DIMAS & SARANTOS

[2020] FamCA 9

FAMILY COURT OF AUSTRALIA

DIMAS & SARANTOS [2020] FamCA 9

FAMILY LAW – RECOVERY ORDER – where the mother has unilaterally retained two young children in Greece – where children have been wrongfully retained within the meaning of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction – inappropriate to make a recovery order which would have the effect of removing the children from the care of the mother immediately on the return of the children to Australia.

FAMILY LAW – PARENTING ORDERS – where it is in the best interests of the children to be returned to Australia forthwith – where parents should be prohibited from removing children from Australia – where interests of the children should be independently represented.

Family Law Act 1975 (Cth)
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children

APPLICANT: Mr Dimas

RESPONDENT: Ms Sarantos

FILE NUMBER: DGC 3488 of 2019

DATE DELIVERED: 14 January 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kostas

SOLICITOR FOR THE APPLICANT: M.O.K. Law

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1. I adjourn the father’s application for a recovery order filed on the 21^st of August 2019 to a date to be fixed. 

2. The mother forthwith return the children X born … 2011 and Y born … 2016 (“the children”) to Australia.

3. Once the children have returned to Australia, each of the mother, Ms Sarantos, and the father, Mr Dimas, and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X, female, born … 2011 and Y, female, born … 2016 from the Commonwealth of Australia until further order.

4. X, female, born … 2011 and Y, female, born … 2016 be and are hereby restrained from leaving the Commonwealth of Australia.

5. IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order.

6. A copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

7. By not later than 12 noon on the working day following the return of the children to Australia, the mother cause all passports for the children which are in her possession, custody or control, to be lodged with the Registrar of this Registry of the Court, located on Level 1 of this building, being 305 William Street, Melbourne.  Thereafter,  such passports remain in the safe custody of the Court, pending further order. 

8. Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children X, female, born … 2011 and Y, female, born … 2016 be independently represented by a lawyer AND IT IS REQUESTED that, once appointed, the independent children’s lawyer make contact with any representative of the children in Greece.

9. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

10. Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

11. I reserve liberty to the husband and the wife and the independent children’s lawyer to make application urgently for parenting orders to take effect upon the return of the children to Australia and for such application to be listed before me, in the event that I am reasonably available, by arrangement with the Case Coordinator or the Docket Registrar – email …. 

12. I DIRECT that my reasons for decision this day, when settled, be provided to the parties and to the Australian Central Authority and a copy of this Order be sent to the Australian Central Authority. 

13. IT IS REQUESTED that, resources permitting, these reasons for decision be translated into the Greek language and the Greek translation be published to the parties and to the Australian Central Authority. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dimas & Sarantos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3488 of 2019

MR DIMAS

Applicant

And

MS SARANTOS

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. The father, Mr Dimas, applies for a recovery order in relation to the children of his marriage to the respondent mother, Ms Sarantos.

2. A recovery order is an order made by the court under Part VII Division 8 of the Family Law Act 1975 (Cth) (“FLA”) which, amongst other things, can authorise and direct persons such as the police to find and take possession of the child for the purpose of returning the child to parent who is entitled to have the children residing with that parent who is entitled to have the children residing with that parent. A recovery order can also authorise or direct that the mother be arrested without warrant, if she attempts to take possession of the child again without permission of the Court.

3. These reasons explain why I will not make the recovery order sought by the father at this stage.

Application and evidence

1. The father’s Application was filed on 21 October 2019 in the Federal Circuit Court of Australia at Melbourne.  It was transferred to this Court, the Family Court of Australia, on 3 December 2019 and comes before me for the first time today in the judicial duty list.  The Application was served on the mother by being sent to her email and old Facebook Messenger on 15 November 2019.  I am satisfied that the mother has notice of the application but elects not to be represented today.  She was called at the door of the Court and there was no response.

2. Ms Kostas, solicitor, appears for the father.  The facts set out in these reasons are taken from the affidavit of the father sworn on 21 October 2019, which was served on the mother, and Ms Kostas’ responses to my questions.  

Best interests of the children is the paramount consideration

1. A recovery order is a parenting order. In deciding whether to make a particular parenting order, I must regard the best interests of the children as the paramount consideration. In determining what is in the best interests of the children, the primary consideration, to which I must give most weight, is the need to protect the children from physical or emotional harm. The next primary consideration is to assess the benefit to the children of having a meaningful relationship with both parents. There are numerous additional considerations set out in section 60CC(3) of the FLA which provide for all manner of things to be taken into account including the capacity of each parent to care for the children.

Parties

1. The father is 49 years old, having been born in Greece in 1970.  He migrated to Australia when he was a baby and has resided here since.  He is a citizen of Australia.  He is not currently working.  He has formerly been employed as a tradesman’s assistant.  He is on a disability pension, and receives and income of approximately $30,000 per annum. 

2. The wife was born in Country B, in 1982.  She is 37 years old.  She first entered Australia on 2011.  She has permanent resident status in Australia, which entitles her to leave and return to Australia, remain in Australia indefinitely and claim social security benefits whilst living here.

3. Both parents have family members living in Greece and in adjoining and nearby countries.

Children

1. The children of the marriage are X, who is aged eight. In 2019, X was enrolled in Grade 2 at C School.  Y is three years old and does not attend school yet.  In 2019, Y attended “D Pre-School”, in Suburb E, for one session per week.

2. The children are Australian citizens.  The children have Australian passports. To the extent, if any, that the children are entitled to Greek or Country B citizenship by descent, nothing has been done to claim those citizenship rights.

Parental responsibility

1. No parenting orders have been made in relation to the children. Accordingly, the mother and the father each have parental responsibility for the children notwithstanding that they have separated or may divorce. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. 

Dispute

1. The father states that he and the mother and their daughters travelled to Greece on 10 June 2019 for an annual family holiday.  The family travelled on return tickets.  The family’s return journey was booked for 24 August 2019.  The parents holidayed together and separately with the children until the 24 August 2019.  On that day, the husband received a message from the wife, by Facebook Messenger, which I have seen printed in Greek.  I am told from the bar table that it says words to the effect of:

   “The child, X, is sick.  She has a fever.  She is sleeping now, but I think you should know that we will not be flying today.”

2. The family were due to fly home to Australia on that day.  The husband responded by Facebook Messenger in the following terms:

   Dear Ms Sarantos,

   I, Mr Dimas, father of the Australian citizens, X and Y, I DO NOT, consent for my children to be withheld and restrained from returning as per our original agreement according to her airline ticket back to Melbourne, Australia, today, 24/9/19.  I expect both of our children to be at Athens Airport for their safe return back home.  I will be reporting this matter to all federal and lawful authorities.  I believe this is a federal crime and I am now concerned regarding my children’s safety.

3. The father’s belief about the mother having committed “a federal crime” is not correct. The FLA has recently been amended to include criminal sanctions for the retention of children outside of Australia under some circumstances. On 24 April 2019, section 65YA or 65ZAA of the FLA came into effect creating criminal offences for retaining a child outside Australia where a parenting order has been made in relation to that child or proceedings for a parenting order are pending. These offences are punishable by up to three (3) years imprisonment. However, as no parenting order had been made, nor parenting application pending in relation to either or both of the children as at 24 August 2019, the mother’s alleged retention of the children in Greece on 24 August 2019 does not constitute “a federal crime” or a criminal offence.

Relevant historical background

1. The mother and father met in Greece in October 2010.  The father returned to Australia in December 2010. The mother followed in January 2011, by which time she was three months pregnant. 

2. In February 2011, the husband sponsored the wife for Australian citizenship. 

3. The parents married in 2011 in a civil ceremony in Melbourne.

4. Upon marriage, they moved into a rental property, at F Street, Suburb E which is close to the paternal grandmother’s home. 

5. The parties separated in 2014, when the father left the former matrimonial home and started to reside with his mother.  After approximately six months, the father moved back into the former matrimonial home and he and the mother commenced to live separately under the one roof.  They looked after the children together.  There were no formal parenting plans or any Court Order to reflect the parenting arrangement.  

6. Each year, the parents went on a family holiday together with the children.  Upon arriving in Greece on 10 June 2019, the mother, father and children remained together for one or two weeks, and then the parents went their separate ways, with the mother taking the children to northern Greece to visit family members.  After approximately a month, the father travelled to northern Greece.  He spent time with both girls on 2 to 3 August, 8 to 12 August and from 14 to 19 August. 

7. I am informed that, after the children were returned to the mother on 19 August 2019, the father received several electronic communications from the mother in which she inferentially raised concerns about the father’s care of the children, including that X had head lice and a mark on her arm.  There was no direct allegation or accusation.  

8. The mother held a party for X’s 8^th birthday, to which the father wasn’t invited.  The father attended, nonetheless, and found the mother and her family members to be cool and remote.  There was certain negative insinuations but no allegations.

9. On 22 August 2019, the mother and father argued. 

10. On 24 August 2019, the day that the family was due to return to Australia, the father received the message, which I have referred to earlier in these reasons.

11. The father considered that he had no alternative but to return to Australia, on his pre-paid ticket, and he did so.  His return to Australia was in no way an agreement to the wife’s retention of the children in Greece or an abandonment of the children. 

The 1980 Hague Abduction Convention

1. The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Abduction Convention”) is a forum selection treaty.  It entered into force between Australia and Greece on 1 June 1993. 

2. I have been provided with a copy of the draft application (Exhibit “A”) drawn by the father’s lawyers for the return of the children pursuant to Article 12 of the 1980 Abduction Convention.  From the facts before me today, unchallenged by the mother, it appears that the formal requirements for a return order under the 1980 Abduction Convention are satisfied and the children have been wrongfully retained by the mother in Greece within the meaning of Article 3 of the 1980 Abduction Convention.  That is: -

   (a)The children are both under the age of 16 (Article 4);

   (b)The father has rights of custody of children within the meaning of  Article 5(a) by virtue of having parental responsibility for the children;

   (c)The father was actually exercising his rights of custody immediately before the alleged wrongful retention on 24 August 2019, the children’s departure from Australia was for the purpose of the holiday to which the parents agreed and the father attended;

   (d)The children were habitually resident in Australia immediately before the alleged wrongful retention by the mother on the 24 August 2019 (Article 3);

   (e)The mother repudiated her previous agreement to return to Australia on 24 August 2019 by the Facebook message she sent on that day and by not boarding the flight back to Australia;

   (f)The retention of the children in Greece was contrary to the father’s rights of custody, in particular, his right to determine the place of residence of the children. 

3. The father’s response to the mother’s statement that “we will not be flying today” indicates that he did not consent to the mother’s retention of the children in Greece. 

4. I am one of three judges designated by Australia to the International Hague Network of Judges for the operation of the 1980 Abduction Convention.  The other Hague Network judges for Australia are:

   ·the Chief Justice of the Family Court of Australia, the Honourable Chief Justice Alstergren; and

   ·Justice Jill Williams.

5. In Hague return proceedings in Australia, the return of children to another contracting state is frequently made subject to certain conditions which are temporary in nature but designed to create a soft landing for the child and the taking parent.  Conditions must be simple, feasible and are only temporary.  These conditions may be formulated and enforced through cooperation between Hague Network Judges designated for each contracting state.  Unfortunately, Greece has not designated a judge to the International Hague Network of Judges.

Discussion

1. A recovery order is an order which can be made to enforce an entitlement of one parent to have the children reside with that parent.  That entitlement might be pursuant to an order or a long standing arrangement.  That is not the case here.  A residence order has not been made in the father’s favour.  I am not satisfied on the evidence that the children’s best interests would be served by residing with the father, to the exclusion of the mother, as soon as they return to Australia. 

2. A priority for children who are returned under the 1980 Hague Abduction Convention is to have arrangements which make the return physically and psychologically safe for them.  The recovery order sought by the father would have the effect of the children being removed from the mother immediately upon her return to Australia, the children being placed in the care of the father.  The mother would not able to spend time with them until a court orders that she can do so.  As the children will have been in the sole care of their mother for some months, I am far from convinced that it would be in the best interests of the children for their care arrangements to be disrupted to that extent immediately upon their return.  The needs of the children for predictable and stable care must take priority over what may be considered to be fair as between the parents.

3. The father appears to be a suitable carer for the children if the mother does not return with the children to Australia.

Father’s alternative applications

1. I will permit the father’s advocate to make oral Application for orders other than the recovery order.

Return of children to Australia

1. I am satisfied on the father’s evidence that the children should be returned to Australia.  This is the jurisdiction in which the children have grown up, it is the environment into which they are integrated.  Australia is where most of the witnesses and evidence relevant to any parenting proceedings is located.  It is not appropriate for the mother to retain the children unilaterally in Greece or elsewhere and require the father to litigate parenting arrangements in another jurisdiction of her choice. 

2. On the evidence I have before me, I am satisfied that it is in the children’s best interests to be returned to Australia so that the courts here can make a principled decision about parenting arrangements.

Independent Children's Lawyer

1. The unilateral act of retaining or removing a child from one country to another is usually emblematic of highly conflictual relationships and the legitimate needs of children can be overlooked.  Where it appears to a court that children’s interests in the proceedings ought to be independently represented, the court may request that an independent lawyer be appointed for the children.  I am satisfied this is such a case so I will request that an Independent Children’s Lawyer be appointed for the children.

2. Victoria Legal Aid will appoint an Independent Children’s Lawyer from its panel of specialist practitioners.  The role of the Independent Children’s Lawyer is to form an independent view, based on available evidence, of what is in the children’s best interests and then act in any further parenting proceedings in what she/he believes to be the best interests of the children.[1]  The Independent Children’s Lawyer is not a legal representative retained by the children and is not bound by any instructions from the children.[2] The role of the Independent Children’s Lawyer is to deal impartially with the parents, to ensure that any views expressed by each child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The Independent Children’s Lawyer is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings,[3] and to facilitate an agreed resolution of matters at issue in the proceedings, to the extent that it is in the best interests of the child to do so.[4]

   [1] s 68LA(2) Family Law Act 1975 (Cth).

   [2] s 68LA(4) Family Law Act 1975 (Cth).

   [3] s 68LA(5)(d) Family Law Act 1975 (Cth).

   [4] s 68LA(5)(e) Family Law Act 1975 (Cth).

1. An Independent Children's Lawyer is likely to apply for an assessment and family report by one of the psychologists or social workers employed by the Court.  The parents and children will be assessed, without cost, and a report will be published for the Court and the parties.  Details of how this Court deals with parenting cases are on the Court’s website at

2. An Independent Children's Lawyer also has access to excellent mediation services in which the parents can participate at no financial cost.  Indeed, those mediation services will be available for use by the parents as soon as the Independent Children's Lawyer is appointed and can be accessed by the mother from Greece.

Watch list order

1. Once the children are returned to Australia, both parents should be prohibited from removing the children from Australia until the Court orders, or the parents agree, that it is appropriate that the children can be removed temporarily or permanently.  I will make a Watch List order in the usual terms.  The Watch List is in place at all international airports and seaports in Australia.  If a parent tries to take the children out of Australia, Australian Border Force will tell the Australian Federal Police and the children will be stopped from leaving Australia until the Watch List order is lifted.

Matter to be listed urgently on request

1. Finally, I will make provision to hear the interim aspects of this case immediately upon the return of the children to this jurisdiction or even before the children leave Greece, if that is what the parents want.  The matter can be listed before me urgently in the event that I am available.  I am confident that any application by the mother or father including an application for the mother to relocate the children to Greece permanently, could be dealt with promptly. 

The 1996 Hague Convention on Parental Responsibility and Protection of Children

1. The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”) entered into force between Australia and Greece on the 1^st of June 2012.

2. The 1996 Convention supports the operation of the 1980 Hague Abduction Convention and otherwise facilitates cooperation between contracting states in all manner of ways.  Broadly speaking, in the language of the 1996 Convention, a parenting order is “a measure of protection”.

3. On the facts presented to me, Australia has preeminent jurisdiction to take measures (make parenting orders) pursuant to Article 5(1) of the 1996 Convention because the children are habitually resident here.  Article 7 also operates to preserve Australia’s jurisdiction over the children.  

4. The jurisdiction of the courts in Greece to make orders about the children is limited to Article 11 (urgency) and Article 12 (provisional) and is based on the children being present in Greece.

5. Article 23(1) of the 1996 Convention provides for recognition of measures (orders) made in another contracting state by operation of law.  That means that, unless recognition is refused under Article 23(2), an order made in Greece will be recognised in Australia.

6. Recognition of an order does not equate to enforceability.  Article 26 requires each contracting state to have a simple and rapid procedure for the enforceability of measures (orders) which have been recognised.  Our procedure is both swift and simple.  Our Hague Registrar, Registrar George … is the first point of contact to make an order from another contracting state enforceable in Australia. 

7. If the court in Greece, which is seized of the Hague return application in Greece, wants to impose conditions to return, I invite the judicial officer to contact me or one of the other Hague Network Judges for Australia to discuss the requirements for such conditions to be enforceable.  The only formal requirement for direct judicial communication is that the parties consent to it.  Having regard to international time zones it is preferable for communication to be by email.  Any such communication may be directed to ….

Publication of reasons

1. I will direct that these reasons for decision be published to the parties.  I also direct that the reasons be sent to the Australian Central Authority without being anonymised.

2. It is my expectation that these reasons will be transmitted to Greece and be brought to the attention of the judge seized of any return application in Greece. 

Conclusion

1. For the above reasons, I decline to make the recovery order sought by the father at this stage.  I am satisfied that it is in the children’s best interests to be returned to Australia as soon as possible.  However, if the mother returns with the children, I am currently satisfied that the children would benefit from continuity of her care until this Court hears evidence and arguments from all parties including the Independent Children's Lawyer about alternative parenting arrangements.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 January 2020.

Associate: 

Date:  16 January 2020