State Central Authority and Papastavrou (No. 2)

[2008] FamCA 1219

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & PAPASTAVROU (NO. 2) [2008] FamCA 1219

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Adjournment to gather further evidence

APPLICANT: State Central Authority

RESPONDENT: Ms Papastavrou

FILE NUMBER: MLC 3203 of 2008

DATE DELIVERED: 11 JULY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 11 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P.D. Sweeney

SOLICITOR FOR THE APPLICANT:

State Central Authority

Secretary to the Department of Human Services

COUNSEL FOR THE RESPONDENT: Ms O. Nikou SC, with Mr A.I. Strum

SOLICITOR FOR THE RESPONDENT: Nicholes Family Lawyers

Orders

1. That leave is granted to the applicant State Central Authority to make oral application for an adjournment.

2. That the extant proceedings be adjourned for further hearing before the Honourable Justice Bennett on 11 August 2008 at 10.00 am AND IT IS NOTED that the applicant State Central Authority has no objection to the respondent reopening her case on the adjourned date.

3. That in anticipation of the further hearing date and the final determination of this matter:-

   a)The applicant file and serve any further affidavit material or proofs of evidence upon which it relies by not later than 12.00 noon on 28 July 2008; and

   b)The respondent file and serve any further affidavit material or proofs of evidence upon which she relies by not later than 12.00 noon on 5 August 2008.

4. That the question of costs of this day be reserved.

5. That a transcript of the reasons for judgment given this day be transcribed and a copy be provided to each of the parties to the proceedings.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Papastavrou is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3203 of 2008

STATE CENTRAL AUTHORITY

Applicant

And

MS PAPASTAVROU

Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant, State Central Authority, seeks an adjournment of the proceedings for a period of seven days to enable it to obtain and file further evidence in these proceedings under four categories: 

   a.   first, the ability of the wife to obtain an order for her personal protection in a domestic violence sense, which is variously referred to in material before the court but may properly be referred to as an ex officio order under provisions of the relevant civil code in Greece;

   b.   second, evidence to address the question of whether the police in Greece are enforcing laws and the rights of parties covered by such orders;

   c.   third, in the event that the mother could obtain a personal protection order such as I have referred to, the time it would take her to obtain such an order;

   d.   fourth, the disposition of criminal charges which it appears the mother faces as a consequence of her having removed the children S, who is nine years of age, and E, who is five years of age, from Greece.

2. The adjournment was sought following the respondent having closed her case.  In line with the authorities, the respondent's case was conducted in a summary fashion.  There was no viva voce evidence and there was reliance on affidavits and submissions.  Following that and at the commencement of the case of the applicant, State Central Authority, it was indicated that they had "steps in train" to obtain further information or evidence.  It became apparent that what was being sought was an adjournment in which to seek further evidence to be filed.

3. The adjournment is sought on the basis that within the last seven days, the issues as the applicant appreciated them to be, have changed.  It is agreed or conceded by the applicant that when the respondent mother filed her answer and response, she indicated that she did not regard Greece as a jurisdiction which could afford her appropriate protection against domestic violence.  There are a number of paragraphs of her answer and cross-application filed 29 April 2008 relevant to this particular point, but in paragraph 22 she deposes:

   I advised the police that I was very afraid that if I [got them to talk to the husband or change the locks to the family home] it would simply aggravate the situation and the husband would come after me again.  The police suggested that I should report this domestic violence if it recurred.  I have no confidence in the way in which the local authorities can protect me or the children in respect of being exposed to repeated domestic violence.  The response I have had from the enforcement officers has led me to believe that there is not an adequate system to protect myself or the children from significant harm in Greece.

4. In preparation of this matter for trial I made various directions on 28 April 2008.  Those directions included order 6(b), which provided that by not later than 12 noon on 9 May 2008 the respondent mother file and serve any further affidavits or proofs of evidence, including expert evidence, upon which she relies in support of her opposition to the application by the State Central Authority.

5. In May 2008 the respondent mother filed and served a written opinion by a deputy professor of civil law in Greece, Theofano Papazisis.  That opinion is annexed to an affidavit by an interpreter filed on 2 July 2008, but it is common ground that the opinion itself was provided much earlier and in May 2008.  The opinion is relied upon as an expert opinion.  It discusses various laws in force in Greece in relation to domestic violence.  It refers to legislation as recently enacted in Greece as 2006, directed to domestic violence and the protection of victims of domestic violence by both orders and other measures such as domestic violence centres, education of the public and educational responsibilities of the police forces.

6. Toward the end of the report it deals with the practice by police and the courts, and the author opines as follows:

   The Combating of Domestic Violence Act is a recent law.  It was passed on 24 October 2006 and was enacted three months later.  It is true that the police aren't properly informed on its existence.

   The provision in the act that imposes an ex officio indictment against the offence has caused a reaction to the police, because it creates more responsibilities for them.  But irrespective of this, Greek police stations don't have the required number of staff:  a fact that causes many delays and inappropriate exercise of duties. 

   However, the situation with the judicial authorities isn't any better.  The law suits are really heard approximately two years later.  Only flagrante delicto cases are tried straight away.

7. The ex officio indictments, or protection orders as we have referred to them in these proceedings, are described earlier in the opinion as being orders which can be made whilst there are pending criminal proceedings or pending mediation, for an alleged perpetrator to stay away from an area where a victim of domestic violence lives, including having the perpetrator removed from the family home.

8. In addition to that evidence, on Monday of this week - being 7 July 2008 - the respondent mother filed further expert evidence.  That was the affidavit of Demetrios Papaphilippou, who is a practitioner - as opposed to an academic - who deposes that he specialises as a practitioner in family law.  He expresses an inconclusive view about the status of criminal proceedings taken against the wife as a consequence of her removing the children from Greece, but says that penalties for the sort of offence that he understands it to be involve incarceration of the wife.  Relevantly, at paragraph 9 he deposes:

   From my practical experience there are inherent problems with the enforcement of laws against domestic violence in Greece.  Given my knowledge of our criminal and family violence legal system, it would be most unlikely that the system could protect a woman or children who historically have been subjected to domestic violence against future assault.  Proceedings under the Domestic Violence Act take on an average two years to prosecute.  In the meantime, victims of family violence cannot be protected.  Even when orders are made, as the professor refers to in her statement, the police are ill equipped to enforce those orders.

9. On 9 July 2008 the applicant, State Central Authority, filed an affidavit to which was annexed a communication from the Greek Central Authority, including the translation of part of a pamphlet issued by the government in relation to the new domestic violence laws in force in Greece.  It has been agreed or conceded that pages 2 and 3 of the translation of the pamphlet describe in accurate terms the nature of the domestic violence legislation, particularly when read together with part of Prof Papazisis's opinion in relation to chapter 4 of the legislation.

10. In response to that material, the respondent mother sought and obtained leave this morning to file a further affidavit by Mr Papaphilippou.  I refer to it as an affidavit, not withstanding that the jurat is incomplete.  The State Central Authority forewent any argument about that technicality and accepts it as evidence.  It refers to the translation of the pamphlet relied upon by the State Central Authority, and at paragraphs 5, 6 and 7 he deposes:

    In relation to the reforms promoted in the brochure, I say that the reality of the situation bears little resemblance to the intentions and promises expressed therein.  It is my experience that the legislative measures against domestic violence and representations made by the government in the brochure have not been matched by the funding required to give effect thereto.  Further, the brochure annexed to Ms Porritt's brochure has not been translated in its entirety.  The last page of the brochure has not been translated at all.  There the (now former) minister for justice expressed shock at the level of domestic violence in Greece, which is reported by the minister to occur in one in four families.

11. It is in response to Mr Papaphilippou's evidence that the applicant, State Central Authority, now seeks an adjournment to obtain evidence of its own.  I should probably have made clear at the outset that the applicant does not have the running of the case, it having been determined early on and consented to by both parties that as the regulations are appropriately engaged in relation to these two children, the case relates only to the applicability of exceptions to mandatory return.  The respondent mother has the carriage of the case, and the case of the applicant, State Central Authority, follows the respondent’s case.

12. The applicant opposes the adjournment application, as she does any further opportunity being given to the State Central Authority to adduce further evidence. 

13. It is submitted on behalf of the respondent wife that the State Central Authority were aware of all relevant issues on 28 April 2008 insofar as the mother then alleged that she had no confidence in the Greek police system to protect her against domestic violence, and that the evidence of Prof Papazisis filed on 12 May 2008 included a discussion that whilst certain legislation had been passed, it was not being appropriately implemented.  I have extracted those parts of that opinion above at paragraph six of these reasons.

14. In explanation of why further affidavit material by Mr Papaphilippou was filed on Monday and then again this morning, the court was informed that his evidence was to provide a different perspective and that of a practitioner rather than an academic.  It was to provide a second source of expert evidence, and I think it is fair to say it was also to deal with the implications of criminal proceedings that the wife now faces.  The respondent has conducted her case in reliance on that evidence.

15. I inquired as to the prejudice which it is said that the mother will suffer if I grant the adjournment sought.  I was informed that the major prejudice will be as to costs.  The mother has filed a financial statement, and my recollection of reading that statement is that she is without funds or any means of support.  She does not even draw a social security pension from the Australian government. 

16. The balance of the submissions, although put in relation to prejudice, were in my view really observations about the respective capacity of parties to obtain evidence and put it before the court; and were observations that the mother has done all that she could possibly do to put evidence before the court, but the State Central Authority - who it would appear have not done all that they could do - ought not now have an opportunity to fix up their case.

17. The secondary argument in relation to prejudice, but one which I accept as being important, is that the case is now commenced and the mother faces the reality - even more so than early in the proceedings - of the children possibly being returned to Greece.  Her case is clear that if they are returned she will return with them.  It is put that six or seven days' adjournment is six or seven days of stress to her at an intolerable level, and in fact even one day would be too much stress.  I certainly take the emotional toll of these proceedings into account in relation to the mother, as I do the costs.

18. In relation to costs, the State Central Authority indicated that they could be looked at on the adjourned date.  When pressed, it was conceded that they may avail themselves of an indemnity in relation to costs, and indeed the mother may not be able to recover costs thrown away. Costs really only becomes relevant in the event that these proceedings were capable of being concluded today.  I have grave doubts that that was ever to be the case.  I would have required counsel to attend for judgment, more likely than not.

19. The respondent mother through her counsel makes the point that these cases are to be dealt with summarily and as expeditiously as possible.  That means they are to be dealt with speedily, not hastily.  It does not require that a case such as this should be determined in the absence of relevant evidence which is said to be obtainable.  It doesn't mean in my view that each party shouldn't have some reasonable opportunity to obtain evidence. 

20. An adjournment application requires me to weight the interests of both parties against what the justice of the case requires. That is, what is in the interests of justice?

21. It seems to me that the issue of the adequacy of the implementation of domestic violence law was a matter raised in the expert evidence that was available to all parties in May 2008.  However, I am satisfied that it was not articulated in terms of that contracting state’s inability or unwillingness to implement the law until today.  That is an issue about which I think the State Central Authority should be given an opportunity to obtain some evidence if it can.

22. In those circumstances I will grant the adjournment.  It is not possible to grant it for the seven days sought, but I'll hear from counsel as to when the matter can be brought on again. Time remains of the essence but, I am satisfied, that any delay is unlikely to advantage the applicant State Central Authority.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  27 October 2008