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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading OTHONOS and COSTA-OTHONOS

Details

AGLC: OTHONOS and COSTA-OTHONOS [2021] FCWA 142
Case: [2021] FCWA 142
Decision Date: 4 AUGUST 2021

CaseChat Overview and Summary

In the Family Court of Australia, Othonos v Costa-Othonos was a case that focused on the issuance of injunctions for personal protection. The husband, Othonos, had employed a licensed private investigator to conduct surveillance on his wife, Costa-Othonos, amid disputes regarding her health and its effect on her ability to work. A Single Expert Witness, who had access to the surveillance report, was retained to provide a comprehensive report on the wife’s health. Costa-Othonos had been diagnosed with Post-Traumatic Stress Disorder, and the evidence presented indicated that the fear of ongoing surveillance was significantly worsening her mental health. The court had to decide on two main legal issues: whether to issue an injunction against further surveillance and whether to impose an injunction restraining the husband from molesting, abusing, or harassing the wife.

The court considered the evidence provided, including the wife’s testimony and that of her treating psychologist, who corroborated that the fear of ongoing surveillance was exacerbating her mental health condition. The husband argued that the surveillance was necessary for the resolution of the property settlement proceedings. However, the court found that the husband's actions were causing significant distress to the wife, leading to a decline in her mental health. The court emphasised the importance of protecting the wife’s mental health and well-being, and granted an injunction against further surveillance on a without admission basis. The court declined to impose an injunction restraining the husband from molesting, abusing, or harassing the wife, as it found the case to turn on its own unique facts.

The final orders of the court included a clear injunction against the husband engaging in any further surveillance activities concerning the wife. The court also outlined specific conditions to ensure that the wife’s privacy and mental health were protected. The injunction was granted without the husband admitting to any wrongdoing, reflecting the court’s emphasis on the wife's need for protection. The decision underscored the court's commitment to safeguarding the well-being of individuals involved in family law disputes, particularly when mental health is at stake.

Orders