Kodenikos and State Central Authority
[2010] FamCA 938
•14 October 2010
FAMILY COURT OF AUSTRALIA
| KODENIKOS & STATE CENTRAL AUTHORITY | [2010] FamCA 938 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Stay |
| APPLICANT: | Mr Kodenikos |
| RESPONDENT: | The Director-General, New South Wales Department of Human Services, Community Services |
| FILE NUMBER: | SYC | 7726 | of | 2009 |
| DATE DELIVERED: | 14 October 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Hon. Justice Cohen |
| HEARING DATE: | 8 October 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Boyle |
| SOLICITOR FOR THE APPLICANT: | York Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Harper |
| SOLICITOR FOR THE RESPONDENT: | Legal Services Unit, Department of Community Services |
Orders
That orders 2, 5, 6 and 7 made herein on 29 September 2010 are stayed until 5pm on Friday 10 December 2010.
That N born … April 2009 shall not be removed from the Commonwealth of Australia.
The Court requests that the Australian Federal Police place N born … April 2009 on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the said child from Australia in breach of these orders.
That orders 1, 2 and 3 shall cease to have effect and the child shall be removed from the Airport Watch List forthwith:
a)if the father has not paid $2000 to the mother on or before 12 October 2010; or,
b)if the father fails to made weekly payments of $400 commencing on Thursday 14 October and on each Thursday thereafter whilst the mother remains in Australia pending the father’s appeal herein by payment by direct debit into the mother’s bank account identified by paragraph 4 of Exhibit “A” of 8 October 2010 and fails to meet within a reasonable time the said child’s medical expenses; or,
c)at and after 5pm on 10th December 2010.
Costs are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Kodenikos & State Central Authority is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7226 of 2009
| MR KODENIKOS |
Applicant
And
| THE DIRECTOR-GENERAL, NEW SOUTH WALES DEPARTMENT OF HUMAN SERVICES, COMMUNITY SERVICES |
Father
REASONS FOR JUDGMENT
Before the Court is an application by the Respondent father in Hague Convention on International Child Abduction (Hague Convention) proceedings for a stay pending appeal from a decision I made to permit the mother to remove the parties’ child from Australia and take him to Greece.
The Notice of Appeal is before me. Although the copy I have does not have a filing date or appeal file number, I was told by Counsel for the Applicant that it has been filed although not yet dealt with by the Officer of the Court who deals with the filing of Notices of Appeal, so it has not been given any recognition by the Court of its filing. I accept that it has been filed and that the Court will in due course accept it as having been filed within time.
The grounds of appeal are brief and simple. There are but three. They are:
a)judicial error “in finding that the child was habitually resident in Greece”;
b)judicial error “in finding that the father was a dishonest witness in placing relevance on an interpretation of untranslated Greek documents over objections to the admissibility of those documents”; and
c)because the “findings on credit are unsound having regard to the passage of time between hearing dates and delivery of judgment of seven months.
My understanding of the applicable law is the same as I have stated in Harrigan & Sorraw [2010] FamCA 868 which was delivered on 23 September 2010. The relevant parts of that judgment apply here as if they are reproduced, these parts being paragraphs 2, 3, 4 and 5. In summary, the Court should, in determining whether a stay is to be granted in proceedings pursuant to s.111B of the Family Law Act 1975, consider:
a)the rights of the child, which include its right to have its best interests (which are not the paramount consideration) protected in the interim until the Court in the Hague Convention country where it is habitually resident can deal with these;
b)the expected delay on appeal;
c)whether refusal of a stay will make the appeal nugatory if it succeeds;
d)the balance of convenience of the parents; and
e)the prospects of success on appeal by the applicant for a stay.
The child in question, N, was born in April 2009 in Greece. His parents were held by me to be, in all probability, habitually resident there before he was brought to Australia in early July 2009. He is still here. I held that he continues to be habitually resident in Greece. The mother wishes to return with him to Greece. Despite the father’s opposition, I made orders which permit her, rather than require her, to return N to Greece to live with her until such time as a Greek court with appropriate jurisdiction decides any issues brought before it over his custody and residence.
The parties separated while N was in Australia. The wife returned to Greece in very early September 2009 in the belief that the father would return to Greece with N to live with her about two weeks afterwards. The father failed to return and kept N in Australia, so the mother came back to Australia. She arrived here in early October 2009 and has remained here since then. Between 5 October and 4 December 2009 she was allowed little access to N, although, from the time of his birth until she returned to Greece in September 2009, she must have been N’s primary carer. She had been a full time mother and housewife and the father had for most of the time since N’s birth, held full time employment. Since 4 December 2009, when a federal magistrate made interim orders, N has spent about equal time in the care of each parent.
It is likely, because the father has continued to have full time employment, that although when N is in his care he makes the decisions involved in his care, the actual care is shared between him and the members of his family. When N is with the mother, she probably solely attends to him.
The father is Australian. He went to live in Greece in 2007. His parents live in Australia. He has a sister who lives in Greece in the area where the parents lived and the mother comes from. He has formed a permanent relationship with a person who, obviously, lives in Australia but, from her nature, appears to be of Greek background
The mother had never been to Australia before she arrived in September 2009. She is only 19 years old. Although she probably understands and speaks English passably, it is not her mother tongue. She has no income while here and has been able to stay in Sydney due to the generosity of an uncle and cousin. Her parents and other members of her close family live in Greece in the town where the parents lived before coming to Australia.
Since her return to Australia, the father has paid nothing to the mother for her support. Now they have agreed that the father will pay the mother $2000 by 12 October 2010 and pay N’s medical expenses. These payments are not the subject of any conditions. However, while the mother remains in Australia pending the appeal, he will also pay her an additional $400 per week.
The Hague Convention hearing was limited to one issue; that of N’s habitual residence. No attention was paid to his best interests and I did not consider his best interests in the light of any of the evidence. The only findings in the judgment which are relevant to his best interests are stated above. From those, it can be said that it is likely that N is more attached to his mother but has a relationship with his father and grandmother and other members of the father’s family which makes them significant to him, bearing in mind that he is only 18 months old.
It is likely that the mother has been and will continue to be stressed by being effectively kept here unwillingly if a stay is granted. She has been separated from her close family somewhat against her will because she has, rightly, been unwilling to remain in Greece while her son is in Australia. She must have had little access to her close family for support both emotionally and materially. The relatives in Australia who have provided support for the mother were previously little known to her. At the hearing she gave me the impression she was somewhat humiliated and certainly uncomfortable in being forced to rely on them. The $400 per week will not permit the mother to live independently but she will be able to use it to contribute toward the cost to her relatives of her upkeep here. It is likely that her stress will continue for as long as she remains in Australia and will be conveyed to N. It will also undermine the mother’s ability to care for N.
Accordingly, if N remains in Australia, which is the aim of the father in seeking a stay, it will to some extent undermine his welfare. However, if he does remain here, he will maintain the assumed benefits of having time with and being cared for by his father and his father’s extended family. These two possibilities must be seen in the light of the fact that it is not known where and under what residential and care regime N will ultimately live and, if N does return to Greece, whether the father will follow him there. I am satisfied, on balance, that the mother will live wherever N lives.
Weighing the above leads to the conclusion that N’s best interests favour the refusal of a stay unless the stay is of short duration.
The issue of delay goes beyond that involved in the hearing and determination of the appeal because of the grounds of appeal. For reasons which will be apparent when I discuss the prospects of success of the appeal, I am of the opinion that if the father succeeds on appeal that will not determine the issue of habitual residence. A new trial will be needed to consider any new evidence and the credit of the father, the mother and their witnesses, so the delay to be contemplated includes the prospect that there will be additional delay in obtaining a retrial on the merits and decision on it. On determination of the appeal, the Full Court will be able to decide whether or not to require N to remain in Australia until final determination of the issue of habitual residence in the event the appeal succeeds. The delay in hearing the appeal is likely to be small. I have been informed that the Full Court can hear the appeal by the end of the second week in December. I cannot say how long it will be before judgment is given, although that is not likely to be delayed. The uncertainty which remains is in the time before rehearing if the appeal succeeds. In itself, it is in my view, a reason to refuse a stay so that the situation which I have found to exist; habitual residence in Greece, can be reassumed. It is preferable to the prospect of maintenance of a situation for any significant time which, on my findings, the father has by deception imposed on N and the mother, in the face of future uncertainty. That the Full Court will decide whether the mother can return N to Greece in the light of the outcome of the decision on appeal does not excuse me from the obligation to consider all the possibilities which are consequential on the grant or refusal of a stay including those beyond the time when any order I may make will apply.
If the appeal is heard and decided in enough time before Christmas to allow the mother to return to Greece for this festival, common sense demands that a stay be granted unless there are compelling reasons to refuse it. I understand that if the appeal is not heard before the end of the second week in December 2010 (10th December) it will not be heard before February 2011. In that event the delay up to appeal together with the likely delay after the appeal is heard is such that there would no longer be any reason to grant a stay on the ground of common sense.
I have been informed by Counsel for the father that it has been commonly held in Hague Convention proceedings that refusal of a stay, because it will allow the child and one parent to return to a foreign country, will render an appeal nugatory. I strongly disagree with such a simplistic approach, if that is what has been taken. It is one which smacks of prejudice; i.e., that a court of a Convention country is not likely to return a child to Australia in the event that the appeal succeeds or the appellant succeeds on a re-trial, if the Australian Court allows the child to temporarily live in that country pending appeal. Analysis of the true position results in the conclusion that a Greek court is highly likely, as in my experience foreign courts have shown themselves to be in the more usual Hague Convention proceedings, to return children to the jurisdiction of their habitual residence when a case for doing so under the Convention has been established.
Recent research by the United States Department of State has demonstrated, through its 2010 Report, that nearly all signatories to the Convention are highly compliant in relation to abductions from the United States of America. Greece is not an exception. Greece is not likely to be different in its relations with Australia.
I have reached the view that refusal of a stay will not negate the benefits that a successful appeal will give the appellant by analysis of the procedural steps and the consequences which would be involved. Ordinarily, if a child is in Australia, Australian family law will apply to give what are called, in the Convention, rights of custody and rights of access over a child, irrespective of the child’s habitual residence. These rights do not alter the child’s habitual residence. Much the same position applies in Greece. The evidence at the hearing was that married parents have common custody of their children; that is, they exercise parental rights and duties by their joint and several rights. Thus the father will retain his rights of custody over N if N is returned to Greece so the mother will not be able to unilaterally alter his habitual residence unless a Greek court allows her to. This is likely to occur until and unless the Family Court of Australia decides ultimately that he is habitually resident in Greece.
In the principal proceedings, the only issues were over the child’s habitual residence and whether he had been wrongfully removed to or retained in Australia. I found that N was habitually resident in Greece before being wrongfully removed to or retained in Australia. If N is permitted to return to Greece pending appeal, that I made residence and custody orders in the judgment appealed from to permit his return to Greece to be free of conflict and uncertainty until a Greek court is able to deal with any parenting dispute, will not alter his country of habitual residence whether it is Australia or Greece. The interim custody order was made as a result of the jurisdiction I had under the Convention Regulations and s111B(4) of the Family Law Act. The interim residence order was made under my general Family Law Act jurisdiction to make such an order.
An order under Australian law for residence in Australia or Greece will not alter a child’s habitual residence unless one parent also has the exclusive right to determine the child’s habitual residence. Pursuant to s111B(4)(a) of the Family Law Act, both parents are to be regarded as having rights of custody for the purpose of the Hague Convention unless a parent has no parental responsibility for the child as a result of a specific order of a court. Here, there has been no order taking away the husband’s parental responsibility except as limited to residence or custody pending an order of a Greek court. It is to be noted that s61C(1) gives full parental responsibility to each parent in the absence of a contrary order by a Court with jurisdiction but that s61D ensures that orders of the Court only diminish parental responsibility to the extent specifically provided for by the order and that the balance of parental responsibility is retained in the parent affected by the order.
Thus the situation, simply put, is that if the Full Court or the Court at a rehearing decides that N was habitually resident in Australia immediately before he was allegedly wrongfully retained in or removed to Australia and N is in Greece when that decision is made, the father will be entitled to ask the mother that he be returned to Australia pending a decision by an Australian court with jurisdiction to decide issues over the parenting orders to be made for him; issues which ought to be dealt with by the Courts of the country in which he is habitually resident after having been wrongfully detained in Greece. At his age, the exceptions which would require refusal of a return order could not apply in the circumstances here. If the mother fails to return him, the father will be entitled to ask the Central Authority to request the Greek Central Authority to take the steps necessary under the Hague Convention to compel his return. The Central Authority is bound to act on the father’s request and the Greek Central Authority and Greek Court are highly likely to return him to Australia.
The level of likelihood that N will be returned has been increased because, in response to comments I made while the stay was being argued, on 11 October 2010 the mother executed a formal undertaking to the Court to return N in the event that the Full Court decides the father’s appeal in his favour. This undertaking was filed on the day it was made. It can be used in Greece and a Greek court can be expected to be influenced by it in a return application.
To a substantial extent, I have already dealt with the matters which will determine the balance of convenience. Although the agreement between the parties over payment toward the mother’s cost of living in Australia will overcome some of the financial hardship she would otherwise have had, the mother will remain largely isolated from her emotional support base. She will still be a stranger here living virtually alone and still beholden to the charity of her uncle and cousin with whom she lives in Australia. Except for the uncle and cousin, there is no suggestion she has any friends or close family here. As the life she lived in Greece very largely involved family and friends and she is still very young and, to me, seemed relatively immature, I regard what would in effect be an enforced stay in Australia pending appeal and determination of the issue of N’s habitual residence to be likely to be a considerable hardship for her.
As the father has lived and worked in Greece, has close relatives and an available home and car there, if he chooses to follow N to Greece pending the appeal and relevant decisions and, in any assessment, is not as immature, sensitive or as emotionally vulnerable as the mother, to be in effect forced to live in Greece will not be as great a hardship to him if he decides to return as remaining here for other than a short time will be to the mother. Of course, if he decides not to follow N to Greece in the event that I refuse a stay, his hardship will be limited to self-imposed distancing from N. As he worked as a courier for his brother-in-law in Greece, one would expect him to be able to regain this employment there.
Overall, the balance of convenience favours refusal of a stay if the delay in determining the appeal and determination of habitual residence is likely to be significant. If the appeal is not listed for hearing before 10 December 2010 the delay will be significant.
The father’s first two grounds of appeal are dependent on overturning my finding of fact which were based on the unique advantage I had in deciding who, as between the mother and father, was the more credible witness by being present when they gave oral evidence and being able to weigh the impressions I had of them, their affidavit evidence, their oral evidence and the objective and subjective documentary evidence. The content of some of the father’s affidavit evidence and oral evidence was inconsistent. His affidavit and oral evidence about a consignment note must have been, to the father’s knowledge, untrue. This consignment note was translated. Other similar consignment notes were partly in English. In the instances where the notes were partly in Greek and partly in English they could be compared with the fully translated note and could be sufficiently understood for relevant purposes.
The result of believing the mother over the father was the finding that there had been no change in habitual residence from Greece. If I had not believed the mother, as I did not believe the father, the result would have been the same because there would have been no acceptable evidence to permit the Court to say that there had been any change from the acknowledged fact that until N left Greece he had been habitually resident there. There was no real prospect that failure to believe the mother would have moved me to believe the father. The impression he gave me that he lacked credit was quite strong.
I was informed on behalf of the father that the appeal on the issue of his credit will largely be dependent on an application to file three fresh affidavits. I do not accept that any evidence which will be from the father’s father, mother and sister would overcome the clear objective evidence of the father’s lack of credit comprised by the consignment notes. I relied on this evidence although there was plenty of other material which made me find against the father on credit.
One of the fresh affidavits, from the father’s mother, was sworn on 27 November 2009, in the Federal Magistrates Court of Australia form. It bears the file number of the proceedings in which the orders of 4 December 2009 were made. The copy which is before me does not bear any indication that it was filed in those proceedings. I was told by Ms Boyle, Counsel appearing for the father on the stay application, that she did not know whether or not it had been filed in the Federal Magistrates Court. It could not be said to have been unavailable to the father at the Hague Convention hearing before me. This is despite the claim that Counsel who then appeared, Mr Cook, possibly might have failed to rely on it because he overlooked it. The suggestion that Mr Cook might have overlooked this affidavit was not based on any contact about it with Mr Cook and is nothing but baseless speculation. In any event, the father had solicitors at the Hague Convention hearing (not his present solicitors). Could it be suggested that the solicitor who witnessed the affidavit and the any other solicitors in the firm who acted for the father up to the Hague convention hearing did not know of and/or overlooked this affidavit? I do not think that this is a realistic possibility.
The other two fresh affidavits which the father now says he will seek to rely on at the hearing of the appeal are from the father’s father and his sister who lives in Greece. I was not told what they would say which might support the father’s version of events. I was told that because of the very recent engagement of the father’s present counsel, she could not tell me what evidence they may give. As both these prospective deponents are mentioned in the father’s and mother’s evidence at the hearing and their existence must have been known to Counsel then acting for the father as well as to the solicitors acting for the father, at the principal hearing anything they could now say of relevance could have been said by affidavit in the original hearing. It would be erroneous to believe that there is likely to be some evidence they could give which, if admitted, is likely to make the Court think my finding against the father’s credit is unsafe when not even the father’s current counsel, and presumably his current solicitors, know of anything specific. There is no reason for any assumption that the father’s previous counsel and solicitors overlooked such evidence. That Mr Cook is a very experienced and exceptionally competent barrister leads to the likelihood that the case was conducted without inadvertent error of the nature suggested and that what the father is now attempting to do by his appeal is to conduct the proceedings using a different approach now that the approach he chose did not succeed. I do not regard it as other than remotely possible that the Full Court will admit fresh evidence on the appeal.
The second ground of appeal is implicitly to the effect that evidence which I relied on was erroneously admitted over the father’s objection. The evidence said to have been erroneously relied on, rather than erroneously admitted into evidence, is in reply to the father’s claim that evidence relied on by the Director General, being Annexure “A” to the mother’s affidavit of 29 January 2010, and admitted as evidence without objection by the father had a specific meaning which refuted the claim the mother made in her affidavit to the effect that it supported an intention in the parents to be travelling to Australia for a holiday.
Annexure “A” is a consignment note for some tyres. The mother said these tyres where purchased for the vehicle owned by the father’s father, which the father drove in Greece. She argued that these tyres would not have been purchased if the mother and father were not intending to return to Greece. The father attempted to refute this claim by giving evidence that a stamp on the consignment note showed that the tyres were purchased for another vehicle. The Director General then tendered a small bundle of consignment notes which were in Greek and English which had the same stamp on each. All except one of the bundle can be seen to be for entirely different tyres, so the stamp could not be there to signify the number plate of the vehicle to which the tyres were fitted. The father must, therefore, have fabricated the claim that the stamp on the consignment note originally relied on was for a vehicle other than his father’s.
I cannot understand how the bundle of additional consignment notes could be regarded as inadmissible even though they were not fully translated. They only need be examined superficially to see their relevance. More careful examination clearly shows that they fully answer the father’s claim about the stamp on the original consignment note.
I hold the strong view that the first two grounds of appeal are exceptionally weak and are likely to fail. The third ground of appeal is in my opinion even weaker. It is that, because of the passage of time between the hearing and the decision, the findings on the father’s credit are unsafe. There is no suggestion in the appeal that there has been any erroneous finding of fact or failure to consider a significant fact. That the father failed to satisfy me at the hearing of his credit and actually satisfied me of his lack of credit is not a matter which is in any way difficult to recall. That analysis of the content of the evidence he gave both orally and in his affidavit also led me to the same conclusion. In the instance involving the stamp on the consignment note, the evidence could lead to no conclusion other than against his credit. These aspects make this ground even weaker, in my assessment, than the other two.
A weighing of the above considerations leads me to the clear conclusion that this is an instance where an application for a stay pending appeal should be granted if the appeal can be heard on or before 10 December 2010. Because of this I shall make an order which accords with this conclusion; that is, I shall grant a stay until 5pm on 10 December 2010. According to my enquiries, if the delay in hearing the appeal is longer than this it will, because of the Christmas break, be considerably longer before the appeal is heard; at least until February 2011. I would have refused to grant the stay if I had not confirmed the appeal would be heard in early December 2010. If it is not listed for hearing on or before 10 December 2010 the situation will be such that the delay in hearing the appeal warrants the refusal of a stay so that the mother can return with N and does not have to return him unless or until the Full Court decides she should. The stay should be discharged if the father does not make any of the payments he has agreed to make. Life will be too difficult for the mother for it to be acceptable that she be, in effect, kept in Australia if the agreement is not met strictly.
I shall make orders which are in accord with the above and reserve costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on
14 October 2010.
Associate:
Date: 14 October 2010
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