ECONOMOU & ECONOMOU

[2015] FamCA 239

FAMILY COURT OF AUSTRALIA

ECONOMOU & ECONOMOU [2015] FamCA 239

FAMILY LAW – CHILDREN – Best Interests – Where a two day trial was listed to determine final parenting orders – where the father failed to appear at the pre -trial mention – where the ICL contacted the father and confirmed his intention to appear at the trial – where the father failed to appear at the trial – where final orders are made in the father’s absence – where orders are made to protect the children from harm – order that the children live with the mother and spend no time with the father – order that the mother have sole parental responsibility of the children.

Family Law Act 1975 (Cth)

APPLICANT: Ms Economou

RESPONDENT: Mr Economou

INDEPENDENT CHILDREN’S LAWYER: Julie Ferguson

FILE NUMBER: LEC 376 of 2010

DATE DELIVERED: 7 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 7 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mason of Counsel

SOLICITOR FOR THE APPLICANT: Ms Manson
Legal Aid New South Wales

THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Berry of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ferguson
GJ Legal Solicitors

Orders

Parental Responsibility

1. That the mother shall have sole parental responsibility in respect of the children O born … 2002 and B born … 2004 and C born … 2008 (“the children”).

Live With

1. That the children shall live with the mother.

Time with the Father

1. That the children shall spend no time with the father.

Communication

1. That each party shall inform the other in writing of their current postal address at which they can be contacted in writing by letter and shall inform the other of any change in those particulars within 48 hours of any change.

2. That the father shall be at liberty to communicate with the children at such times and via such means as the parties may in writing agree and failing agreement, the father may communicate with the children only by sending to them one birthday card each and one Christmas card each and/or letters and/or photos as he may choose, but only via Australia Post sent to the postal address nominated by the mother, and the mother shall be at liberty to withhold from the child any communication in her opinion likely to cause the child distress.

Specific Issues

1. That the mother shall notify the father as soon as reasonably practical of any of the children being admitted to hospital.

2. That the father is restrained and an injunction issues pursuant to s 68B of the Family Law Act 1975 (Cth) (as amended) restraining him from knowingly attending at any school attended by the children or any of them and from knowingly coming within 500 meters of the children’s residence.

3. That the children’s passports currently held in the Registry of the Family Court at Brisbane be released to the mother.

4. That the Australian Passports Office is authorised to renew any and all of the children’s passports on application by the mother without the consent of the father.

5. (a)      That the father, Mr Economou born … 1977, be restrained and his servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of O born … 2002 (male), B born … 2004 (female) and C born … 2008 (female) from the Commonwealth of Australia.

   (b)O born … 2002 (male) and B born … 2004 (female) and C born … 2008 (female) be and are hereby restrained from leaving the Commonwealth of Australia.

6. It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until further Order of the Court.

7. That the father is at liberty pursuant to s 121(9)(g) to publish to a psychiatrist and to any therapist referred by that psychiatrist to whom he obtains a referral for assessment and treatment the following documents:

   (a)       a copy of these Orders;

   (b)a copy of the “Memo Re: Family Report” dated 11 December 2013 and the Family Report dated 3 February 2014 both by Family Consultant Ms E; and

   (c)a copy of the Reasons for Judgment given by his Honour Justice Forrest at the time of making these Orders.

AND IT IS FURTHER ORDERED

1. That the Independent Children's Lawyer be discharged.

2. That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (Cth) (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 376 of 2010

Ms Economou

Applicant

And

Mr Economou

Respondent

And

Independent Children's Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. The parenting orders proceedings that are before the Court today were commenced by the mother of the three subject children in what was then called the Federal Magistrates Court of Australia on 8 April 2013.  In that application for final relief the mother sought substantive orders that she have sole parental responsibility for the three children: O born in 2002; B born in 2004; and C born in 2008, who are the three children of her former marriage to the father, Mr Economou.  The mother also sought substantive orders that the children live with her and that they spend time with and communicate with the father as agreed between the parents or if they failed to agree, then as ordered by the Court.

2. The father by Response filed by him put the matters in dispute between the parents in issue in the substantive parenting proceedings before the Court.  In the two years that have elapsed since those proceedings were commenced the matter has been before the courts - namely the Federal Circuit Court as it now is and this Court - on numerous occasions. The proceedings reach their conclusion before me today.  I recall reading in my preparation for the trial that I was to hear today some reference to at least eight judicial officers having had the matter before them and making various orders in the course of those two years.

3. The matter of course has had a volatile history. Suffice to say that the parents have rarely been in agreement about the parenting of the three children, most particularly since they separated some years back.  The lives of these three children have been characterised by moves, not only on many occasions around various parts of northern New South Wales and South East Queensland, but also halfway across the world to Cyprus and back on at least one occasion.  They have also been characterised by ongoing conflict between their parents which included Hague Convention proceedings brought by the mother when the children were unilaterally removed from Cyprus by their father to return to Australia, after they had previously been taken from Australia to Cyprus by the father, with the mother following shortly thereafter.

4. At some point, the date of which now does not particularly matter, there was a court order made by the Federal Circuit Court where the three children were to live with the mother, who was at that stage living somewhere in northern New South Wales, and to have regular weekend time, I think on an alternate weekend basis, with their father.  The children had for some time prior to that lived principally with their father but the nature of the parenting relationship between the mother and the father was according to all the evidence that I have seen, far from cooperative and the circumstances by which the three children were living, ostensibly by agreement between the two parents, with their father were far from satisfactory. I make that observation having particular regard to the evidence given by the mother (a) as to the history of abuse and violence she suffered at the hands of the father during their relationship; and (b) as to the way in which her consent to the three children living with their father and away from her, was effectively obtained by the father, such that it barely represented a true consent. 

5. That having been said, a court determined that the three children were to go to live with their mother on a full time basis, even before the matter got to a final hearing.  Soon after that, the father who apparently did not accept, as I understand the reading of his material, the validity or lawfulness of the order that was made for the children to live with their mother, then began to act unilaterally, withholding the children from being returned to their mother sometime in the second half of 2013. 

6. The mother obtained a recovery order and the children were, as I understand what I have read, located by police soon thereafter at F Town in the G Town area, where they were living with their father and other adult persons in a makeshift campsite described by the police as “a popular illegal campsite” in the G Town area.  At this point, I refer to Exhibit 2 that was admitted into evidence before me today to observe that according to the New South Wales Police, at least, the father refused to hand over the children to them even when they informed him and showed him that they had a court order which authorised them and empowered them to take the children into their possession, to be returned into the care of their mother, who had the benefit of an order that they live with her.  

7. Soon after they went back to live with the mother, as the evidence stands, the father again unilaterally went without permission of the mother to the mother’s home and without her knowledge and permission removed all three children from the home and again disappeared with them. 

8. A few days thereafter, once a further recovery order had been obtained by the mother with her legal representatives assisting her, the children were fortuitously found with the father at the International Terminal of the Brisbane Airport, apparently seeking to leave the country.  I refer to it as fortuitous because it does not seem that they were stopped, on the evidence that I have read, including Exhibit 1 which is a three page Federal Police document that was admitted into evidence today produced by the Federal Police under subpoena, that the father and the three children were stopped at the immigration barrier pursuant to the fact that the children were listed on the Airport Watchlist. 

9. It seems that an observant security officer observed the father acting suspiciously in and around the precincts of the International Terminal and reported his concerns to Federal Police who approached the father and upon inspection found a weapon, namely a large knife, in a backpack which they seized and in respect of which they lodged charges against the father.  They observed the three children in his presence, became aware of the fact that there was a court order for the recovery of the three children, separated the father and the children and executed the recovery order and returned those three children to their mother. 

10. The Independent Children's Lawyer informed me, and I accept that the father has apparently given two versions of why he was at the airport that night. One of those versions is that he and the three children had decided they were going to leave the country and go to Greece and live. The other is that they were simply there to assist a friend to make changes in respect of a flight.  The simple fact that he has given a couple of different versions in the circumstances and has chosen not to attend here today and represent himself causes me to have grave doubts about any assertion by the father that he was at the airport with no intention of seeking to leave the country with the three children. 

11. There is no evidence before me that he actually had flights booked, although the Federal Police document does say that he had told them on the night that he had flights booked with Emirates. However, the Federal Police checked with Emirates who informed the Federal Police that there was no such booking.  That does not mean that he did not have other flights booked or that he was not attempting to at least obtain flights out of the country.  I consider it more probable than not that he was.

12. Subsequently, there was an order in place that the father not have any contact with the children and apart from spending time with them for the purposes of interview and observation by the family consultant who has prepared two family reports in this case, I understand the father has had no contact with the children since that time in late October 2013. 

13. The case was transferred to this particular court. The father has in material that he has filed in the course of readying the matter for trial, indicated that he still opposed the mother’s application for parenting orders and sought parenting orders of his own that gave him sole parental responsibility for the children, ordered that they live with him and permitted him to relocate with them to Greece.  That is why the matter has progressed to trial.

14. The family report writer who wrote two family reports, both of which I have read, ultimately concluded in recommendations made at the end of her last report dated 3 February 2014, that the Court should consider giving the mother sole parental responsibility for these three children, should also consider confirming the orders on a final basis that the children live with their mother and consider continuing an indefinite suspension of the father’s time with the children and his communicating with them.  In her last report the family report writer under a subheading “evaluation” wrote some ten or eleven detailed pages of her thoughts as to the matter and as to why she ultimately expressed the opinions that the Court should do those things that I have just discussed.  Without going through each of those paragraphs in which she sets out her evaluation, I say having read the material that I have, including the affidavits that the father intended to rely upon today and the affidavits that the mother relied upon, that I accept the opinions expressed by the family report writer in that report and accept her recommendations as being recommendations appropriate to form the basis of proper orders to be made by this Court in the best interests of these children. 

15. The matter was listed for trial for two days starting today at 10.00 am and it came before me for a pre-trial compliance check on Tuesday, 31 March 2015.  On that day the Independent Children’s Lawyer and the solicitor for the applicant mother both appeared by telephone.  The respondent father failed to appear.  On the day numerous attempts were made to contact him on the telephone number provided by him to the Court on a previous occasion.  I sat and listened to the attempts to contact him by telephone and ultimately the calls went through to a messagebank that simply said “call back, thank you” and did not even provide capacity for leaving a message. 

16. On that day I indicated to the Independent Children’s Lawyer that I would be pleased for her to make every effort that she could to contact the father to find out and then to pass onto the Court before close of business on Thursday afternoon of last week, noting that that was the break for the Easter vacation that we have just had, as to what the father’s intention was in respect of whether he was going to appear today in this trial.  I was advised by my Associate on Wednesday that the Independent Children’s Lawyer had contacted the Court and told the Court that she had communication with the father and that he had confirmed his intention to appear.  Having heard that, I spent half the day yesterday reading the father’s affidavit material and the mother’s affidavit material to ready myself for the trial this morning. 

17. When the matter was called on at 10.00 am this morning, there was no appearance on behalf of the father and the Court had received no message from the father that he was on his way and he was simply delayed.  Having had experience in many cases where self-represented litigants who live lifestyles that are not necessarily lifestyles that would accord with the punctuality required of people who live in big cities, I accepted the fact that Mr Economou might still be on his way.  I was also reminded that daylight savings reverted to normal Eastern Standard Time over the weekend and considered that to be a possible explanation as to why he was not here. 

18. I stood the matter down to give him time to appear.  Again, I had my Court Officer make a telephone call to the number that the Court had to see if the father could be contacted and again there was no response by Mr Economou to that call.  He did not appear by midday and in that time the Independent Children’s Lawyer and counsel briefed by her were able to confer with the mother’s solicitor and counsel briefed by her to arrive at a common position to put to the court for orders to be made in default of the father’s appearance. 

19. When I came back around midday the Independent Children’s Lawyer, Ms Ferguson, gave evidence and told the Court that she had spoken with the father last week and ascertained from him his verbal expression of intent to attend the Court this morning and to represent himself in these proceedings.  I accepted that as a truthful and honest account and therefore determined that it is quite appropriate to proceed to finalise this matter in default of the father’s appearance. 

20. Counsel for the Independent Children’s Lawyer handed to me a draft of orders that the Independent Children’s Lawyer and her counsel propose the Court makes as proper orders made in the best interests of the children.  They are not made by consent but they are not opposed by the mother, the reason for that being fairly self-evident given that they reflect almost to the word the type of order that the mother was seeking herself from the Court, namely sole parental responsibility in respect of the three children; that the children live with her; and they spend no time with the father. 

21. I have read through these orders that are proposed by the Independent Children’s Lawyer. In light of the evidence that I have referred to, most particularly the evidence about the father’s apparent refusal to comply with previous orders including recovery orders and his apparent attempt to take the children from the country unilaterally without the knowledge and permission of the mother and in defiance of court orders, and having regard to all of the matters I have read in the mother’s affidavits and in the family reports written by the family report writer, I consider these orders to be orders that are in the best interests of the children and orders that actually protect the children from emotional abuse and psychological harm and potentially also physical abuse at the hands of the father if they were to spend time with him.  They also give the children protection from the risk of their mother continuing to suffer emotional abuse and psychological trauma simply through the worry that she would have about their wellbeing if they were to continue spending time with their father in the near future. 

22. On the end of the draft that was handed to me by the Independent Children’s Lawyer was a notation that I was asked to consider making.  It said this:

    That when the father has attended such psychiatrist for assessment and has completed any therapy recommended by that psychiatrist, being a psychiatrist to whom the father has provided the said documents then any application by the father thereafter for a variation of these orders accompanied by an affidavit annexing the assessment report from the psychiatrist and a report from any such therapist shall be deemed to have been made after a significant and material change in circumstances for the purpose of the rule in Rice & Asplund (1979) FLC 90-725.

1. In discussion with Counsel for the Independent Children's Lawyer I determined that I would not make the notation that was asked of me but rather say something in these oral reasons in respect of this matter.  For my part, although I have not had the benefit of any evidence from a psychiatrist or a psychologist who has assessed the father, and provided a professional opinion as to his state of mental and emotional wellbeing, all the material that I have read causes me to have great concerns about the state of the father’s mental and emotional wellbeing. Those concerns are only aggravated by the fact that I was told that only last Wednesday he said he was intending to attend today and today he has not.

2. I would certainly expect and hope that the father might consider his current position having regard to the fact that he is now effectively kept out of the lives of three children who he clearly dearly loves for the foreseeable future.  That has been done not out of spite for him or in some way to punish him, but to protect the wellbeing of these children, a task that this court is statutorily obliged to undertake when making parenting orders.

3. The expectation and hope that I have is that the father will recognise that the key to change in this current situation lies wholly with him and that he will go and seek out some psychologically therapeutic treatment from a psychiatrist or psychologist skilled in psychotherapy, so that he can gain some insight into his behaviour as being the root cause of where he currently finds himself in respect of the parenting of his three children and where they find themselves. 

4. It is not ideal for three children who have had the history that these three have had with their father, to be denied time with him as they grow, but where it is deemed to be in their best interests to be denied that time because of the state of emotional and psychological wellbeing of the father, it must be done. That could only in my view at least be reappraised if the father is able to convince the Court that he has taken some serious steps to obtain such insight and further if he is able to demonstrate to the Court that he has gained such insight such that the wellbeing of the children could only be promoted by spending time with him rather than suffer further detriment. 

5. One would expect if the father is to come back before the Court with a fresh application for variation of these orders that the consideration of that fresh application could only really occur if he is able to convince the Court through the production of cogent evidence that he has taken steps to address these problems and to develop some insight. It is for that reason that I have also ordered as part of the orders I have made today that the father is at liberty pursuant to s 121(9)(g) of the Family Law Act to publish to a psychiatrist or to any other therapist referred by that psychiatrist, a copy of the orders, a copy of the family report and a copy of these oral reasons that I have just given.

6. Accordingly I make all the orders as amended by me in discussion with counsel for the Independent Children's Lawyer.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 April 2015.

Associate: 

Date:  9 April 2015