily, until recently. Ms F deposes that for the past 12 months or so the environment between Ms Anders and Ms Damus has been very tense and consisted of constant bickering.[11] In this context, Ms F has the following criticisms of Ms Anders:
·Ms Anders has berated Ms Damus calling her stupid;
·Ms Anders has undermined Ms Damus in her disciplining of X;
·The Anders family are known to be big drinkers;
·In early 2022 Ms Anders used a loud and aggressive tone towards X;
·Ms Anders would become really frustrated with some aspects of X’s behaviour.
[11] See affidavit of Ms F filed 2 November 2022 at [24].
Ms Anders, in her affidavit material, has deposed that it is Ms Damus, who struggles with parenting X and it she who has angry outbursts. She alleges that this has led to Ms Damus smacking X. In these circumstances, Ms Anders asserts that she is worried X is at risk of harm because of Ms Damus’ labile behaviour, which is precipitated by her mental health issues.
Underpinning Ms Anders’ case is her concern that X is likely to be confused and distressed because she has not seen her or her Adelaide-based grandparents, whom she will be missing. In addition, Ms Anders alleges Ms F has her own mental health issues and, in the past, Ms Damus has been very dependent on her own mother to assist in parenting X.
In short, each of the parties is highly critical of the other – largely in the same terms – namely of emotional instability, which has led to the compromised parenting of X. In addition, both Ms Anders and Ms Damus are critical of the other side of X’s extended family.
It is in this context that the allegations of family violence must be examined. In my view, it would be naïve for the court to consider that Ms Damus had only one motivation for moving to Melbourne, namely her fear of Ms Anders. For obvious reasons, her desire to consolidate her relationship with Ms H must be considered a highly influential factor, given the two are no cohabiting and Ms Damus concedes the two are in a relationship.
As I have indicated, given the structure of the Family Law Act 1975, the court is obligated to take allegations of family violence seriously. It is not necessary for a party to provide incontrovertible proof that he or she has been the subject of such violence. However, in assessing risk, the court must still look to the context in which the allegations of family violence have been made, in order to assess the degree of risk to the party and any child concerned.
Ms Damus has successfully applied for a family violence order. The court is obligated to examine the circumstances in which the order was made, including the nature of the evidence provided and whether it was contested [section 60CC(3)(k)]. This was an ex parte order.
Ms Damus provided a densely typed statement to Victorian Police, which started with her complaining of being subject to looks, raised voices. Although it is a long statement, it is necessary to include it in full. Although some of the matters complained of, depending on context, may fall within the statutory definition of family violence, I agree with Ms Anders’ characterisation of them as lacking specificity. As previously indicated, Ms Anders denies any physical or sexual assault of Ms Damus.
For reasons, which are unclear to me, notwithstanding the fact that she relied on the existence of the family violence order to adjourn the case, Ms Damus did not elect to provide the statement she provided to police. Rather, Ms Anders provided it to the court. I would characterise it as having a stream of consciousness quality to it. It is a follows: (as typed):
LOOKS, RAISED VOICE, RECKLESS DRIVING (TAILGATING AND GOING CLOSE TO CARS PASSING ON PASSENGER SIDE) AS WELL AS BY SUBTLE THREATS VIA TEXT MESSAGE. THE RESPONDENT HAS REFUSED TO ASSIST WITH PAYING BILLS, LEFT THE HOUSE WE WERE RENTING FULL OF RUBBISH FOR ME TO DISPOSE OF AT MY OWN COST AND LEFT THE STORAGE LOCKER WE HAD FULL OF JUNK FOR ME TO DISPOSE OF AT MY OWN COST. THE RESPONDENT HAS MISLEAD ME ABOUT BANK ACCOUNTS AND ASKED ME TO PUT IN MORE MONEY THAN REQUIRED, SHE HAS ALSO LET LOANS DEFAULT AND MADE ME FINANCIALLY DEPENDENT ON HER. THE RESPONDENT HAS NOT LET ME HAVE ANY FREEDOM OVER BUYING CLOTHES FOR MY CHILD OR DOING FOOD SHOPPING, SHE WOULD WATCH OVER ME AND QUESTION ME, ASKING TO LOOK OVER SHOPPING CARTS BEFORE I PURCHASE THEM AND GETTING ANNOYED WHEN I DON’T RUN PURCHASES BY HER FIRST. THE RESPONDENT HAS PRESSURED ME TO CONTINUE FERTILITY TREATMENT, BOOK A WEDDING VENUE AND SET A DATE FOR WEDDING. SHE HAS ALSO PRESSURED ME TO LET HER TAKE OUR DAUGHTER ON A LONG HOLIDAY DESPITE IT NOT BEING DEVELOPMENT AGE APPROPRIATE.
THE RESPONDENT HAS MADE LIGHT OF THE ABUSE AND NOT TAKEN MY CONCERNS SERIOUSLY. SHE HAS NOT ACCEPTED RESPONSIBILITY FOR SELF OR ACKNOWLEDGED PAST USE OF VIOLENCE. THE RESPONDENT HAS CLAIMED THAT THE ABUSE HAS NOT HAPPENED AND WOULD SHIFT RESPONSIBILITY. THE RESPONDENT HAS SAID THAT I AM THE CAUSE AND THAT IF I WAS HAPPIER THINGS WOULD BE OKAY. THE RESPONDENT HAS THREATENED TO BREAK UP WITH ME AND CAUSE ME TO BE AFRAID DUE TO THE WAY SHE LOOKS AT ME AND THE MIND GAMES THAT SHE PLAYS WITH ME, IN ORDER TO CONFUSE AND CONTROL ME. THE RESPONDENT CONTROLS WHO I SEE AND TALK TO AND AS A RESULT MYSELF AND OUR DAUGHTER HAVE BEEN LEFT FEELING ISOLATED FROM FRIENDS AND FAMILY. THE RESPONDENT HAS VIOLATED MY RIGHT TO FEEL SAFE AND HAVE AGENCY OVER THOUGHTS, ACTIONS AND DECISIONS. THE RESPONDENT HAS USED COERCION AND GASLIGHTING TO MANIPULATE ME INTO AGREEING TO DECISIONS MOST FAVOURABLE TO HER. THE RESPONDENT HAS PICKED AND BELITTLED ME FOR THE WAY THAT I DO THINGS INCLUDING HOUSE WORK AND CHILD BEARING. THE RESPONDENT HAS CONTINUED TO WORK FROM HOME WHEN NO LONGER NECESSARY, IGNORING MY REQUESS FOR PRIVACY AND TIME ALONE WITH OUR DAUGHTER.
THE RESPONDENT HAS CONSISTENTLY BULLIED AND CONTROLLED ME THROUGHOUT THE RELATIONSHIP TO THE POINT OF ME LOSING FREE WILL AND AGENCY THROUGH TO COERCIVE CONTROL. THE RESPONDENT HAS CAUSED ME TO FEEL FEARFUL FOR OUR DAUGHTER’S PHYSICAL AND MENTAL HEALTH. THE RESPONDENT HAS BLOCKED ME FROM TAKING HER TO MEDICAL APPOINTMENTS AND GASLIGHTED ME INTO NOT TAKING HER FOR ASSESSMENTS FOR THINGS SUCH AS ADHD, ASD AND ODD. THE RESPONDENT HAS BULLIED AND ABUSED ME TO THE POINT OF MENTAL EXHAUSTION. INCIDENTS OF FAMILY VIOLENCE HAVE INCREASED AND I AM SEEKING AN INTERIM ORDER FOR IMMEDIATE PROTECTION.[12]
[12] See Annexure C to affidavit of Ms Anders filed 31 October 2022.
Both parties are frequent and adept text messagers. I have been provided with many of their text messages. I am not in a position to interpret their tone, subtle or otherwise. It strains my credulity to suggest that an emoji can be threatening. However, I concede that this may also reflect the fact that I am of a generation that has not grown to maturity in an age when such things have become part of the lingua franca of the times.
It is Ms Damus’ positon that she has sought support from a domestic violence service in Melbourne. In this context, a senior family violence practitioner has administered a psychometric risk assessment test to Ms Damus in order to assess her status as a person subjected to family violence. She has been assessed as a high risk on the basis of the results of this test and what she said in interview.
The relevant practitioner reported as follows:
[Ms Damus] disclosed a situation prior to the relationship ending, [Ms Damus] and the respondent engaged in a significant verbal argument whilst [Ms Damus] was holding [X] in her arms, [Ms Damus] reported [X] was heightened including screaming & crying due to the parental conflict.[13]
[13] See Annexure -2 to affidavit of Ms Damus filed 2 November 2022.
As previously indicated each party acknowledges that their relationship, in its latter stages, was characterised by conflict and disputation. As such, regrettably, it seems inevitable that their child would have been aware of it. It is not possible for me to determine whether one of the parties was the main protagonist and so exposed the other to coercive control or whether, in the jargon, this was a case of situational conflict, in which both parties behaved inappropriately because of the emotional stress of their situation.
Given the lack of involvement of Ms Anders in the assessment tool, I consider I must approach it with some caution. In my view, the greatest protection for X, in the context of her risk of being re-exposed to family violence is that her parents are now separated and living in different households.
At the interim stage, it is difficult for the court to characterise episodes of family violence and make precise findings in respect of allegations made. As with other aspects of abuse, it is a question of the court endeavouring to assess the relevant level of risk from any particular circumstance arising from the case.
This case involves other aspects of risk which relate to each of the party’s assertion that the other’s allegedly compromised mental health represents a threat to X’s welfare. In Ms D’Angelo’s submission this is a factor which militates in her client’s favour to remain in Melbourne, whilst more expert information is gathered about Ms Anders in particular.
In my view, there are other species of risk arising for X, namely the risk she will be deprived of having a meaningful level of relationship with a parent (Ms Anders) who loves her on the basis on inchoate and uncertain allegations. In my assessment, this is a very significant risk indeed, given that it is the case that Ms Anders has hitherto been significantly involved in providing care to X.
best interest & Parental responsibility
It is necessary to cast the issue of any unilateral relocation of a child within the overall legislative context of the family law regime, as it pertains to children. In cases such as the present one, invariably its plays out in the context of the interplay between the two primary considerations – protective concerns vis-à-vis the benefits of parental involvement.
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
As indicated above, there are two primary considerations, which are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations to give greater weight to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration. Future protective issues for a child are the court’s priority. Not punishing a parent for any past failing.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[14] Brown J indicated that a meaningful parental relationship is one which is important, significant and valuable to the child concerned.
[14] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26].
This is the gist of Ms Anders’ case. It is her position that Ms Damus’s move to Melbourne has had the effect of denying X of the benefit of having a sufficiently meaningful level of relationship with her. Essentially, Ms Damus has dictated to her, X’s co-parent, what should be the nature of the child’s relationship with her (Ms Anders). In this context, Ms Anders asserts that this is not in keeping with the other all ethos of Part VII of the Act.
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).
There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (b); (i); (j); and (k) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;
·Any family violence involving the child or a member of the child’s family;
·Any family violence order applicable;
·The subparagraph relevant to family violence orders, subparagraph (k), directs that the court can take into account the following matters arising from any applicable family violence order:
·The nature of the order;
·The circumstances in which the order was made;
·Any evidence admitted in proceedings for the order;
·Any findings made by the court in the relevant proceedings;
·Any other relevant matter.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[15]
[15] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755.
In this sense, the court’s inquiry is a positive one tailored to the best interests of the particular children and not children in general…[16] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[17]
[16] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,220.
[17] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J.
The primary considerations are generally to be given more emphasis, arising as they do directly from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
In the context of an abridged hearing, the court is directed to consider, where appropriate, each relevant section 60CC criteria, whilst being aware of the limited and contested nature of the evidence likely to be available.
Whenever the court makes a parenting order, in respect of a child, it is mandatory that it consider the application of the presumption of equal shared parental responsibility be applied to the parents concerned, given the importance the legislature places on both parents being closely involved in their child’s life [section 61DA] – so long as this involvement is commensurate with protecting the children concerned from harm.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending substantial and significant periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression substantial and significant time is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned. Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
The clear import of section 60B; 61DA; and 65DAA is that the Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions.
Clearly, any unilateral relocation of a child, far away from the other parent concerned, must have implications for any such active parental engagement. It also must act as a bar to consensual parental decision making. Again, this is a major theme of Ms Anders’ case. Clearly, she was not consulted about X’s move to Melbourne. Axiomatically, it was a major decision so far her on-going care was concerned.
How parental responsibility is conferred by the court is through the making of a parenting order. Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order.
Accordingly, in my view, the applicant and respondent have legislative authority to seek the orders, which they do. In the present matter, it is clearly the case that each of the parties is interested in the care, welfare and development of X. Again considerations of this kind militate against a parent making a unilateral decision in respect of a major long-term decision in respect of a child.
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Conclusions
In the present matter, on her case for compelling reasons, Ms Damus took it upon herself to make a major long-term decision regarding X. She unilaterally decided that her relationship with the person legislatively recognised as a co-parent could be significantly truncated, for possibly an indeterminate period of time, in circumstances in which she (Ms Damus) had no proposals for the provision of any support for such a relationship.
Given X’s tender years, such a move, if subsequently ratified by the court, even on a provisional basis, must have significant implications for her capacity to have a meaningful level of relationship with Ms Anders, which the legislature endorses as the optimal level of parental engagement for a child.
In my view, the court should only take such a significant step, particularly at an interim stage, if there exists serious reasons, relating to the protection of the child concerned or a parent, which warrant it. The court cannot condone unilateral actions in respect of care arrangements for a child, unless it is objectively justified.
In the present case, I consider that I would be naïve to consider that understandable and legitimate personal reasons, not necessarily focussed on X, particularly Ms Damus’ desire to consolidate her relationship with Ms H, were anything other than a major factor motivating Ms Damus’ unilateral action, rather than the protective concerns now elaborated by her.
In all these circumstances, I do not consider the situation, which confronted Ms Damus in early October, was one of such significant emergency as to warrant her moving X many hundreds of kilometres away from a person who had hitherto been significantly involved in her care, welfare and development.
I acknowledge that the issues of family violence raised by her are potentially serious and I have attempted, as best I can, in the context of an interim hearing to ascertain their degree of potency and any risk potentially arising for X of being exposed to such violence and tried to weigh up the parties competing claims against each other.[18]
[18] See SS v AH [2010] FamCAFC 82 at [61].
There is limited, if any, objective evidence to indicate their level of seriousness. Rather, the gravity of Ms Damus’ case largely relies on her own subjective judgment, which is refuted by Ms Anders, who raises her own allegations of family violence and mental incapacity in regards to Ms Damus.
I do not consider that the risk arising in this case, represented by the allegations of family violence against Ms Anders, is so extreme that it would be unacceptable for the court to countenance X resuming her relationship with Ms Anders, in some form or other, based on the child returning to live in Adelaide, particularly given the co-parents concerned are likely to be living in separate households.[19]
[19] See Slater & Light [2013] FamCA 4.
In my view, the greater risk to X is represented by the risk of her losing her relationship with Ms Anders or having that relationship retarded, at a significant stage of her developmental trajectory, on the basis of inchoate allegations of family violence, which are strenuously denied. This risk will intensify the longer X remains in Melbourne away from Ms Anders.
These conclusions dictate that X must return to live in Adelaide pending the resolution of the parties’ competing parenting applications. I appreciate that this outcome will be difficult and confronting for Ms Damus and is likely to be personally inconvenient. However, as I indicated in the ex tempore judgment of 28 October 2022 unilateral actions often lead to a cascading torrent of consequences.
It is unfortunate that Ms Damus has let go of her accommodation in Suburb D however, in my view, this is not a circumstance of sufficient moment, given that it originated in decisions falling solely in Ms Damus’ ambit, which can justify the child remaining in Melbourne. On balance, I think a period of 10 days is an appropriate time for Ms Damus to make the necessary arrangements to deliver the child to Adelaide.
I have no authority to compel Ms Damus to live in a location which is unpalatable to her. However, I am satisfied that I have the authority to determine that, in the eventuality she elects to remain living in Melbourne, that X should come into the care of Ms Anders.[20] If Ms Damus fails to comply with the order, I will direct that a recovery order issue in respect of X on Ms Anders making any such application, which will be dealt with on short notice.
[20] See Sampson & Hartnett (No 10) (2007) FLC 93-350.
As I have been advised, Ms Damus does not propose to live in Melbourne, away from X. If she returns as indicated, I will direct that the child live with each of her parents, on a shared care basis, being with Ms Anders from 4.30pm each Friday until 9.00am the following Tuesday and otherwise live with Ms Damus. In order for this to be effective the parties need to live in reasonable proximity to one another and, in this regard, I propose a radius of ten kilometres of Ms Anders’ home in Suburb E.
At the present time, I am not in a position to resolve the contentious issue regarding which child care centre X should attend, given Ms Damus objects to the B Children’s Centre at Suburb C, on the basis of its connection to Ms Anders’ sister. Regrettably, if the parties are unable to resolve this issue, it will be necessary for an application to be made to the court.
In all the circumstances of this case, I do not consider that it would be appropriate for the presumption of equal shared parental responsibility to be applied. At this stage, the parties’ co-parenting relationship is obviously compromised. I hope that these difficult proceedings have not done irretrievable damage to this relationship.
Given the serious allegations of family violence, which have been made, together with the mutual assertions of parental incapacity, I will direct that a Child Impact Report be prepared, at the court’s earliest date, which will involve an observation of the parties with X. I will direct that the case return to court after this report has been completed.
I have considered whether it would be appropriate for X to be independently represented in these proceedings. At this juncture, pending the outcome of the Child Impact Report, I have determined that this would be an unwarranted expense but will be a matter needing to be addressed, on the next occasion, if the various issues in dispute, between the parties, remain intractable.
Given the interruption to X’s relationship with Ms Anders, I consider it appropriate that she (X) should spend an extended period of time, in Ms Anders’ care, following the child’s return to Adelaide. I will direct that the child spend a period of 7 consecutive days, in Ms Anders’ care, upon her return from Melbourne and thereafter the shared care regime commence.
In the urgency of the situation confronting the parties, neither of them has given any consideration as to what should be appropriate arrangements for Christmas. Christmas is an important time for many Australians, particularly the parents of small children.
I would hope that the parties themselves could resolve on what are the appropriate arrangements in respect of X celebrating Christmas with each of the component halves of her family. However, if this is not possible, I will grant the parties leave to relist the matter at short notice.
I will also make the customary injunctions, directed towards restraining the parties from abusing or denigrating the other, in the presence of hearing of X or permitting any other person so to do. This is to emphasise to the parties that the dispute between them is their dispute, not X’s.
In addition, given the allegations each parent has made regarding the other physically chastising X, I will make an injunction restraining each of them from so doing, in the usual form.
I will also direct that a copy of the ex tempore reasons for judgment, delivered on 28 October 2022 be released to the parties with this judgment. These reasons provide the context for the more details reasons and are complementary to them.
I appreciate these are lengthy reasons. The legal issues thrown up by any relocation are complex. As I am at pains to point out, they are not issues amenable to being resolved at an interim stage. I emphasise that I am not determining the final arrangements for X’s long term care. Any decision made at this stage is capable of reverse if more evidence comes to hand at a later stage.[21]
[21] See Marvel & Marvel (No 2) [2010] FamCAFC 101.
Rather, I am putting into place a provisional arrangement, which restores the pre-existing status quo ante, which was disturbed by Ms Damus’ actions. I am satisfied that it is in X’s best interests that the issues regarding where she should live should be determined fairly, on a level playing field, not one skewed in favour of one of the parties.
I appreciate also that this is likely to be a difficult and daunting prospect for the parties concerned, unless they are able to resolve the complex issues between them, whilst focussing on what is best for X. Relocation cases are hard and gruelling.
The Family Law Act 1975 and relevant judicial interpretation of it, recognise the importance of parental autonomy following separation. At the same time, such autonomy may be considered somewhat illusory as the ties of parenting persist after separation and may indeed last a lifetime. As Gummow and Callinan JJ pointed out in U v U in terms, which I appreciate are inappropriately sexist, but remain apposite:
“[M]aternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.”[22]
[22] U v U (2002) 211 CLR 238, 263 [92] (Gummow and Callinan JJ).
When X’s birth was first registered, on the joint notification of Ms Anders and Ms Damus, they agreed to designate themselves as her parents. As a consequences, it is likely that they will remain linked together, to some degree or other, for the remainder of X’s childhood, if not the remainder of their lives.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 7 November 2022
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