Anders & Damus (No 5)
[2024] FedCFamC2F 198
•9 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Anders & Damus (No 5) [2024] FedCFamC2F 198
File number: ADC 4751 of 2022 Judgment of: JUDGE BROWN Date of judgment: 9 February 2024 Catchwords: FAMILY LAW – Ex tempore – parenting arrangements for a child aged 4 years old –allegations of coercive and controlling family violence – enquiry into the best interests of the child – where the parties have very limited capacity to coparent – where the respondent has failed to prosecute the proceedings with due diligence – where the applicant and the Independent Children’s Lawyer submits it is not in the best interests of the child to continue litigation – where the proceedings are to be concluded – matters to be considered Legislation: Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 4, 60B, 60CC, 60H, 68LA,102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 10.6
Assisted Reproductive Treatment Act 1988 (SA)
Family Relationships Act 1975 (SA)
Division: Division 2 Family Law Number of paragraphs: 165 Date of last submission/s: 9 February 2024 Date of hearing: 6, 7, 8 November 2023, 7, 8 & 9 February 2024 Place: Adelaide Counsel for the Applicant: Mrs Read Solicitor for the Applicant: Phoenix Family Law Solicitor for the Respondent: Appeared in person, no appearance on 9 February 2024 Counsel for the Independent Children's Lawyer: Ms James Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 4751 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ANDERS
Applicant
AND: MS DAMUS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
9 FEBRUARY 2024
THE COURT ORDERS THAT:
1.All previous orders are hereby discharged.
2.That the applicant do have sole parental responsibility for the long term health, care and welfare for the child X born in 2019 on the proviso the applicant do initially consult with the respondent as to decisions that are required to be made and do take into consideration the views expressed by the respondent when making any final decision and provide her decision as to same issue in writing to the respondent within 48 hours of making same.
3.That the child live with the Applicant.
4.That the child spend time with the Respondent as follows:
(a)Each alternate weekend from the conclusion of school or kindergarten (or 3pm if a non-school day) Friday until 3pm Sunday (in line with the current alternate weekend regime) commencing 16 February 2024;
(b)In the intervening week from the conclusion of school or kindergarten (or 3pm if a non-school day) Tuesday commencing 13 February 2024 until the conclusion of school or kindergarten (or 3pm if a non-school day) Wednesday unless otherwise agreed by the parties in writing;
(c)As and from when the child commences Primary School in Term 3 2024:
(i)For the second week of each short school holiday period from 3pm on the middle Sunday until 3pm on the last Sunday unless agreed otherwise in writing.
(ii)For one half of the Christmas school holidays being in weeks 1, 3, and 5 holidays commencing even numbered years and weeks 2, 4, and 6 in holidays commencing odd numbered years and with handover at 3pm each Sunday.
(iii)That during school holidays the operation of paragraph
3*4 (a) and (b) shall be suspended.
(d)At such other times as may be agreed in writing between the parties.
5.That the child spend time with each parent at Christmas as follows:
(a)In 2025 and each odd numbered year thereafter with the Respondent from 12 noon Christmas Eve to 12 noon Christmas Day and with the Applicant from 12 noon Christmas Day to 12noon Boxing Day;
(b)In 2024 and each even numbered year thereafter with the Applicant from 12 noon Christmas Eve to 12 noon Christmas Day and with the Respondent from 12 noon Christmas Day to 12noon Boxing Day.
6.That for special occasions including the child’s birthday, the birthday of each respective parent, and Mother’s Day, the child spend time with the non-resident parent for a period of two hours if a school day or four hours if a non-school day at times as agreed and in default of any agreement from the conclusion of school until 5:30pm on school days and from 10am to 2pm if a non-school day.
7.That all handovers of the child X do occur at the child’s kindergarten or school if the time for handover coincides with the conclusion of kindergarten or school and the commencement of the parties’ time into whose care X is going, but otherwise in the seated dining space in front of the supermarket at the O Shopping Centre unless otherwise agreed between the parties in writing.
8.That all handovers be effected by either parent or any trusted adult known to the child.
9.That the parties do continue to utilise the co-parenting communication application AppClose to the intent that this shall be the primary method of communication between the parties at all times save and except in the case of an emergency involving the child.
10.That each parent do ensure that they have notifications for the App turned on for the 24 hour period prior to any handover to ensure any urgent information or updates relevant to the impending handover, including but not limited to any health issues, transporting of belongings, or kindergarten/school reminders impacting the child, are known by both parents as may be required and is acknowledged as ‘read’.
11.That in the event of a medical emergency involving the child, the party with the care of the child do telephone to advise the other parent as soon as is practicable.
12.That each party do keep the other updated as to their current telephone numbers and residential address at all times.
13.That the child do continue her kindergarten education at Suburb P Kindergarten.
14.That forthwith the child do be enrolled at the Q School for the duration of her primary schooling years.
15.That each party be at liberty to enrol the child in such extracurricular activities that occur during their time with the child.
16.In the event either parent wishes to enrol the child in an extracurricular activity that will be scheduled during times when the child’s care alternates between the parties, the parties are to consult with the parent regarding this activity BUT NOTING that unless mutually agreed in writing to facilitate the same, neither parent will be obliged to facilitate the child’s attendance at that activity.
17.That each party is entitled to attend school and extra-curricular activities involving the children or either of them, including:
(a)sporting fixtures;
(b)extra-curricular activities that allow for parental attendance;
(c)school functions and events that allow for parent attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews and canteen.
18.That each parent do authorise all schools at which the child may attend from time to time, to:
(a)provide the other, at the expense of the other, copies of all school reports, school notices and newsletters, school photographs and examples of school work in relation to the child; and
(b)communicate with the other, either by telephone, in writing or by personal attendance, in respect to the child's progress at school, and inform each other of any emergency, remedial or correctional treatment required by child as soon as is practicable.
19.That each parent:
(a)is at liberty to attend with the child at any hospital in the event the child requires medical treatment.
(b)advise the other immediately in the event that thechild suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practice attended;
(c)authorise any medical practitioner, hospital or medical practice upon or at which thechild may attend from time to time, to communicate with the other party in respect to the child’s medical condition and/or requirements.
20.That the child be at liberty to travel between each parent’s home with such belongings and comfort items as the child requests to transport with her and which belong to her.
21.That the parties be restrained and an injunction be granted restraining each of them from:
(a)Attending at the residential address of the other parent save and accept in the event of the child being involved in a medical emergency at that address or unless the parties agree to the same in writing;
(b)Travelling with the child outside of the State of South Australia without the express written consent of the other party and such consent is not to be unreasonably withheld;
(c)Telephoning or sending SMS messages to the other of them save and except in the case of a medical emergency; and
(d)Providing the child with dietary or health supplements of any kind unless expressly consented to by the other parent and/or the same are recommended as necessary by a medical health practitioner BUT NOTING the parties do currently agree and will continue to provide the child with a multivitamin to support her vegan diet.
22.That the parties are restrained and an injunction is granted restraining each of them from:
(a)Physically disciplining or abusing the child; and
(b)Denigrating the other of them to or in the presence or hearing of the child and on social media or allowing any other person to do so;
23.That in the event either party do wish to travel with the child either interstate or overseas, the same to occur on the following basis:
(a)The travelling parent do provide notice and details of the travel plans:
(i)in the case of interstate travel at least four weeks before any intended travel dates; and
(ii)in the case of overseas travel at least four months before any intended travel dates; and
(iii)inclusive of evidence of return flight details, telephone and contact details for each place of accommodation.
(b)In the event the travel plans interfere with the time the child would usually be in the care of the non-travelling parent, and unless agreed otherwise in writing, that parent is to be provided make-up time by way of one night being added to each usually fortnightly weekend that parent has with the child until all missed nights are made up; and
(c)The Applicant is to hold the passport of the child at all times the child is in Australia; and
(d)The parents will be equally responsible for payment of the child’s passports from time to time and both parents are to sign all such necessary documentation and the application within seven (7) days of the same being provided to her.
24.The Respondent is to pay the sum of ONE THOUSAND NINE HUNDRED AND SIXTY-FOUR DOLLARS ($1,964.00) into the trust account of the Applicant’s solicitor for costs associated with the dismissed application filed 7 February 2024.
25.The order for the appointment of the Independent Children’s Lawyer is hereby discharged.
*Pursuant to paragraph 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 this order is amended on 12 February 2024.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREJUDGE BROWN:
The reasons for judgment in this matter were delivered orally following the interim hearing between the parties concerned. The reasons have been corrected to remove errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
This afternoon, I am dealing with a parenting case in which Ms Anders is the applicant, and Ms Damus is the respondent. They are the parents of one child, X, who was born in 2019, so X will be five years of age in a few months’ time.
For reasons upon which I will expand as these reasons unfold, this is a difficult and challenging case, which as I deliver these reasons for judgment, causes me a great deal of foreboding.
I am delivering these reasons for judgment in the absence of Ms Damus. That is a very significant thing for me to do. I have no reason to think anything other than Ms Damus loves X very much indeed and that as a consequence of her love, she is interested in everything to do with X.
This case is about X, but the case needs to be concluded, and Ms Anders also needs to be able to move on with her life. X needs to be parented in arrangements that are clear and finalised. There is no point in me adjourning the case so that Ms Damus can take part in it. It is abundantly clear to me that Ms Damus has no confidence in me whatsoever. She is entitled to her view about me and, indeed, about the Court’s process in general.
Although Ms Damus does not approve of me does not mean that I should wash my hands of the case and say I should not finish what I began. I have to consider the position not only of Ms Damus but also Ms Anders, who continues to seek my adjudication.
As I such, in my view I must proceed to finish what I have begun. However, I acknowledge that it is not beyond the balance of possibility that others may judge that the discretion which has been conferred on me by the law has miscarried in my hands.
However, potentially others above me, must judge whether that is so or not. I cannot, in effect, allow Ms Damus to say I have mucked up the case and therefore she gets to run it again with somebody else because she is dissatisfied with how it has turned out thus far from her perspective.
However, having to finalise the proceedings, as I think I must, must be to a very large extent represent very unfinished business, which invites more proceedings about X. That cannot be good for X, nor either of her parents, I suspect. Regrettably, I do not think there is anything I can do about that.
This will be, I think, be the fifth judgment I have provided in the case. I have attempted as best I can to outline, in each of those judgments the various events which brought the parties before the Court.
Ms Damus is not currently represented. The case has been outstanding for a significant period of time. Ms Anders commenced the proceedings in October 2022. It was her case that Ms Damus had unilaterally moved X from Adelaide, where she had hitherto lived in a shared care arrangement, to Melbourne.
It was Ms Anders’ understanding that Ms Damus wished to pursue a relationship with her current partner, Ms H. I was called upon to deal in the jargon of family law with what is invariably called a unilateral relocation case.
After two judgments, I determined that the child’s best interests were best served if she returned to live in Adelaide so she could engage with each of her parents. That was a controversial decision from Ms Damus’ perspective.
It was a decision that was made on an interim basis. What that means is that the decision was provisional. It was not the final determination in respect of X. It was a decision that was made until further evidence was available. Because I had started off the case – again, in the jargon of family lawyers and the courts – it had been docketed to me, it fell to me to finish it.
As I had started it, the system envisaged, at that stage, that I should finish it, it being thought preferable that the parties should not come back into court again and again and provide their story to a different person again and again. It was hoped that a continuity of decision-maker would be of assistance.
I can say that is no longer the orthodoxy of the Family Court system, but it is not my role to pass judgment in respect of that. In that context, I made orders that there be a more detailed assessment of X’s relationship with each of her parents, and the case was fixed for a final hearing.
The trial was listed for the first period of November 2023, and three days were allocated for the hearing of the case. Because of the complexity of the issues that were raised in the matter, at an early stage in the proceedings, it was ordered that X be independently represented of her parents, and her representative is Mr Seymour, who is an experienced lawyer of the Legal Services Commission of South Australia.
For the trial in November, Mr Seymour arranged that he would be represented by an experienced family law barrister, Ms James, and Ms James has appeared in the case throughout. Mr Seymour is to be regarded as a party of equal importance to each of parents in the case.
Pursuant to the provisions of section 68LA of the Family Law Act, Mr Seymour is under a statutory duty to examine all the evidence in the case and advocate, via Ms James, what he considers will be the best outcome for X.
Significantly, prior to the trial it was ordered that a Family Report be prepared. That report was prepared by Ms R. She is a social worker, and her report was released to the parties’ lawyers August 2023, and I will come back to the report in a moment.
Mr Seymour and Ms James support Ms Anders’ submission that the case should be finalised in Ms Damus’ absence in the terms proposed by Ms Anders and as recommend by Ms R, the report writer, following the sworn evidence provided by her to the court today.
The circumstances, both emotionally and legally, surrounding X’s conception are complicated. The parties met one another in late 2013. X was conceived through a process of artificial conception, and that process was controlled by South Australian legislation. In this case, namely the Family Relationships Act 1975 and the Assisted Reproductive Treatment Act 1988.
As I understand it, an anonymous sperm donator provided sperm for X’s conception, and Ms Damus physically gave birth to X. In the phraseology adopted in this case, she is X’s birth mother.
However, given the circumstances of the conception, and because Ms Anders was part of the authorised medical process leading to X’s conception, pursuant to the legal provisions, both parties are regarded as X’s co-parents. One of them is not superior to the other. They are equal and, indeed, that is how they are registered on X’s birth certificate – as co-parents. Pursuant to the provisions of section 60H of the Family Law Act, the parties have such equal status.
The parties were in a very committed relationship with one another for some years prior to X’s conception. They lived together. They purchased a home together. After X’s birth, they married one another as they were able to do after the legislation was changed. There is no doubt that they were partners and spouses in every legal and emotional sense of the word.
In mid-2018, as is regrettably fairly common in our community, Ms Anders was diagnosed with a terminal illness, which was, of course, is a serious thing. Both parties were aware of that, and it seems implicit that they decided to go ahead - and, notwithstanding that, go ahead with the medical process leading to X’s birth, who, as I say, came into the world in 2019, and I have no reason to think anything other than she was a much-loved child by both her parents.
The evidence available to me - and I have heard today from Ms R, who was able to engage with her from the stance of an independent expert, is that she is a delightful and engaging child, who is passing every developmental milestone expected of her and she is due to start primary school very soon. She is doing okay – not okay – very well. The evidence indicates that X was breastfed by Ms Damus over an extended period of time and that after the child’s birth Ms Damus was in the jargon the home parent whilst Ms Anders was the breadwinner.
The relationship between the parties broke down in July 2022. That was difficult because the parties owned property together, they had purchased some land where they were going to build a home. X was attending childcare. Both parties were working.
Each of them met others with whom they became emotionally involved, shortly after the parties separated – and I have not queried anyone about the specific details of it all - Ms Damus began her relationship with Ms H who I think lived in Victoria. Obviously, that posed some geographical challenges.
The parties were and are the parents of X. After they separated, they agreed, on Ms Anders’ case, to share her care on a relatively equal basis. That does not appear to have progressed without its challenges, from time to time. One of the chief challenges of which was Ms Damus’ desire to pursue her relationship with Ms H.
Ms Anders met Ms K in mid-2022, and they began a relationship together. There was a lot going on. No doubt, each party had to adjust to a difficult situation. Ms Anders got some rental accommodation. She initiated some family dispute resolution processes with Ms Damus. It all came to an abrupt end in October 2022, when Ms Damus took X to Melbourne with her. It has consistently been her case - that is, Ms Damus’ case – that during the parties’ relationship she was subject to serious coercive and controlling family violence emanating from Ms Anders to her.
It has, significantly, been her case that she had no realistic alternative to keep herself and X safe, other than moving to Melbourne to be far away from Ms Anders and that was the best thing for X.
At the interim stage I took a different view. In raw terms - and I am not going to go through the reasons again - I determined that the situation confronting Ms Damus was not of sufficient moment to justify, in effect, the possible severance or at the very least significant reduction of the level of relationship between X and Ms Anders, and I make no bones about it – X is a child with two mothers, in both a legal and emotional sense.
I asked Ms R earlier today – in in a fairly clumsy way, I concede – whether there was any distinction in X’s mind between a birth mother and an emotional mother, and she said she did not consider so. X has an emotional and psychological bond to both of the parties, arising out the manner in which she been cared for to date by each of them. The quality of those bonds may conceivably be different, but one is not to be assumed to be superior to the other because of the circumstances of the child’s birth.
I concede that it may be argued – pursuant to the provisions of section 60CC(3)(m) – that her conception may be a fact that should be given some significance, but I do not believe that that view has been advocated, and I do not propose to adopt it on the basis of the evidence available to me in this case.
Anyway, I determine that the child should return to Adelaide so that the previously instituted share care regime, interrupted by Ms Damus’ move to Melbourne, could be resumed pending a final determination of the issue. Ms Anders denies that she was violent towards Ms Damus. She denies that she represents a threat to X’s safety. That was a live issue in the proceedings of the trial.
The trial in November was not an easy process. The three days allocated for the hearing proved to be woefully inadequate. The first day was taken up with negotiations between the parties in the light of Ms R’s report. One of the responsibilities of an Independent Children's Lawyer is to be an honest broker between the parties and help them reach a child-focussed outcome consensually. Such a consensus could not be found.
Court cases – as both now Ms Anders and Ms Damus know - are vigorous and, in some ways, brutal processes. Nobody is at pains to be nice to the other party. They’re confronting. People are confronted with their alleged shortcomings. They are challenged. They are also formulaic in their nature in the sense that they take place in a courtroom, necessarily a place of authority. The lawyers concerned wear 18th century costumes. I wear a robe, and I sit elevated above the parties concerned with the symbol of the Commonwealth Government on the wall behind me.
Anyway, the Independent Children's Lawyers attempted to broker some outcome in the case and protect the parties from the worst aspects of that adversarial litigation. At the same time the law itself, the Family Law Act, in Division 12A, Part VII of the Act recognises that adversarial cases are not helpful for children, and they direct me to manage cases so that the worst aspects of adversarial litigation are avoided. I confess that I do not think that I have done a very good job in that regard. I have not protected the parties from the process at all.
One of the characteristics of a court case is that such a court case is enormously expensive to those who are involved in it and to the community generally. Lawyers are expensive. Maintaining courtrooms and all the bureaucracies of courts are expensive. The documents concerned are expensive. Cases like this are also expensive in emotional terms. They consume people. They eat them up. They make them stressed. They make them angry. They make them anxious.
Regrettably, in spite of many well-intentioned amendments to the law and thoughtful programs to assist people, including the provision of legal aid, at the end of the day, they still remain far from perfect mechanisms to analyse evidence and determine what is in the best interests of a child. However, at the same time, there has to be a full process to adjudicate or decide disputes between parties.
It has to be formal because the stakes are high. It was, as I say, Ms Damus’ case that she had been coerced and controlled by Ms Anders during the parties’ relationship. Ms Anders disagreed. Issues about family violence are a central element in determining what is the best outcome for any child concerned. The court was called upon to determine this issue.
I am not sure whether Ms Damus applied formally for legal aid. I think I was told at one stage that she did have legal aid. She certainly has had solicitors at various stages, both in Melbourne and Adelaide, but the thing with legal aid is it is subject to the satisfaction of a merits test, you’ve got to have a case that is worthwhile to run and a means test – if you can pay for it yourself, the government says, you pay for it yourself.
As I understand it, Ms Anders has from time to time paid some of her legal fees. She is a professional. She is no doubt good at her job and is well paid, but the costs of these proceedings must be enormous for her. It is my impression that throughout these proceedings she has done everything that has been expected of her, in terms of bringing the case to a conclusion, through adjudication if that is necessary.
It is my impression that if she could have settled the case, she would have done, but that has not been possible for her, as of course the parties concerned must agree on any outcome to avoid an adjudication. It has been her case, at least on the face of the documents provided to me, that she was open to the prospect of shared care of X with Ms Damus.
The legislature has recognised that family violence is a societal evil that is prevalent in every level of society and every type of relationship and represents a grave threat to the emotional integrity of children.
It is also recognised that separated spouses can use legal proceedings as an instrument to bully their former spouses - I think it is called legal warfare - and it is recognised that the cross-examination of a person, who has been a victim of family violence by the person who has inflicted that violence on the person concerned may amount to abuse.
In those circumstances the Commonwealth Government after recommendations from the Law Reform Commission and others instigated a significant change in the law by inserting section 102NA into the Family Law Act, which is headed Mandatory Protections for Parties in Certain Cases.
In general terms, in cases where there is an allegation of family violence between spouses and one of a number of criteria is satisfied, the spouses concerned in the case are prohibited from each cross-examining the other. It works both ways.
The criteria to be satisfied are the conviction of an offence involving violence or a threat of violence, a family violence order, other than an interim order applying to both parties, an injunction for the personal protection of a party under the Family Law Act and, significantly in a case like this, where the Court makes such an order of its own discretion.
One of the controversies in this case is that when Ms Damus went to Victoria with X, she applied for an interim family violence order, when she arrived. I alluded to the order in the judgment germane to the unilateral relocation.
Such interim orders are specifically prohibited from the application of section 102NA for the obvious reasons that they are granted on a provisional basis invariably without any full examination of all the circumstances pertaining. In essence, the Court hears only one side of the story. As already indicated, Ms Anders disputes what was said in the interim proceedings and, as far as I know, Ms Damus has not sought to obtain a final order, either in Victoria or this state.
In my view, the Court has to be extremely cautious about section 102NA for this reason. In our system of adjudication, it is a very significant thing to say to somebody you cannot cross‑examine the person that has accused you of some serious species of wrongdoing. It is fundamentally unfair. It goes back to the very origins of the law – if somebody accuses you of something, you can say, “I could not have done this because of X, Y and Z”. So, in order to ameliorate such an obvious injustice, the Commonwealth Government instituted a scheme through which persons subject to a cross-examination ban would have a lawyer funded to cross-examine the other person on their behalf.
I was concerned and remain concerned – and I think I can say my colleagues are concerned – that system is potentially open to abuse of itself. I do not make the law. I must apply it. A section 102NA family order was made in this case, but not by me. I was not asked to make the order, and I might have had some – I mean, I make no bones about it - I think I would have been troubled by it in this particular case.
On the one hand, when people are represented, it is much easier to deal with the case because lawyers are professional people. They need to maintain emotional objectivity. They are bound by rules of procedure. If they overstep those bounds, they can be disciplined. They are under professional obligations to tell the truth to the Court and not mislead the Court.
People who are acting for themselves are not under such obligations, other than to tell the truth, because if they do not tell the truth, they can be charged with perjury. I suppose they can also be dealt with for contempt in the face of the Court.
Anyway, such a banning order was made in this matter, and when the case began both parties had legal representation. Ms Anders was represented by the barrister who has represented her throughout these proceedings to date, Mrs Read, and the same solicitor, Ms Poetsch, both of whom have been assiduous in their attendance before the Court and have appeared throughout and Ms Anders has been in the happy position of having continuous representation. She has not had to tell her story to different lawyers along the way.
Ms Damus has been in a significantly different position, because she has had a number of lawyers and, from time-to-time, she represented herself at different stages in the proceedings. She has also had the help of her partner, Ms H, and there has been controversies about whether Ms H should be, in the jargon, a lay representative for Ms Damus.
There has been nothing easy about the process at all, and Ms Damus has, from time to time, made her disagreement with me clear. I hasten to say she has always been polite to me. She has not shouted at me or done anything that I can criticise her for, other than perhaps it is apparent from reading previous reasons for judgment I took umbrage when she looked at her mobile phone during the proceedings, but she has always been polite. However, it is my impression that she has been passively resistant to the process from time to time.
The first day of the hearing was wasted because of negotiations between the parties. It was useful to pursue those negotiations. In my view, nothing good has come out of this trial for anybody, particularly X herself. It should have been avoided if it could have been, but it has not been.
The second day was taken up with evidence, as I recall, from Ms Anders herself. The central issue in the case was about violence, and Ms Anders’ case was a professional and chronological refutation of incidents that were said to characterise violence and also evidence from Ms K, as I recall, whether she was an appropriate person to be involved in the family. I have had some exposure to Ms Anders, in my estimation, she was a frank witness, she is a candid witness, she was a frank witness. She seemed to me to be a pleasant person who told the truth.
Significantly, as is the case with many matters of this kind, a large component of her case was to provide text messages which she said indicated an irrefutable context in words set down contemporaneously on a mobile phone or an email as to what was happening when awful things were also said to be happening, and in many ways the mobile has become like the police officer’s notebook of yesteryear - the police officer takes contemporaneous notes of what is happening and that, from my perspective, was compelling evidence, as also was Ms Anders’ demeanour in the witness box. I found her to be trustworthy, and she was not challenged in cross-examination by Ms Damus’ then counsel, Ms Smith, or indeed from Ms James’ cross‑examination.
So, we got to day three of the trial. Ms Damus was not on time. She was, I was told, preparing what was to be her tender book of evidence, which was largely her text messages that answered Ms Anders’ text messages. I have not seen that bundle, but I was told that it was many hundreds of pages in length. It had taken all night to prepare.
Anyway, two of the three days allocated to prepare the case were wasted. They were wasted in the context of Ms Damus knowing what Ms Anders’ case was and whoever was at fault, Ms Damus leaving it to the last minute to do something about it, which she did unilaterally when the matter was listed for hearing without prior approval or an explanation.
In those circumstances, I had really no alternative but to adjourn the case until the new year. I gave it the most urgent dates that I could, which were Wednesday, Thursday and Friday of this week, being 7, 8 and 9 February.
After that occurred, for reasons about which I am not altogether clear, Ms Damus and her publicly funded legal team parted ways. I am not sure about all of the circumstances of that. I have asked Ms Damus about it, and I am not altogether satisfied that she was frank about it.
Anyway, after the case was adjourned in November, something unforeseen occurred. It was very serious, and I have alluded to it in my judgment that I delivered on 29 November 2023. Ms Anders was taken ill. She had a headache. She had to go to the hospital. It turns out that she had a medical condition, regrettably I think tests revealed – indicated that it was related to the earlier illness that she suffered, and she had to have treatment, including surgery.
As I said earlier, it has been Ms Anders’ position that she would want to share the care of X with Ms Damus, and up until that stage, the care had been shared. It had not been easy. The parties do not have an easy relationship with one another, but it had occurred. I had to deal with that application which was brought - with the proceedings which were brought by Ms Damus herself in her own capacity.
Essentially, it was her case that because of the medical infirmity that had befallen Ms Anders, X should come immediately into her care. I was not disposed to make an order to that effect for reasons that I provided at the time. I was gravely concerned that it was likely to be emotionally destabilising for X that she went from seeing Ms Anders regularly and seeing Ms Damus regularly to just seeing one of them, particularly in the context of one of her mother’s being taken seriously ill.
On the medical evidence that was available to me, I did not think that that alone disqualified Ms Anders from caring for X, no doubt it was very scary for the little girl what had happened. It was all very difficult. I had hoped that in the face of that significant emergency the parties would be able to work something out, but they were not able to and so if fell to me to decide what should happen, and I hope I did that as carefully as I could.
No doubt Ms Damus thought I got it wrong. Perhaps I did. I did, I hope, the best I could. I provided reasons. They were not subject to appeal, nor were the other previous reasons that I have provided. Perhaps I made mistakes in terms of the chronology or some circumstance. This is a very busy court. I frequently have matters before trials. I have to bear in mind the circumstances of many families in my mind. I do the best I can. I am provided with lengthy documents, as indeed I have been by the parties in this case, and indeed from Ms Damus herself, very often at the last minute, which I try and comprehend as best I can.
Anyway, the case – the interim issues were determined. I put in place what I thought were safeguards for X, that if Ms Anders was caring for her, there would be somebody present to make sure that there was no issue, seizure or collapse or something like that – as much to protect Ms Anders as anything – not that I think is Ms Anders is irresponsible in terms of her health.
To the contrary, the evidence that I have is that she is very responsible about her health and adhering to treatment and that she has a good relationship with all of her doctors. In what were obviously very emotionally charged circumstances, I decided to continue the existing regime for X’s care, but out of deference and sensitivity to Ms Damus’ position, I directed that when she got some information from her treating specialist that Ms Anders provide it to Ms Damus.
Ms Damus herself, as is the flavour of the times, had done her own research on the internet about terminal illnesses and so on and so forth. Ms Damus is entitled to educate herself in all sorts of ways, however she wishes to do so, but I have to be cautious about being provided with things that come off the internet. I am not medically qualified myself. I say these things to indicate the emotional topography of this case which is extraordinarily difficult.
From my point of view there are two fundamental issues in the case, one of which I have alluded to, which is the circumstances surrounding X’s birth, the other issue is one more recently arising, and that is the one concerning Ms Anders’ health and its implications for X’s emotional security, if God forbid, it should be the case that Ms Anders should take a turn for the worse.
I have already said to Ms Damus that X is not something that is analogous to a piece of property to be bequeathed like in a will - in a last will and testament. Her best interests change from time to time and will continue to change as she grows older, and circumstances change. Those are issues that, I hope, never arise, but if they do, will be dealt with when they have arisen in the context of what is in the child’s best interests at the time. I have to deal with X in the here and now, not the future, though, to a certain extent, I have to try and gaze into the future and work out what is likely to be best for her.
The three days for the trial in February have not been a happy experience for me, and they have been far from smooth. Ms Damus’ solicitor withdrew from the matter, I think, in early December – I beg your pardon - on 28 November, so Ms Damus had December, January to get legal representation and indeed prepare for the trial resuming in February.
I concede it was the Christmas period, but it should not have been beyond the realms of possibility that she could have instructed somebody else. She is an intelligent person. Whether she could have transferred her section 102NA funding to another solicitor, whether she could have applied for legal aid, whether she is not entitled to legal aid because of her income combined with that of Ms H, I do not know, but I am not persuaded that she did everything to advance her situation.
Prior to Christmas, in court, I think she indicated her dissatisfaction with my behaviour and the decisions that I have made. The relevant decisions, I think, have been reduced to writing so others can judge me if they wish to.
In any event, matters have not proceeded smoothly. The case began on Wednesday. Ms Damus sent an email at 10.10 am on 7 February 2024 to say that she was delayed approximately an hour. She apologised. Of course – I think it is known as sod’s law - when you have to be somewhere urgently, the bus does not come or your car breaks down, whatever. The universe is sometimes unkind. For the sake of the record that is a jocular remark. I think I am entitled to make a few jocular remarks from time to time.
Anyway, nothing happened in Ms Damus’ absence. She came to court, I think, two hours late. She lives in Suburb S. It’s a suburb of Adelaide. I asked her how far away it was; she could not tell me. I asked her what was wrong. She said the car – the car had mechanical issues. I asked about a taxi. Perhaps she could have walked I asked about the prospect of that. Anyway, regardless of that she was late. Nothing happened in her absence.
Then Ms James wanted to speak to Ms Damus, and I encouraged that because I thought it was a good thing if the parties could perhaps, as I said, concentrate on the big issues of life, the child and all the rest of it. Anyway, that was not successful.
It appears to have been the case that over the months since the case had been last in court, Ms Damus had been concentrating on how the case had gone, and, as I indicated, she had indicated her dissatisfaction with me on a number of occasions. Anyway, she had been preparing a fairly lengthy application for me to recuse myself which she is entitled to do. That was filed at just after lunch on 7 February. I do not know why she had left it to the last minute to file it. I do not know who prepared it.
It was a lengthy document that would have taken some time to prepare. A lot of thought had gone into it. A lot of complaints were made which had arisen from my first involvement in the matter. Anyway, when the case came back after lunch it was fairly clear I had to deal with a recusal application. I asked Ms Damus if she was well and how she was going. Perhaps that was presumptuous of me.
One of the features of this case is that it is Ms Anders’ case that Ms Damus is far from well in a psychiatric sense. Those were live issues before Ms R, and I have been provided with some medical evidence from Ms Damus. It is Ms Anders’ view that Ms Damus should have an extensive psychiatric evaluation, given what she - that is, Ms Anders - understands of Ms Damus’ very difficult background, and it is a matter of some delicacy, but Ms Damus has reported a history of sexual abuse when she was a very little child and general abuse.
I have been provided with an affidavit – not an affidavit - a fairly brief medical report from Dr T, who is a psychiatrist who said that Ms Damus has a diagnosis of attention deficit disorder, post-traumatic stress disorder and mental health conditions. She has subsequently been diagnosed with medical conditions. She has been prescribed medication, which is of an anti‑depressant nature, referred for a behavioural therapist and attended a psychiatrist in the past.
On any view, Ms Damus has had a difficult and challenging life, and these proceedings are enormously stressful. The complexity of just navigating the system is enormous. Ms Anders is enormously fortunate that she has had the same legal team who have helped her to get through it, and Ms Damus has not. I mean her no disrespect, but I suspect she has a high degree of suspicion of everybody, myself included, and, regrettably, when something turns out and she does not approve of it, she loses confidence. I can understand why that would be so.
So, of course, I had to deal with the application for recusal. I had to deal with it as expeditiously as I could, because I did not think it was in anybody’s interest to delay the trial, certainly not in X’s interests.
I delivered some Ex-Tempore Reasons for Judgment, as I am doing now. They took about an hour to deliver. I apologised for the burden that I imposed on the people who were compelled to listen to them. The irony is that in some ways it is easier to provide written reasons for judgment that may take me far longer to do and it is easier to do it orally with all the imperfections of such a process. I think it is also more human that I tell people what I think and how I feel and explain myself as best I can.
Anyway, the reasons for judgment were delivered. I declined to recuse myself. Ms Damus was not pleased. Of course, she is entitled not to be pleased. It is not my job to mollify her, placate her. Indeed, if I did try to do so she may find that patronising. Indeed, if I did try and mollify and placate her, Ms Anders might turn around and say, “You are biased in favour of her”.
I said that the case would resume at a 1.00 pm. This being the only time that Ms Anders’ specialist was available to give evidence about his involvement with her treatment. He was giving the evidence in his lunch hour.
I indicated that Ms H could be a McKenzie friend but that I was not disposed to allow Ms H to be a lay representative. The next thing that occurred was that Ms James, the Independent Children's Lawyer, got a message that said Ms Damus had taken ill and it was being considered whether she would go to hospital in a private car with Ms H or by ambulance. Which of those was chosen, I do not know.
I decided to take the evidence from the doctor concerned. It was fairly brief and in the line with a report, which had been provided to the ICL and Ms Damus by Ms Anders’ solicitor. The doctor considered that Ms Anders’ condition did not preclude her from caring for a child of X’s age. The case was then adjourned until 10 o’clock today.
As I say, Ms Damus has not always been punctual in attending at court. She told me that one of the reasons why it had taken some time to prepare the recusal application was that her house had been flooded – whether that is so or not, I do not know - and that there was mould, and she was allergic to the mould, I think.
Anyway, today, Ms Damus, at a quarter to 11 or thereabouts, sent an email to Mr Seymour, to Ms Poetsch, to Mrs Read and to my associate, indicating that she would not be in court today, and she attached a medical certificate from U Medical Clinic from a Dr V which certifies that on 8 February - which is yesterday - Ms Damus was suffering from illness and she would be unfit for work from 8 February to 8 February.
A lot of people do fall ill, and they cannot attend court, and it would be oppressive to allow court cases to proceed in their absence, but in my view this medical certificate is wholly inadequate. It does not indicate what the illness is. It does not indicate whether Ms Damus is able to talk or speak or stand or whatever, and fundamentally it has expired.
More telling, I think, is what she has said in the email that accompanies it, which is a complaint about me, about the nature of this Court. She complains that she has been victimised, bullied, discriminated against because of her disability. In context of her disability, I accept almost certainly that she does have a disability, but it is my apprehension that she has not been fully frank about that with even me or the Independent Children's Lawyer. She could have submitted herself to psychiatric evaluation. In any event, it is not her case that any condition from which she suffers prevents her from parenting X.
So, we come to the point of what is to be done in respect of the case. It seems to me that Ms Damus has absented herself from the process, and she has done that voluntarily. I cannot compel her to take part in these proceedings. At the same time, Ms Anders is entitled to have her application determined, notwithstanding the fact that Ms Damus does not want to take part in it, notwithstanding that Ms Damus is not offering herself up to the scrutiny of her behaviour and her conduct to those who are advising Ms Anders.
Just because Ms Damus says, in effect, “I have no confidence in the process and I’m not going to take part in it”, it does not mean that Ms Anders is not entitled to my adjudication. In essence, it does not require the willing attendance of both parties in a proceeding as an essential prerequisite to a decision being made.
In my view, in the absence of agreement, I am obliged to provide the adjudication sought by Ms Anders on the basis of the evidence that is available to me. Ms Damus may say that there was no point in presenting any evidence because I would not listen to it. She is entitled to her view, but her absence alone cannot provide a brake on the proceedings.
That is, in my view, a grave thing for her to assert, given that she has not attempted to present any evidence. She has, effectively, folded up her tent and gone away. She is entitled to appeal in respect of any errors she asserts arise in the exercise of any discretion conferred on me. But again, a portended appeal cannot be used to terminate a hearing. Indeed, there must be an outcome to be appealed. In my view, I have to provide such an outcome so that Ms Damus can, if she wishes, appeals.
Pursuant to the relevant rules, I have authority to determine the matter in the absence of Ms Damus. That arises as a consequence of Part 10.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Litigants in this Court are under a number of obligations. They have to comply with the orders of the Court. They have to file their documents as directed. They are also obliged to prosecute with due diligence any application which they have made.
In all the circumstances of this case, I do not think Ms Damus has prosecuted her case with due diligence. No doubt, she will say that that is not her fault, that she was not provided with proper legal assistance, and perhaps she will say that I have not helped her as I am obliged to do. As I say, it seems apparent to me that she has voluntarily walked away from her case, at least pursuing it before me. It is a fundamental principle of civil proceedings in this country that litigants do not chose their adjudicators.
For the one day that the matter was before the Court for any substantive hearing involving the taking of evidence, she had a lawyer, Ms Smith. Whether she was dissatisfied with the way in which Ms Smith ran her case, I do not know. That is a matter that she needs to take up with Ms Smith, not with me. She was represented, so I did not have to tell her anything about cross-examination and so on.
In terms of the interim application or interim proceeding that she brought, I had to deal with it. I could not have found a court lawyer for her. In any event, she brought her own interim application on her own behalf.
In all these circumstances, I am satisfied I can finalise these proceedings in Ms Damus’ absence. In fact, I think I am duty bound to do so. I do not think any useful purpose will be served in adjourning these proceedings.
In so doing, I elected to hear some evidence today from Ms R, the family report writer. She was briefly examined by the Independent Children's Lawyer, and I asked her some questions myself. These are not strictly adversarial proceedings between the parties themselves.
They are inquiring into what is best for somebody who is not here, that is, X, what is best for her, what is in her best interests. So just because Ms Damus is not here, Ms Anders does not get a metaphorical free kick and get what she wants. I have to be satisfied that what is proposed is in the child’s best interests. And in so doing, I have to consider the matters in the Family Law Act.
As is well-known, I have to ensure that X’s best interests are served – not the interests of Ms Anders and not the interests of Ms Damus, but X’s best interests, and they are to be decided by reference to a number of principles meant to ensure that children have the benefit of having both their parents in that child’s life.
I have got to protect children from coming to physical or psychological harm. I have got to ensure that children have adequate and proper parenting, and I have got to ensure that parents fulfil their duties. It is children who have the right – not parents – children.
This is the legal matrix in which the case arises. Ms Damus asserting that protective concerns are fundamental. Ms Anders pointing to the benefit of both parents being meaningfully involved in X’s life but submitting that she is the parent with the better level of insight into the responsibilities incumbent on being a competent parent.
So, in that conceptual matrix, which is set out at section 60B of the Act, if anybody is interested, this case has to be determined and I have to basically consider a whole list of things. Two primary considerations – the benefit to the child of having a meaningful with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Protection from harm is given primacy. I also have to consider a longer list of additional considerations. There are about 14 of them. They are in section 60CC(3), and I have already alluded to the catch-all “any other facts or circumstances”. I have a discretion, and basically, I have to look at a whole lot of things and do what I think will be best for this child.
As I say, I have had exposure to Ms Anders in the witness box. I accept she is a witness of truth. I accept she loves X. My assessment of her is she is a good parent. I have not seen Ms Damus in the witness box. To a certain extent, that has been her choice.
I have had evidence from Ms R, who has a significant advantage over me in this case in that she has actually seen X. I do not even know what she looks like. Well, I think I do. I saw her on a fairly grainy video from somebody’s mobile phone, taken during a controversial handover and she was intrigued by a flowerbed, as I recall, and I cannot remember but she looked like - she was excited – she looked like a nice child, and I am sure she is.
So, Ms R had exposure to X and each of the parties, and what she thought of the two parents was that it was Ms Anders who had empathy, that is the capacity to be in somebody else’s shoes and think how they are feeling and respond appropriately to those feelings. In this case both to the feelings of X and her other parent.
Regrettably, it was not her impression that Ms Damus was similarly so endowed with empathy. That was my impression when the unilateral decision was made to move the child to Melbourne, and, as matters transpired, Ms R was not of the view that the move could be justified.
Ms R, as I said to her and as she indicated in her report, was stringently minded not to get into my territory in terms of making assessments of the truth or otherwise of the relevant individuals deposed in their affidavits. That is my job. I do it when I see people in the witness box. Ms R said, “It is not my job to decide who of the parties is telling the truth. that is your job, judge.” In this case the central evidentiary issue was exposure to family violence and the implications of coercive and controlling behaviour for X.
In this context, as I recall, Ms R posited alternative outcomes based on whether the court did or did not find there had been coercive and controlling violence.
On the evidence that is available to me – and I appreciate that I have a fairly limited amount of it – I find that Ms Anders was not coercive and controlling towards Ms Damus. No doubt, from time to time she said and did things that she perhaps regretted later. My impression is that the relationship between the parties was not always easy, and I have evidence about what happened on their wedding night, and I have a certain level of information about the difficulties that have confronted Ms Damus from time to time.
Also telling in my view is what each of the parties said they wanted the outcome of the case to be. Ms Damus said that her preferred outcome was that she wanted sole parental responsibility for X, the child to live with her and there only to be supervised time. She also wanted Ms Anders to have therapy for poor anger management, coercive, controlling and abusive behaviour, psychological assessment and an attachment-based parenting course.
On the other hand, Ms Anders said she was seeking for X to live with her for four days and with Ms Damus for three days per week. She was open to week-about when X was seven. However, when that was unpacked with Ms R, she said that she was concerned about aspects of Ms Damus’ emotional functioning, but she was always open to the possibility of a shared care regime. I think, from my perspective, that is telling and it really informed much of Ms R’s report.
In terms of the nuts and bolts of human relationships, which Ms R saw when X came into the room and saw each of her mothers, X loves both her mothers, she loves them, and that is important, and I have to at the end of the day bear in mind that this child has two parents, and the child is entitled to have a meaningful level of relationship with each of them, and as a consequence of what has happened up until this point, the child has a significant level of relationship with both her parents, who each obviously love her.
One thing the parties agree on, and it is the only thing they seem to agree on, is that communications between them are terrible. Everything is difficult. I cannot do anything about that. I cannot make an order, “The parents be respectful of one another. Think before you do something – before you send a text message”. I cannot change the way in which the parties engage with one another. The only people that can change their relationship with one another are the people themselves.
This case is enormously difficult given the significance of X’s relationship with both parents, the tangible mistrust between them and not least Ms Damus absenting herself from them, and as a result, as I said at the outset of these quite lengthy reasons for judgment, I have a sense of foreboding about this case, because no matter how I cut and dice, the time, the real danger for X is that she is just going to be exposed to never ending conflict about her. She will have a sense that she is the subject, she is at the heart of a never-ending dispute between those who love her.
The consequences of that are that she may internalise that conflict. She may say, “People fight about me because there is something wrong with me. It is my fault. There is something wrong with me,” and that may lead to all sorts of problems as she grows older. I do not know.
I have to inoculate her against that as best I can. On the basis of Ms R’s report, it is Ms Anders who is best placed to provide that inoculation because she as Ms R says in her report:
…[Ms Anders] presented with increased willingness and capacity to maintain a child-focused and support [Ms Damus]’ relationship with [X]. In contrast, [Ms Damus] presented as largely hostile towards [Ms Anders].
[Ms Damus] presented as self-focused…[1]
[1] See Family Report dated 9 August 2023 at [94]-[95].
So, Ms R agrees with my perhaps pessimistic assessment that X has, given her age, that she is vulnerable to emotional or psychological harm, and regrettably, Ms R thought it was not beyond the bounds of possibility that Ms Damus might come to undermine X’s strong relationship with Ms Anders.
So, in summary, in her report she says as follows:
[Ms Anders] presented as more attuned, child- focused and empathetic parent, with an insightful understanding of [X]’s needs. Empathy enables a parent to understand the impact of parental responses on a child, including harmful parental responses. This is a crucial deterrent to causing children harm. Empathy assists in ensuring safe and appropriate parental responses. [Ms Anders]’ presentation and responses were inconsistent with [Ms Damus]’ concerns about [Ms Anders]’ inability to attend to [X]’s needs.[2]
[2] See Family Report dated 9 August 2023 at [100].
In essence, Ms Damus has either exaggerated or manufactured her concerns which are not borne out by how Ms Anders presents and that accords with my own impressions of her as a decent, kind and sensitive human being. I did not, regrettably, form that impression of Ms Damus.
She will say, no doubt, I am biased against her, and that is a result of my gender and my age and quite possibly that because of these factors and my level of education subject that I am subject to all sorts of unconscious bias against her. Perhaps I am. If they are unconscious, I do not know about them. I have to deal with the evidence as it is. I have to finalise this case.
So, I think the child’s best interests will be best served by her living more with her mother, Ms Anders, than with her mother, Ms Damus. The evidence indicates to me that the parties are not able to make consensual decisions about major long-term issues to do with X’s care, welfare and development. The concept of major long-term decisions is defined in the Act at section 4.
It is to do with education, health, religious instruction and decisions to do with moving the child away from the other parent which will have impact for the child having a relationship with the parent left behind. In this case, in 2022, when I first became seized with it, Ms Damus indicated a propensity to unilaterally make a major long-term decision for X. Axiomatically, in my view, she indicated that when she elected to move unilaterally to Melbourne with X.
In terms of decision making for X, I have to decide what is going to work to ensure that appropriate decisions are made and the making of those decision does not devolve into conflict which prevents an appropriate decision being made.
For obvious reasons, it’s a significant thing to say to a parent, particularly a parent within the emotional matrix of this case, that the other parent is to be conferred with exclusive decision-making authority for a much-loved child.
However, in my view, I have to think, what is going to work for this child. Does every issue have to be a battlefield. Perhaps, inevitably, that is going to happen, anyway. I do not know. Ms Anders is open to X maintaining a relationship with her mother, Ms Damus.
In my view, the least bad outcome for X is that Ms Anders be conferred with sole parental responsibility. I do not find her to be capricious or lacking in insight so far as X is concerned. The implication of Ms R’s assessment is that she will not be inclined to shut Ms Damus out.
It is proposed, in essence, vis-à-vis Ms Damus spending time with X, that there be alternate weekends, from after school on Friday to mid-afternoon on Sunday each fortnight, then catch‑up meeting overnight on a Tuesday, with arrangements to share school holidays evenly, when X is a bit bigger.
That seems to me to be a child-focused outcome and given the child’s relationship with each of her parents and their current circumstances, including what has happened over the last year or so to be a. sensible outcome.
In a case like this where the child is essentially divided handover will be problematic. There is nothing I can do about that, but in metaphorical terms the child has to pass between mistrustful parents. This can only happen in a controlled situation. It is an awful metaphor to use, but the only analogy that springs to mind is that of the Cold War and a child moving through a metaphorical east point to a metaphorical west point, in Berlin, through checkpoint Charlie and back again week by week.
I do not know what I can do about that other than wherever possible the parties can use a public place such as a shopping centre for handover or her school. I would hope that with time things will get easier but whether this will be the case I cannot be certain.
I have to consider how best to spare X from being the subject of further litigation. This is very difficult as the essential underpinning of these reasons is that Ms Damus, has foreshadowed there will be more proceedings, in that she will instigate an appeal. That is her prerogative, that’s her right.
However, I am not obliged to hold my judgment in abeyance on that account. I have done, what I have done, and I cannot go back and undo it just because somebody is upset about it. I do not know what X’s views about this are. She is too little. The issues of family violence are significant. There is a family violence order, but it is an interim order.
Ms Damus if she had wished it, could have sought a final order, she did not do so. I was called upon to adjudicate the issue of family violence. I have done so on the basis of the evidence available to me, which is that I do not consider that Ms Anders has an aggressive or controlling personality or poses a risk to X in this respect.
How the issue is unfinished business as Ms Damus has absented herself from the proceedings and from any scrutiny of her behaviour. Much was made of text messages. I do not necessarily care too much about text messages, but they’re a useful contemporary aid to explain what did or did not happen.
For what it is worth, my take on the parties’ relationship is that it is likely – more likely than not – that it was Ms Damus who was the person who was controlling in all sorts of ways, not necessarily violent ways but in emotional ways, in order to get what she wanted.
That may ultimately not be her fault. I do not know. I am not a psychologist. I am not a psychiatrist. I can only deal with how she presented with me, which was essentially if she did not get her own way or someone did not agree with her, there was an escalation of problems.
I hope, I have tried to make things as humanly focussed in these proceedings as I possibly can. In this case I possibly failed. Others must judge my conduct as they see fit. Anyway, for those reasons, I am satisfied that the orders proposed by Ms Anders are sensible and child focussed and as such in X’s best interests.
I do not think it would be useful for Ms Anders to be under the obligation to tell Ms Damus how her medical treatment is progressing. I heard from evidence from her treating specialist yesterday. Ms Damus did not elect to attend court to ask questions. Ms Anders is compliant with the advice that has been provided to her. She is going to have more treatment. That is going to be no doubt difficult. I wish her well. I hope it goes well.
On the basis of the evidence available which has also been subject to the scrutiny of the Independent Children’s Lawyer, I am not going to adjourn this case. If something turns up, that will have to be dealt with if and when it turns up. Whether or not I will be the docket judge in charge again, I do not know. It is not for me to say.
The parties both have a facility with parenting apps, and I think this is likely to the best way to get a message instantaneously to the other in the most civilised way possible. Handovers are going to be a problem. What is proposed is it is sensible if there are trusted intermediaries there.
Clearly, if anything awful happens to X, whilst in the care of one parent, the other parent needs to be told in the sense of they need to keep each other informed of their residential addresses. There has been a perception that Ms Damus has not always been transparent in that regard, and it is not what she is entitled to or what she wants. When a child is involved, you forego that entitlement to keep an address secret, I consider, in all but the most extreme of circumstances.
In terms of the kindergarten, it seems to me, given that Ms Anders is going to be providing more of the child’s care, it makes practical sense that it be Q School where the other kids from the kindy, which X attends will go and so ensure X stays with her cohort of friends and buddies.
I cannot know what sports or recreation X will take up as she progresses through her childhood. I am sure they will be many and varied. I do not know – but that is one of the pleasures of being a parent – seeing you child jumping over the gymnastics horse or twirling a ribbon or hitting a hockey ball, singing in a play or whatever they do these days.
Clearly both parties will want to be a part of these activities. I just hope, perhaps vainly, that this can occur without animosity. I have cases where the parents glower at each other from the opposite ends of a netball court or a school assembly hall. That happens. - I just hope everybody can avoid that particular madness. Same with school and so on and so forth – hospital treatment. I have had cases of children at death’s door with parents trying to punch into each other. These parties love X and need to be able to set aside their differences to focus on her.
One of the extraordinary things about this case is that, to a certain extent it has worked not too badly up to this stage, and I suspect that is more to do with Ms Anders, because of that word “empathy”. The injunction proposed are sensible.
The parties will be to a certain extent parenting this little girl in parallel. That is sad but, in my assessment, inevitable at this stage. Necessarily, the injunction about physical abuse underlines one of the givens about contemporary parenting that physical discipline is an anathema in this day and age.
The orders about travel appear to be sensible. I recall there was a controversy about X going on holiday interstate at one stage. I do not think there is any reasonable prospect of Ms Anders leaving Australia or moving far away from Ms Damus, with X, unilaterally.
So, these orders proposed have the imprimatur of the independent children's lawyer. Ms James has along with Mr Seymour discharged their responsibilities under section 68LA of the Act. In am satisfied that they have considered all the evidence and have advocated the outcome which they think represents the child’s best interests. They have in my view discharged those obligations in an extraordinarily difficult case, as they are required to do under the relevant legislation.
Above all, I am satisfied that the order proposed will serve X’s best interests. The child will be safe in Ms Anders’ care, notwithstanding the allegations made against her and notwithstanding the fact that she faces a challenge in future about her health. As I say, I wish her well, and I hope I do not have to see her in this unhappy place again.
These orders will ensure that she has a meaningful relationship with those who love her. It is not what Ms Damus would have wanted. I have tried to explain why and how we have got to this juncture, as best I can.
So, I will order and settle the reasons so that Ms Damus can read them. I am subject to the review of everything I do in a superior court, and everything I say is transcribed. Sometimes, as we know as with text messages and so on and so forth, the nuance does not come across in the written form, the chuckles and so and so forth do not come across. I gave a chuckle there.
So, for those reasons, I am going to make orders in terms of the minute that are proposed and supported by the Independent Children’s Lawyer. I am going to discharge Ms James and Mr Seymour. Whether they get re-engaged at a later stage, I do not know.
I will direct that Ms Damus pay the costs of the recusal. I think, notwithstanding legal aid - and I know Ms Damus is not to be considered a wealthy person - but costs should follow the event, and I will direct that costs be paid in the fixed sum of $1964.
I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Brown. Associate:
Dated: 19 February 2024
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