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…

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 (No 2)

Details

AGLC: Anders & Damus (No 2) [2022] FedCFamC2F 1500
Case: [2022] FedCFamC2F 1500
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, Division 2, presided over by Judge Brown, dealt with an interim application by Ms Anders concerning the relocation of her child, X, by the other parent, Ms Damus. The central issue was whether X should be returned to Adelaide, where she had lived since birth and where she had familial connections, or remain in Melbourne, where Ms Damus had relocated with her. The court was required to determine the best interests of X, the paramount consideration, and assess the degree of risk associated with Ms Damus's allegations of family violence against Ms Anders. The court also needed to evaluate the appropriateness of applying the presumption of equal shared parental responsibility, given the circumstances of the case.

The court found that while Ms Damus's allegations of family violence against Ms Anders were serious, they lacked objective evidence and were refuted by Ms Anders, who also made allegations against Ms Damus. The court concluded that the situation did not constitute a significant emergency warranting unilateral relocation by Ms Damus. The risk to X of being deprived of a meaningful relationship with Ms Anders outweighed the potential risks of family violence. The court ordered that X return to Adelaide within 10 days, spend seven consecutive days with Ms Anders upon return, and that the parties live within ten kilometres of each other to facilitate shared care. The court also directed the preparation of a Child Impact Report and restrained the parties from abusing or denigrating each other in the presence of X.

The orders made by the court aimed to restore the pre-existing status quo ante and ensure that the best interests of X were served in a fair and balanced manner, pending a final resolution of the parenting dispute. The court emphasized that any decision made at this interim stage was provisional and subject to change with the availability of more evidence at a later stage.

Orders