OTHONOS and COSTA-OTHONOS

[2021] FCWA 142

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: OTHONOS and COSTA-OTHONOS [2021] FCWA 142

CORAM: TYSON J

HEARD: 6 JULY 2021

DELIVERED : 4 AUGUST 2021

FILE NO/S: PTW 9394 of 2019

BETWEEN: MR OTHONOS

Applicant

AND

MS COSTA-OTHONOS

Respondent

Catchwords:

FAMILY LAW - INJUNCTIONS - Person protection - Where the husband engaged a licensed private investigator to conduct surveillance on the wife - Where there is a dispute as to the wife's health and whether it impacts upon her capacity to work - Where a Single Expert Witness has been retained to provide a report on the wife's health, who has received the surveillance report - Where the wife has been diagnosed with Post-Traumatic Stress Disorder - Where the evidence of the wife and her treating psychologist is that the fear of ongoing surveillance is exacerbating her mental health - Injunction against further surveillance made on a without admission basis - Injunction restraining the husband from molesting, abusing or harassing the wife declined - Case turns on its own facts

Legislation:

Commercial Agents and Private Inquiry Agents Act 2004 (NSW)
Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Moser
Respondent	:	Mr Hedges SC

Solicitors:

Applicant	:	Crossing Family Lawyers
Respondent	:	O'Sullivan Davies

Case(s) referred to in decision(s):

Kemsley and Kemsley (1984) FLC 91-567

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Othonos & Costa-Othonos has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1[Mr Othonos] (“[the husband]”) and [Ms Costa-Othonos] (“[the wife]”) married in 2017 and separated in 2019. Since separation, the husband and the wife have been unable to resolve financial issues, which are now programmed for a Readiness Hearing in September 2021.

2The wife seeks[1] an injunction restraining the husband from “abusing, harassing or molesting [her] or interfering with her manner of living or attempting to do so”. She initially sought an injunction restraining the husband “from undertaking surveillance or monitoring of [her] in any form”, which she subsequently amended to include “any direct or indirect involvement in causing any individual to undertake any surveillance or monitoring of [her] in any form”. The husband seeks the wife’s application be dismissed.[2]

[1] Application in Case filed 30 April 2021, as amended by Senior Counsel during the hearing.

[2] Response to an Application filed 25 May 2021.

3The wife relies upon her affidavit filed 23 April 2021, paragraphs 33 to 59 of her affidavit filed 29 January 2020, paragraph 64 to 68, Annexure A, and paragraphs 81 and 87 of the husband’s affidavit filed 29 September 2020, together with the affidavit of [Ms A] filed 23 April 2021. The husband relies on his affidavit filed 25 May 2021, together with paragraphs 77 to 102 of his affidavit filed 29 September 2020.

4The husband’s counsel raised an objection to paragraphs 13 to 15 of the wife’s affidavit. I attach no weight to those paragraphs, which are inadmissible. I have otherwise read and carefully considered all of the evidence relied upon. Because these are interim proceedings, I am unable to make any findings of fact, where the evidence is in dispute. That will be the task of the trial judge. As will become apparent, there are significant factual issues in dispute between the parties, including the property available for division, the respective contributions of each party, the wife’s health and whether it impacts upon her capacity to work, amongst other matters.

BASIC BACKGROUND FACTS

5The husband is 72 years of age and is retired. He lives in Perth. According to the husband’s financial statement, his gross weekly income is $46,852 and he has an interest in property worth approximately $270,500,000.

6The wife is 58 years of age. She is a qualified [holistic health practitioner], who lives in New South Wales. The wife is not working and is a full-time homemaker. According to the wife’s financial statement, her gross weekly income is $650 and she has net assets to the value of approximately $3,500,000.

7Pursuant to interim orders made on 22 March 2021, the husband is required to pay to the wife $7,500 per week by way of maintenance, and $298,000, which is to be characterised by the trial judge. The husband has filed a Notice of Appeal against those interim orders. The appeal has been heard, and judgement has been reserved.

8The wife and the husband commenced cohabitation in 2017 and married on either [late March] 2017,[3] [mid-March] 2017[4] or [late April] 2017.[5] The parties’ separated [in] October 2019 on a final basis.

[3] According to the husband’s Initiating Application filed 6 December 2019.

[4] According to the wife’s Affidavit filed 5 February 2020.

[5] According to the marriage certificate, which confirms the parties were married in [Place A].

9In March 2019, the parties began to spend less time together and the marriage was in difficulty. On the husband’s case, between March and October 2019, they only spent around 15 nights together, over three separate occasions.

10There is some controversy about the value of property owned by the husband, at the commencement of cohabitation, and currently. The wife says the husband has assets to the tune of $600,000,000, which is more than double what the husband estimates his net property to be worth. What is not in dispute, is that at the commencement of the relationship, the husband was a man of significant wealth, created prior to the parties’ relationship, and he was in a vastly superior financial position than the wife.

11[In] May 2017, a door fell on the wife at the parties’ home. On the wife’s case, she sustained significant injuries, which have caused permanent physical disabilities, neurological problems and which continue to cause her ongoing pain and difficulties, which require ongoing medical treatment.

12The wife deposes that she suffers from Post-Traumatic Stress Disorder, a mild traumatic brain injury, frequent headaches and migraines. She says she requires ankle surgery. She has difficulty attending to day-to-day tasks. She experiences visual disturbance, memory impairment, difficulty with her vocabulary and speaking, depression, anxiety and stress. She has filed reports from a number of her treating health practitioners, including [Dr B], a senior clinical neuropsychologist, [Mr C], an occupational therapist and [Mr D], a naturopath.

13The husband does not accept that the wife suffered serious injuries as she claims, or that she continues to experience poor health. The husband says much of the medical treatment which the wife wishes to pursue are alternative and elective therapies, which are not essential.

14Prior to the parties’ marriage, the wife was diagnosed with [cancer] and underwent surgery. Her cancer is in remission but requires ongoing monitoring.

15As a consequence of the dispute about the wife’s health and whether it impacts on her current and future income earning capacity, the parties jointly instructed [Dr E], an occupational physician, as a Single Expert Witness.

16Dr E’s report, has been filed with his affidavit on 29 September 2020. Dr E assessed the wife, and received a number of agreed documents, including surveillance conducted on the husband’s instructions. Dr E set out a summary of the wife’s medical conditions, his review of documents in support of her injuries and medical conditions, as well as the wife’s self-assessment.

17Dr E opined that the wife’s medical conditions, both physical and mental, impacted upon her capacity to work as a holistic health practitioner, and she was unable to engage in paid employment in those roles. He deposed that the wife’s conditions appeared to be chronic, which required ongoing management without improvement or recovery, and her prognosis was poor. However, he considered that the wife’s PTSD could improve in the future, subject to ongoing management.

18The husband does not accept Dr E’s report.

WHAT IS THE WIFE’S CASE?

19The wife maintains that the husband behaved in an abusive, violent and aggressive manner towards her during the marriage. The husband admitted, in February 2020, to instructing his solicitors to retain [Private Investigator A], to undertake surveillance of her. The report of [Mr F] confirms he conducted surveillance of the wife on 25, 27 and 28 February and on 2 and 3 March 2020.[6]

[6] Paragraph 65, the husband’s affidavit filed 29 September 2020.

20The wife says it is unnecessary for the husband to arrange surveillance, when her medical specialists, as well as the Single Expert Witness, are available to give evidence about her health and capacity to work.

21Since mid-January 2021, the wife has observed various motor vehicles parked outside of her home, out of sight of her security cameras, which have caused her concerns about her safety. She lives in a quiet, secluded street.

22On 16 January 2021, the wife saw a woman, who “appeared to be taking photographs or videoing me with a camera phone. When I asked if the woman was photographing me, she did not deny it”.

23The wife says she feels intimidated by the presence of people “not known to me loitering outside my house and remain concerned that the husband has caused those people to be present”. She asserts their presence is affecting her mental health, has caused her to suffer an increase in anxiety, panic attacks and difficulty sleeping. The wife relies on a report from her treating psychologist [Dr G] dated 29 March 2021, which states “the fear of the existence of surveillance certainly exacerbates these symptoms”.

24The wife says she no longer feels safe in her own home and she feels increasingly depressed, which she attributes to the sense of ongoing monitoring.

25The wife’s solicitors wrote to the husband’s solicitors in January 2021, raising her concerns and asking whether the husband had caused her to be the subject of ongoing surveillance. They asked whether the husband would provide an undertaking, not to do so. In February 2021, the husband’s solicitors denied that he had engaged in the conduct complained of, and declined to provide an undertaking. Further correspondence between the parties’ respective solicitors failed to resolve the issue.

26The wife also relies on the affidavit of her neighbour Ms A, who deposes to having seen a man sitting in a car outside her home in late 2020, with a laptop, which she found to be “odd”. Her evidence was of little probative value.

WHAT IS THE HUSBAND’S CASE?

27The husband denies ever acting in a manner that was abusive, violent or aggressive towards the wife. It is his case that the wife behaved in an abusive manner towards him during their relationship.

28The husband denies ever molesting the wife and he denies having interfered with the wife’s way of living. Since separation the husband has continued to live in Western Australia, while the wife has remained in New South Wales. Since October 2019, the only contact between the parties has been through solicitors.

29The husband acknowledges he instructed his solicitors to engage a licensed private investigator to conduct surveillance, which has been disclosed. He denies the surveillance has in any way interfered with the wife’s lifestyle. The husband disputes that the wife suffers from significant impairments which prevent her from exercising an income earning capacity, which will be an issue for determination at trial.

30The husband says it is appropriate that he can lead evidence about the wife’s alleged health. He intends to challenge the report of the Single Expert Witness. He asserts Dr E has accepted the wife’s claims of incapacity without a proper assessment, and she failed to disclose that she had [engaged in a recreational sporting activity] in the week prior to her assessment. He has no knowledge of the wife’s complaints about various motor vehicles being parked outside her home, or those made by Ms A, whom he does not know.

31The husband says the road the wife lives on has a lookout at the end of the street, which is a popular spot for tourists to come and take photographs of the views. The husband has no knowledge about the claims made by the wife in terms of cars being parked outside her home in January 2021, or the woman whom the wife believes was photographing her.

Surveillance

32In the husband’s affidavit filed 29 September 2020, he deposed that as a consequence of the wife’s claims, in February 2020 he instructed his solicitors to engage Private Investigators A to undertake surveillance of the wife in her day-to-day activities. His solicitors retained Mr F, who is a licensed private inquiry agent. Mr F has provided his license number.

33Mr F undertook surveillance on 25, 27 and 28 February 2020, and 2 and 3 March 2020. During the surveillance, he took video footage of the wife in public places and “none of the footage was of [the wife] engaged in any kind of private activity”.[7]

[7] Paragraph 7(c) of the husband’s affidavit filed 25 March 2020.

34Mr F’s report, dated 21 March 2020, is Annexure A to the husband’s affidavit. The report notes that the wife was the subject of the surveillance, conducted over five days. Mr F recorded 36.2 minutes of surveillance in total. A USB with the video footage has been provided.

35In summary, the report refers to observations of the wife outside of her home, including walking a dog, driving, attending her solicitors’ office, a coffee shop, and shopping centre.

WHAT IS THE LAW?

36Section 114 of the Family Law Act 1975 (Cth) provides that a court may make such order or grant such injunction as it considers proper. In considering whether to grant an injunction, the Court has a wide discretion, and may grant an injunction where it is just or convenient to do so (s 114(3)), unconditionally or upon such terms and conditions as the Court considers appropriate.

37Senior Counsel for the wife was unable to direct the Court to any authorities, in support of the injunctions he sought, to restrain surveillance have been granted. However, there was no dispute that the Court had the power to grant the injunctions, pursuant to s 114(1)(a) being for the personal protection of a party to the marriage.

38The Full Court of the Family Court of Australia has confirmed that the phrase “personal protection” should be construed widely, and is not limited to the physical protection of a party, but includes protections to safeguard a party’s mental or emotional well-being.[8]

CONCLUSIONS

[8] See Kemsley and Kemsley (1984) FLC 91-567, at 79,590.

39I decline to grant the injunction sought by the wife in terms of paragraph 2(a) of her application.

40The wife has not established that since separation, the husband has behaved in a manner which could be characterised as abusive, harassing or molesting her, or interfering with her manner of living or attempting to do so. There is a significant dispute between the parties about whether the husband has committed acts of family violence against the wife during the marriage. I am unable to make any findings about these matters, on an interim basis.

41The husband denies that he has abused, harassed or molested the wife, or interfered in her manner of living.

42The parties have been separated since October 2019. They remain geographically separated, and they have not had any direct contact with one another, for over two years.

43The wife has not led any evidence to support her claim that since separation, the husband has behaved in the manner which she now seeks protection from. Apart from the wife’s complaint about surveillance, she makes no other criticism about his behaviour.

44I do not accept the submissions of the wife’s Senior Counsel, that the surveillance conducted amounts to stalking. There is no admissible evidence to support such a finding.

45In New South Wales, the Commercial Agents and Private Inquiry Agents Act 2004 (NSW), (“Commercial Agents Act”) governs the conduct of commercial agents. The objects of the Commercial Agents Act[9] are the protection of the public in relation to commercial and private inquiry agent activities and the establishment of relevant standards, including for surveillance by licensed providers. The Commercial Agents Act makes it an offence for any person to carry out any commercial activity or private inquiry activities, without an operator license[10] and there are penalties for doing so, including imprisonment.[11] Section 25 of the Commercial Agents Act specifically prevents a licensee from harassing a subject, including visiting any premises with “unreasonable frequency or at unreasonable times”.[12]

[9] Section 3.

[10] Sections 5 and 11 Commercial Agents Act.

[11] Section 5(1) and 11(1) Commercial Agents Act.

[12] Section 25(1)(c) Commercial Agents Act.

46The surveillance of the wife has been conducted by a qualified person, in public locations. There is no evidence to suggest the surveillance conducted by Mr F contravened the Commercial Agents Act. The Commercial Agents Act clearly establishes that, subject to meeting the requirements contained in the legislation, surveillance is lawful.

47There is nothing in the available evidence to suggest that the husband has interfered with the wife’s lifestyle. I accept the criticism made by the husband’s counsel, that the reference in Dr G’s report to the wife’s “privacy within her own home” being invaded, contradicts the wife’s own evidence, together with the report of Mr F. The surveillance occurred in public places, outside of the wife’s home.

48I am not satisfied it is an appropriate exercise of discretion to grant the injunction as sought.

49Taking into account the wide discretion conferred on the Court, I am satisfied and consider it appropriate to exercise my discretion to grant an injunction, on an interim basis, without admission as to need, restraining the husband from causing any individual or organisation to undertake further surveillance or monitoring of the wife, for the following reasons:

(a)The wife has been diagnosed with PTSD, as acknowledged by Dr E. While his evidence is untested, it is independent and objective evidence, upon which I attach weight. She remains under the care of her treating psychologist, Dr G. The wife’s unchallenged evidence, corroborated by Dr G, is that the wife’s concerns about being the subject of ongoing surveillance has caused her to suffer from heightened levels of anxiety and distress, and the fear of surveillance exacerbates her symptoms. In these circumstances, I am satisfied that the injunction is reasonably necessary to protect the wife’s mental health. The fact the wife did not raise these complaints previously, having been on notice of the surveillance since last year, does not diminish the evidence, about the impact the feared surveillance is having on the wife’s state of health. The evidence, which is not contradicted, is that the wife’s diagnosed mental health difficulties are being exacerbated by the fear that she is subjected to ongoing surveillance.

(b)I am unable to make any findings as to whether the cars and person whom the wife says she has seen outside her home, have been conducting surveillance of her and if so, at whose direction, given the disputed evidence. The wife does not accept the husband’s denial. She considers that the husband’s evidence has been carefully crafted. The husband deposed he had not “had any involvement with anyone who might have acted as described”, which the wife says leaves open the possibility that the husband has instructed his solicitor to retain an agent, to conduct ongoing surveillance. The husband’s counsel disputes that characterisation and says the husband’s denial is clear and unqualified.

(c)Given the wife’s health, the previous surveillance conducted, the husband’s refusal to provide an undertaking not to conduct ongoing surveillance, and the wife’s concerns about the nature of the husband’s denial, I accept that she is experiencing increased anxiety and distress, which supports the granting of the injunction in the terms I propose.

(d)The husband has denied involvement in any ongoing surveillance of the wife. It is difficult to see in those circumstances, how the injunction is prejudicial to him.

(e)I do not accept the submissions made by the husband’s counsel, that to grant the injunction effectively prevents the husband from running his case as he sees fit, including limited his ability to challenge her claims in terms of her health, and the evidence of the Single Expert Witness. The husband has already obtained a surveillance report, which has been provided to Dr E. The husband will have the ability to test the evidence of all of the witnesses by way of cross-examination at trial, including Dr E and any of the medical practitioners upon whom the wife may rely. In the event that the husband wishes to arrange further surveillance, it is open to him to bring an application, seeking to discharge or vary the injunction I propose to grant, with evidence in support of his application. The wife will then have the opportunity to respond, and the matter can be further considered. There is nothing to prevent the husband from filing any further affidavit material upon which he seeks to rely in support of his case, given the impending Readiness Hearing.

(f)For the reasons already set out, I am not satisfied that the surveillance previously conducted was either unlawful or improper. I accept that the husband was entitled to obtain surveillance, in circumstances where he sought to gather evidence and challenge the evidence about the wife’s health.

50I consider the order I propose to be proper and just in the circumstances, and reasonable for the personal protection of the wife.

PROPOSED ORDERS

51Subject to hearing from the parties as to the form of the orders only, I propose to pronounce orders as follows:

1.Until further order, without admission as to need, the Applicant be restrained by an injunction and an injunction is granted restraining the Applicant from causing any individual or organisation to undertake surveillance or monitoring of the Respondent.

2.The Applicant’s Form 2 filed 23 March 2021 and the Respondent’s Form 2A filed 25 May 2021 be and are hereby dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

4 AUGUST 2021