Stavrou & Theodore

Case [2023] FedCFamC1F 977

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Stavrou & Theodore [2023] FedCFamC1F 977

File number: PAC 4644 of 2023
Judgment of: BRASCH J
Date of judgment: 6 November 2023
Catchwords: FAMILY LAW – CRITICAL INCIDENT LIST – Where father charged with a range of violent offences,  after entering the mother’s home in the early hours of the morning – Where father did not file any material in proceedings – Where father did not oppose orders for parental responsibility in the mother’s favour, for the child to live with her and Personal Protection Orders – Where father opposed an order to change the child’s name and orders for overseas travel without “someone” being given notice – Final orders made.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 60CC(2)(a), 60CC(3), 61DA, 65D(1), 65DAB

Cases cited:

Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949

Chapman & Palmer (1978) 4 Fam LR 462

Flanagan & Handcock (2001) FLC 93-074; [2000] FamCA 150

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Isles& Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Line & Line (1997) FLC 92-729

Loddington & Derringford (No 2) [2008] FamCA 925

M & B [2001] FamCA 894

Masson & Parsons (2019) 266 CLR 554; [2019] HCA 21

Re K (1994) FLC 92-461

Reynolds & Sherman (2015) FLC 93-659; [2015] FamCAFC 128

Rice & Asplund (1979) FLC 90-725

Scott & Scott (1994) FLC 92-457

Weissensteiner v The Queen (1993) 178 CLR 217

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance
Number of paragraphs: 87
Date of hearing: 6 November 2023
Place: Sydney
Solicitor for the Applicant: Watts McCray (NSW) Pty Ltd
The Respondent: Litigant in person

ORDERS

PAC 4644 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS STAVROU

Applicant
AND:

MR THEODORE

Respondent

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

6 NOVEMBER 2023

THE COURT ORDERS:

Parenting

1.That the mother has sole parental responsibility for all decisions concerning the care and welfare for PP born 2020 ("the child'), including but not limited to:

(a)Education (both current and future);

(b)Health and medical treatment;

(c)Change of name;

(d)Religion and culture; and

(e)Living arrangements.

2.That the child shall live with the Applicant mother.

3.That the child shall spend no time with, and have no communication with, the Respondent.

Personal Protection Injunctions - child

4.That, pursuant to s 68 of the Family Law Act 1975 (Cth), the Respondent (MR THEODORE born 1981) is hereby restrained by injunction for the personal protection of PP born 2020 ("the child') from:

(a)Contacting the child, either directly or indirectly, including via an agent or servant;

(b)Using any carriage service or social media to publish to, or interact via any social media application, any material or content concerning the child for any reason;

(c)Approaching the…

Continue reading Stavrou & Theodore

Sign in free to access the full text

Details
AGLC
Stavrou & Theodore [2023] FedCFamC1F 977
Case
[2023] FedCFamC1F 977
Decision Date

CaseChat Overview and Summary

In the case of Stavrou & Theodore, the matter was before the Federal Circuit and Family Court of Australia. The primary issue before the court was determining the allocation of parental responsibility and living arrangements for the child, PP, born in 2020. The father, Mr Theodore, was charged with a range of violent offences and had entered the mother's home in the early hours of the morning. The mother, Ms Stavrou, sought sole parental responsibility, for the child to live with her, and Personal Protection Orders against the father. The father did not file any material in the proceedings, nor did he oppose orders for parental responsibility in the mother's favour, for the child to live with her, and Personal Protection Orders. However, the father did oppose an order to change the child's name and orders for overseas travel without "someone" being given notice.

The court considered the legal principles applicable to the case, including the standard of proof on the balance of probabilities and the relevance of unchallenged evidence. The court noted that it was not necessary for the trial judge to refer to every piece of evidence or argument presented during the trial. The court also considered the additional considerations under section 60CC(3) of the Family Law Act 1975 (Cth), such as the child's views, the nature of the relationship between the child and each parent, and the extent to which each parent had taken or failed to take opportunities to participate in decision-making and spend time with the child.

In reaching its decision, the court found that the father did not have any form of application before it for any kind of time. The court considered the unchallenged evidence provided by the mother, which described a rudimentary relationship between the child and the father. The court also noted that the father had made sporadic payments to an account in the child's name but had not paid any actual child support. The court concluded that the mother should have sole parental responsibility for all decisions concerning the care and welfare of the child, including education, health and medical treatment, change of name, religion and culture, and living arrangements.

The court further ordered that the child shall live with the mother and spend no time with, and have no communication with, the father. Personal Protection Orders were also made for the protection of the child and the mother from the father, including restrictions on contact, social media use, and attending certain locations. The mother was granted sole authority to apply for an Australian travel document for the child and to change the child's name.

The final orders made by the court included provisions for parenting, personal protection injunctions for the child and the mother, dissemination of orders, and a change of name for the child. The court also noted that the particulars of the obligations created by these orders and the consequences of contravening them were set out in Annexure A and included in the orders.

Orders

Orders of the court

PAC 4644 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS STAVROU

Applicant

AND:

MR THEODORE

Respondent

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

6 NOVEMBER 2023

THE COURT ORDERS:

Parenting

1. That the mother has sole parental responsibility for all decisions concerning the care and welfare for PP born 2020 ("the child'), including but not limited to:

(a) Education (both current and future);

(b) Health and medical treatment;

(c) Change of name;

(d) Religion and culture; and

(e) Living arrangements.

2. That the child shall live with the Applicant mother.

3. That the child shall spend no time with, and have no communication with, the Respondent.

Personal Protection Injunctions - child

4. That, pursuant to s 68 of the Family Law Act 1975 (Cth), the Respondent (MR THEODORE born 1981) is hereby restrained by injunction for the personal protection of PP born 2020 ("the child') from:

(a) Contacting the child, either directly or indirectly, including via an agent or servant;

(b) Using any carriage service or social media to publish to, or interact via any social media application, any material or content concerning the child for any reason;

(c) Approaching the child, or remaining within 5 km of the child;

(d) Attending:

(i) BC School;

(ii) BD School;

(iii) Suburb O Hospital;

(iv) BE Medical Centre;

(v) BF School; or

(vi) BG Street, Suburb F in the state of New South Wales.

(e) Attending the child's home, or remaining within 5 km of the child's home;

(f) Entering or remaining in place/s where the child is receiving or attending to receive the benefit of medical or educational or other professional or other services, or from attempting to enter such place or place/s;

(g) Attempting to locate the child, or attempting to obtain information about the child's whereabouts, or residence;

(h) Taking possession of the child, or attempting to do so; and

(i) Instructing or requesting any other person to do any of the acts referred to in Orders 4.a to 4.h inclusive.

5. That the above Order 4 is an injunction order, inter alia, made for the personal protection of the child, and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Family Law Act 1975 (Cth).

Personal Protection Injunctions - adult

6. That pursuant to s 68 of the Family Law Act 1975 (Cth), the Respondent (MR THEODORE born in 1981) is hereby restrained by injunction for the personal protection of the Applicant, MS STAVROU born (1987) from:

(a) Contacting the Applicant, either directly or indirectly, including via an agent or servant;

(b) Using any carriage service or social media to publish to, or interact via any social media application, any material or content concerning the Applicant for any reason;

(c) Approaching the Applicant, or remaining within 5 km of the Applicant;

(d) Attending:

(i) BC School;

(ii) BD School;

(iii) Suburb O Hospital;

(iv) BE Medical Centre;

(v) BF School; or

(vi) BG Street, Suburb F in the state of New South Wales.

(e) Attending the Applicant's home and place/s of employment, or remaining within 5 km of the Applicant's home and place/s of employment;

(f) Entering or remaining in place/s where the Applicant is receiving or attending to receive the benefit of medical or educational or other professional or other services, or from attempting to enter such place or place/s;

(g) Attempting to locate the Applicant, or attempting to obtain information about the Applicant's whereabouts, or residence;

(h) Taking possession of the Applicant, or attempting to do so; and

(i) Instructing or requesting any other person to do any of the acts referred to in Orders 6.a to 6.h inclusive.

7. That the above Order 6 is an injunction order, inter alia, made for the personal protection of the Applicant, and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Family Law Act 1975 (Cth).

8. Pursuant to s 11 (1)(b) of the Australian Passports Act 2005 (Cth), the Applicant Mother has the sole authority to cause the child to be issued with an Australian travel document at her discretion, and that the Respondent's consent for such travel document/s be dispensed with.

9. That pursuant to s 11 (1)(b)(ii) of the Australian Passports Act 2005 and these Orders, the child is permitted to travel outside the Commonwealth of Australia using an Australian travel document at the sole discretion of the Applicant Mother.

Dissemination of Orders

10. That the Applicant Mother is at liberty to provide a copy of these orders to all service providers for the child, including but not limited to the child's school, educational provider or any child care or day care facility, treating medical practitioners, any other doctors, therapists, counsellors, professionals or any other person or entity who provide services to or for the benefit of the child, as well as government departments.

Change of Name

11. The Applicant Mother is hereby authorised by these Order to apply to the Registrar of Births Deaths and Marriages to change the name of the child registered currently as PP born 2020, to a name of the Applicant Mother's choosing and her sole discretion.

12. Pursuant s 28(5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the child's name as directed by the mother pursuant to Order 8 11 herein.

13. The court directs that the Applicant forthwith serve a sealed copy of this order upon the Registrar.

AND THE COURT NOTES THAT:

A. Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

B. Order 12 of the orders made herein is amended pursuant to Rule 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to show that “Order 8” has been amended to read “Order 11”.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I pause. The prison has just left the link, but in any event, the matter was set down to start at 3.30 pm. The father had ample opportunity to make submissions. It is 5.00 pm, and the father or the prison has ended the link. I will continue: There is, in Australia, no rule of law that a Judge must accept evidence which is unchallenged: Cross on Evidence, 3rd Australian ed. (1986) - footnote 483 para.9.66 at 440; and Ellis v. Wallsend District Hospital (1989) Aust. Torts Reports 80-289 at 69,090; (1989) 17 NSWLR 553 at 588 (per Samuels, JA). However, a number of authorities establish that it may be "wrong, unreasonable or perverse to reject unchallenged evidence" (per Samuels, JA., Ellis v. Wallsend District Hospital, supra at Aust. Torts Reports 69,090; NSWLR 587) and that if an appellate court concludes that it were so, in the particular circumstances of a given case, it may overturn the decision of the primary Judge on the basis of an error of fact, rather than an error of law. The proper approach to unchallenged evidence was explained in Weissensteiner v The Queen (1993) 178 CLR 217 per Mason CJ, Deane & Dawson JJ at 227 thus:…[I]t has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because un-contradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it…. As I said, the father has had ample opportunity to put on material. The standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides: (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject- matter of the proceeding; and(c) the gravity of the matters alleged. It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, Gleeson CJ, McHugh and Gummow JJ said this:…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In any event, it all becomes somewhat of a moot point because the father does not have any form of application before me for any kind of time. He was given the opportunity and did not oppose the no time with orders.Section 60CC(3) – Additional Considerations I am required to go through the s 60CC(3) additional considerations, but in the parameters of the dispute, I really only need to turn my mind to these matters briefly. When I say parameters of the dispute, I mean the dispute is whether the mother can change the child’s name.(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; The child is too young to express a wish.(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child); I have, as I explained to Mr Theodore, two reports from the Department of Communities and Justice (“the Department”). They have no difficulties at all with the child living with the mother and that household includes the child’s wider sibship. The mother describes, in her unchallenged evidence, the most rudimentary relationship between the child and the father. (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; The unchallenged evidence is the father was sporadic in spending time with the child. There is no evidence before me the father was engaged in decision making for the child.(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child; I am told, again, in an unchallenged way, the father made some payments of money between November 2021 and November 2022 to an account in the child’s name. But there has been no actual child support paid by the father. That means the child’s financial support falls solely to the mother.(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; The mother proposes to keep things as they are. That is, no time, no communications. The father has no sworn proposal before me, and in any event, agrees that the child live with the mother, agrees to sole parental responsibility and does not oppose the no time order. (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;