Stavrou & Theodore
[2023] FedCFamC1F 977
•6 November 2023
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 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
811 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
This is a parenting application. The applicant mother was born in 1987, and the respondent father was born in 1981. The subject child is PP born 2020. Accordingly, she has turned three years old.
The mother and father commenced a relationship in about late 2019. They separated in January 2020. Afterwards, the mother found out she was pregnant. The mother says she and the father reconciled for a short period of time between mid-2020 and late 2020. They ceased cohabitation on 21 December 2020. I refer to the “mother’s evidence” because, as will become apparent, all I have is the mother’s evidence; the father has twice had the opportunity to put on material.
The mother was previously married to Mr Stavrou. They cohabited in 2011, were married in 2013 and separated on 11 March 2018. They have two children together, X and Y. X was born in 2013 and Y 2018. Relevantly, a Court has previously determined it is in those children’s best interests to make a proposed consent order that Mr Stavrou and the mother have equal shared parental responsibility for the children, for the children to live with the mother and spend substantial and significant time with Mr Stavrou. Those orders were proposed as consent orders but, as I was at pains to explain to Mr Theodore, a court must still turn its mind to whether those orders are in the best interests of those children, and plainly, an earlier judicial officer did.
The relevance of that will become apparent when I refer to the father’s submissions about the risk he says is posed by Mr Stavrou in the past, or may still pose, to the child/ren. That was obviously not the position taken by an earlier judicial officer.
The allegations the mother makes in her affidavit at paragraphs 18, 21, 23 to 27, 29 to 34 and 38 are set out below. Noting the mother is on-line and the BH Correctional Facility link open, I will not read those paragraphs out aloud, but will incorporate them in my written reasons:
18. At approximately […] [in mid] 2023, in breach of an ADVO (which I depose to further below), [Mr Theodore] broke into my home through the front door and attempted to [harm] me, my three (3) children, and [Mr Stavrou].
…
21. On that day, [Mr Theodore] broke into my home through the front door. [PP], [X], [Y] and I were asleep upstairs in the bedrooms. [Mr Stavrou] and I were sleeping in the master bedroom.
…
23. [Mr Stavrou] and I exited the bedroom, [Mr Stavrou] first. I had left the corridor light on. [Mr Theodore] was wearing dark clothing, a […] wig, a hat, a […] mask and was holding a [heavy object]. [Mr Stavrou] fought violently; he attempted to restrain [Mr Theodore] from hurting us and going to the children's bedrooms.
24. There was a lot of screaming and yelling. [Mr Stavrou] tackled [Mr Theodore] to the ground. [Mr Theodore] had a large [weapon] on his waist and a large [weapon] on his back. [Mr Theodore] yelled "I'm going to fucking kill you".
25. [Mr Theodore] hit [Mr Stavrou] in the face and neck with the [heavy object]. [Mr Theodore] lost the [object] and then grabbed the [weapon] from his waist. Both [Mr Stavrou] and [Mr Theodore] suffered cuts. [Mr Theodore] had a [serious injury] and [Mr Stavrou] had a [serious injury]. [Mr Theodore] bit [Mr Stavrou] on the arm. I heard someone say "I'm going to [hurt] you" and "I'm going to kill you".
26. I was able to use my phone to call 000 to call the Police.
27. I ran to [X] and [Y's] rooms and said words to the effect "Stay in your room. Do not come out". I could not get to [PP's] room as [Mr Stavrou] and [Mr Theodore] were fighting outside her room.
…
29. After some time of them fighting violently, [Mr Stavrou] was eventually able to restrain [Mr Theodore] in a choke hold from behind, and release the [weapon] from [Mr Theodore's] hands and throw it away. Once [Mr Theodore] was restrained, he said "I have taken a lot of tablets tonight. Let me go before the Police come".
30. The police arrived soon after and arrested [Mr Theodore]. After [Mr Theodore] was arrested, I comforted the children. I moved them into one room, but covered their faces with towels so they could not see the scene.
31. [Mr Stavrou] was treated by paramedics on scene and taken to hospital for surgery […] for injuries sustained during the fight. [Mr Theodore] was operated on immediately because he had an injury […] which was severe and life threatening.
32. The children and I were physically unharmed; however, we have been left traumatized.
33. When [Mr Theodore] broke into my home, he had in his possession: [a number of weapons and tools]
34. Inside [Mr Theodore's] car, which was found around the corner from my home was: [more weapons and tools]
…
38. Following the events of [mid] 2023, I understand that [Mr Theodore] is currently charged with: [a number of violent offences]
(Affidavit of [Ms Stavrou] filed 1 September 2023, paragraphs 18, 21, 23-27, 29-34 and 38)
The mother’s evidence is unchallenged. The father has a presumption of innocence. However, the test I am to apply for this child is the child’s best interests. I also note the old and well‑settled authority that any prejudice to a party is secondary to the best interests of a child Re K (1994) FLC 92-461 at 80,765 (“Re K”).
Service and Orders
The mother filed her application on 1 September 2023. It was accepted into the Critical Incident List. That is a List which the Court operates where urgent [decision making] matters are required, where there are some difficulties [with that], and where there is a parent who is either inappropriate or unavailable to make decisions for the child.
The father is in BH Correctional Facility. The matter was filed, as I said, on 1 September 2023, and the first return was before me on 5 September 2023. I made parenting orders on an interim basis, and I made orders for service on the father pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) for a person in a correctional facility. I also ordered Ms BL, the mother’s solicitor, to file an affidavit setting out the steps she had taken to bring the matter to the father’s attention. I am satisfied with what Ms BL says and the steps she took.
By my first return orders, the mother was to cause the father to be served within 72 hours of the 5 September 2023 order.
The father was to file material 28 days thereafter. So, he should have filed material by 6 October 2023 at the latest.
The father’s then solicitor filed a Notice of Address for Service on 9 October 2023.
The next return was on 20 October 2023. The father’s now former solicitor took a rather – if I could say – cavalier approach to the filing dates. Attached to Ms BL’s affidavit at Annexure BL10 is a copy of the file note of a conversation between the father’s then solicitor and a person within the employ of the firm in which Ms BL also works.
Noting again that the address for service was filed on 9 October 2023 and the next return was 20 October 2023, that solicitor did not file anything deposing to any difficulties he had in filing an affidavit. Instead, what I have before me is what I have described as a cavalier attitude from the father’s then solicitor. The file note includes things like this:
Going to be a bit of a messy one tomorrow, I just haven’t been able to get instructions. We would be broadly speaking asking for a stay until criminal proceedings finalised and some time to file.
It goes on and says other things such as:
I’d ask for 28 days to file that material.
And it concludes with:
Let’s see what happens.
That is in the context:
I have the link, let’s see what happens.
A certain formality ought attend to all court proceedings. That is not the approach that seems to have been taken by [the solicitor], referring to the matter as “a bit of a messy one tomorrow”. Curiously, he says he has not been able to get instructions but then goes on to say he will be asking for a stay until the criminal proceedings have finalised. Curiously, he also says he will be asking 28 days to file material. It seems like that solicitor was treating orders for filing as optional and court as a ground for play. There was no sense of formality of the Court proceedings or the solemn obligations the Court orders represent. This is not the first matter where orders for doing things by certain times have been disregarded by parties. Orders are not options, recommendations or guidelines. I join with Judge Given in a recent, unrelated decision (Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949) where her Honour observed at [1]:
1. …an apparent deterioration in the standard of conduct before the Court, which should not be allowed to endure.
Nevertheless, the father’s solicitor did not even put on an affidavit indicating that he was having troubles.
However, ultimately, it is the father who has the running of his matter. It is the father who gives instructions.
The second return was on 20 October 2023. Again, there was no material before me, as I have already indicated. The respondent’s approach was to basically ignore the previous Court orders and as foreshadowed in the file note, ask for more time with an expectation that his request for an indulgence for more time would be automatically granted.
As Judge Given said at [11] in the same decision just referred to:
11.Any party who apprehends an inability to so comply should approach the Court in advance (and in accordance with the terms of any specific liberty to apply) proffering an explanation for the foreshadowed inability to comply. It should be a rare state of affairs indeed in which the Court is approached for dispensation after orders have been breached. In such a circumstance, an explanation is not only warranted, but essential, to explain to the Court why the orders have been breached and to seek any further indulgence. The aforementioned explanations will most appropriately be proffered by Affidavit. …
(Emphasis added)
I will recap. The material was due on 6 October 2023. The solicitors came onto the record 9 October 2023. There was no affidavit from the solicitor between 9 October and 20 October 2023 proffering an explanation. The father tells me now that [the solicitor] was out of his depth, but there was no evidence of that when he appeared before me on 20 October 2023. I also put no weight on the father’s evidence-by-telephone that Ms BL bullied [the solicitor]. [The solicitor] is the named partner of his firm. He holds a practicing certificate. He is an officer of the Court. Compliance with orders is not optional.
At the hearing [on 20 October 2023], the respondent’s solicitor, true to form, mentioned adjourning the matter pending resolution of the criminal proceedings. I asked the father’s solicitor how waiting until the father’s criminal matters were resolved was in any way in the best interests of the child; that is, by having the child’s mother waiting in this Court for a possibly long time whilst the criminal matters proceeded. He said he understood that. I asked the father’s solicitor had he considered the rule in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”). He said he had. Indeed, Mr Theodore confirmed that his solicitor had taken that up with him when before me on the third return in November 2023.
At the 20 October 2023 hearing, the applicant sought orders on an undefended basis; however, I gave the respondent another chance to file and added:
THE COURT ORDERS THAT:
1.By no later than 4.00 pm on 3 November 2023 the respondent is to file and serve:
(a)a Response to an Initiating Application setting out with precision the interim and final orders sought;
(b) a supporting affidavit of no more than 10 pages; and
(c) a Notice of Child Abuse, Family Violence or Risk; but
nothing in these orders should be taken by the respondent father that he is required to participate in these proceedings.
2.In the event the father does not file material within the timeframe in Order 1, on the next return, the Court will make orders on a undefended final basis.
Next Return Listing
3.The matter is adjourned for mention, or an undefended hearing if Order 1 is not complied with, before Justice Brasch of the Federal Circuit and Family Court of Australia (Division 1) at 3.30 pm AEDT on 6 November 2023 by Microsoft Teams.
THE COURT NOTES THAT:
A.The father’s legal representatives did not oppose Order 2.
On 1 November 2023, the father’s solicitors filed a Notice of Ceasing to Act. That document clearly states today [6 November 2023] at 3.30 pm is the next date in Court.
No material was filed by 4.00 pm Friday just gone (being 3 November 2023). Plenty of people act for themselves. Plenty of people put pen to paper and write an affidavit. Plenty of people get their affidavits through Corrective Services to the Court. That has not occurred here.
The father attends today [6 November 2023] by a s 77 [Crimes (Administration of Sentence) Act 1999 (NSW)] appearance from the BH Correctional Facility. On Thursday, BH Correctional Facility requested that s 77 notice for today and at 3.30 pm; that is, they must have known. The father was unable to assist me in understanding how BH Correctional Facility knew that information when he told me he had no idea about the hearing this afternoon.
Nevertheless, I waited 45 minutes for the father to attend. The link is still open to BH Correctional Facility and has not been closed.
Material
The applicant relied upon:
·Initiating Application filed 1 September 2023;
·Affidavit of Ms Stavrou filed 1 September 2023;
·Genuine Steps Certificate filed 1 September 2023;
·Notice of child abuse family violence or risk filed 1 September 2023;
·Undertaking as to disclosure filed 1 September 2023; and
·Affidavit of Ms BL filed 19 October 2023.
The respondent, in terms of material, has been given two filing dates and not complied with either. I have, therefore, the unchallenged evidence of the mother.
The Full Court of the Family Court adopted this reasoning in Scott & Scott (1994) FLC 92-457 (Baker, Lindenmayer and Bell JJ) at 80,729:
There is in Australia no rule of law that a judge must –
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.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
PARENTING PROCEEDINGS
Part VII of the Family Law Act1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB. Section 60B of the Act sets out the objects and principles of Pt VII as follows:
(1) The objects are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson & Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “ensuring that the children had the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child”.
Here, the father agrees that the mother should have sole parental responsibility. That means I am not mandated to follow s 61DA of the Act, which would otherwise require that I consider equal time and significant and substantial time. In short, my consideration is at large albeit conditioned by the relevant considerations of Pt VII of the Act.
The father also agreed that the child should live with the mother, and that the child have no time or communications with him. I turn now to the best interests of the child.
Best interests of the child
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. The best interests of the child are determined by an examination of the considerations in s 60CC of the Act. I do not need to say terribly much about the s 60CC factors or, indeed, the primary considerations when the father’s dispute, really, is about whether the mother gets to change the child’s name or not.
Section 60CC(2)(a): a meaningful relationship
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169]:
169.There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
The father does not oppose the no contact and no communications orders sought by the mother. It is also somewhat, in those circumstances, redundant to consider s 60CC(2)(b), protection from harm, in any consideration. I am well alert to what is said in Isles& Nelissen (2022) FLC 94-092, that at some point, a risk to a child becomes so potent it cannot be tolerated and it is unacceptable. Further, if I form the view that the [father], say, formed an unacceptable risk to the child, then I need to look at conditions that may ameliorate that risk.
The father has not put on the most broad of denials before me in affidavit form. All I have is the mother’s unchallenged evidence of harrowing violence. I have the evidence from the mother of the impact on her of what she says occurs.
The father, however, in evidence from the bar table, albeit by phone, says that Mr Stavrou, the mother’s former partner, is a risk to the children. He said lots of things about sleeping with the children, sexual abuse, physical abuse and the like. Yet, I have already referred to an earlier court – an earlier judicial officer – determining equal shared parental responsibility, living with the mother and spending significant and substantial time with Mr Stavrou is in their best interests. I will not be unpicking that order.
In any event, the father did not have any actual evidence before me to turn my mind to anything about Mr Stavrou, other than what the mother has said. This is the man who is referred to in some of the paragraphs in the mother’s affidavit about the events on 22 August 2023, in particular, paragraphs 23, 24, 25, 29 and 31. I have no evidence of any probative value before me that Mr Stavrou forms any kind of risk to this child.
Balancing the primary considerations
Right now, the father is in jail, having been charged with the offences allegedly occurring against the mother in her family home. At a superficial level, it may be said the mother and the child are protected by his incarceration. But that is unduly simplistic.
Things may change in the future. For example, if the charges are dropped or he is acquitted, the father can take advice about Rice & Asplund.
Right now, it is hard to see how creating a relationship with the father would be healthy, worthwhile and advantageous to the child. I must also consider the impact on the mother that would have. I am satisfied on the strength of the mother’s unchallenged evidence that ordering a father-child relationship would have a deleterious impact on the mother and, thus, derivatively, the child.
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;
There is no evidence before me about this and it does not arise on the mother’s proposal, which has been committed to writing, and what the father said to me this afternoon.
(f) the capacity of: (i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs; (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
I have no concerns about the mother’s capacity to parent. The Department is content for the child/ren to live with her. The father’s capacity is untested. At its highest, on the actual evidence before me, he had sporadic, supervised time with the children at the mother’s house. The mother deposed that was something she did for fear of what the father may do if she withheld the child.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These subsections are not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child's parents;
What I said under capacity to parent applies with equal force here.
(j) any family violence involving the child or a member of the child's family; and
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
I have already referred to paragraph 38 which sets out the various things the father has been charged with, and what the mother says leads up to that. I will also include, though, under this subsection, various other paragraphs which list the three ADVOs that have been made in the mother’s favour:
41. Following this event on [in mid] 2023, the NSW Police applied for an Apprehended Domestic Violence Order against [Mr Theodore], for the protection of myself, [Mr Stavrou], and my three (3) children. Annexed hereto and marked "[WS-3]" is a true and correct copy of the Provisional ADVO and Application, dated […] 2023 (herein referred to as "the third ADVO").
42. In the third ADVO Grounds of Application it is written by [Ms BJ] ". .. Police believe that given the actions of the Accused and the number and nature of weapons and other items he possessed, the only reasonable inference that can be drawn is that the Accused entered the residence in a pre-panned endeavor with the intention of […] the occupants ... ".
43. The conditions of the third ADVO dated […] 2023 are:
43.1. That [Mr Theodore] not approach or contact [Mr Stavrou], [X], [Y], [PP] or I in any way.
43.2. That [Mr Theodore] not approach any place that [Mr Stavrou], [X], [Y], [PP] or I go to work or study, [PP's] preschool or [X] or [Y's] school.
43.3. That [Mr Theodore] not try to find [Mr Stavrou], [X], [Y], [PP] or I.
43.4. That [Mr Theodore] not go within 5000 metres of where [Mr Stavrou], [X], [Y], [PP] or I live or work including specific places that I work.
(Emphasis in original)
(Affidavit of [Ms Stavrou] filed 1 September 2023, paragraphs 41-43)
I then note that the third ADVO is the most recent. Prior to that, there was the first ADVO:
49. [In] 2021 a final ADVO ("the first ADVO") was made for a period of 2 years by [City BK] Local Court for my protection against [Mr Theodore], which expired [in…] 2023. I understand that the charges associated with that application were dismissed under the Mental Health Act. Annexed hereto and marked "[WS-5]" is a true and correct copy of the first Apprehended Domestic Violence Order dated […] 2021, which is the first ADVO brought against [Mr Theodore] for my safety together with a photograph of my […] injury from the incident [in…] 2020.
50. The conditions of the first ADVO were that [Mr Theodore] must not assault or threaten me, stalk, harass or intimidate me or intentionally or recklessly destroy or damage any property or harm an animal that belongs to me.
51. On 3 October 2021 [Mr Theodore] had sought to spend time with [PP]. During a conversation in relation to that, [Mr Theodore] said to me "If I don't see my fucking daughter, I'll fucking kill you". I have a recording of this conversation which I understand forms part of the Police Brief of Evidence against [Mr Theodore] in the current criminal proceedings. I can provide a copy to this Honourable Court if required.
52. [In mid] 2022 I was dropping [PP] to daycare, and [Mr Theodore] was on the phone to me making threats including "I am going to drive my car through your garage". I collapsed in the daycare reception. I believe I was having a panic attack. The daycare staff heard the threats, and have witnessed [Mr Theodore's] domestic violence towards me.
53. [In late] 2022 [Mr Theodore] was spending time with [PP] at my home. [Mr Theodore] become aggressive and said to me "It's going to be interesting when you don't have your mum, your dad, me or [Mr Stavrou], nobody sweetheart". I said to [Mr Theodore] words to the effect "Why are you saying this? What do you mean about mum and dad?" to which [Mr Theodore] responded, "We'll just have to wait and see what happens, I've got […], may as well use it all up on the town". I have a recording of this conversation which I understand forms part of the Police Brief of Evidence against [Mr Theodore] in the current criminal proceedings. I can provide a copy to this Honourable Court if required.
54. [In early] 2023 [Mr Theodore] was spending time with [PP] at my home. [Mr Theodore] made a comment to the effect of "I am going to […] everyone". I then began discreetly recording [Mr Theodore]. I replied to [Mr Theodore] "I don't think that is funny". [Mr Theodore] responded "I think it's funny that you think you'll call the police. You don't think the boys will then come and do the job for me? You've got no idea about how the other side of the world works. People owe me favours". I have a recording of this conversation which I understand forms part of the Police Brief of Evidence against [Mr Theodore] in the current criminal proceedings. I can provide a copy to this Honourable Court if required.
55. [In mid-]2023 [Mr Theodore] was spending time with [PP] at my home. [Mr Theodore] had become angry that I had spoken to [Mr Stavrou] earlier in the day. I said to [Mr Theodore] "Please stop arguing" to which he replied "You know what I'm goi g to do? I'm going to fucking […] him, and there's going to be another few people that are going to […] in the same process. The only one that's safe is [PP]". I have a recording of this conversation which I understand forms part of the Police Brief of Evidence against [Mr Theodore] in the current criminal proceedings. I can provide a copy to this Honourable Court if required.
56. [In mid] 2023 I was driving to work and had missed 11 calls from [Mr Theodore] that morning. He called again while I was driving, and I answered. [Mr Theodore] began questioning me erratically about where I was, who I was with, and whether I was with [Mr Stavrou]. He then said to me ''I'll kill [Mr Stavrou] and annihilate everyone". I became very dizzy and had what I believed to be a panic attack after the phone call. That afternoon I attended [Suburb VV] Police Station and provided a written statement about this event, together with the audio recordings I refer to above.
57. Each of these incidents left me feeling terrified for my safety and the safety of my family.
(Emphasis in original)
(Affidavit of [Ms Stavrou] filed 1 September 2023, paragraphs 49-57)
There was a second ADVO as well in this matter:
58. [Mr Theodore] was arrested [in mid] 2023, following my report to NSW Police [in mid] 2023, for domestic violence offences.
59. On or around [mid-]2023, a second ADVO was taken out against [Mr Theodore] for my protection ("the second ADVO"). Annexed hereto and marked "[WS-6]" is a true and correct copy of the Apprehended Domestic Violence Order and Application dated 3 August 2023, which is the second ADVO brought against [Mr Theodore] for my safety.
60. The conditions of the second ADVO were as follows:
60.1. That [Mr Theodore] not approach me;
60.2. That [Mr Theodore] must not assault or threaten me, stalk, harass or intimidate me or intentionally or recklessly destroy or damage any property or harm an animal that belongs to me;
60.3. That [Mr Theodore] not contact me unless through a lawyers;
60.4. That [Mr Theodore] not go within 50 metres of me or where I live or work.
61. [In mid] 2023 Mr Theodore send me a text message, in breach of the second ADVO.
62. [A short time later] [Mr Theodore] called me. I answered the call. [Mr Theodore] was again in breach of the second ADVO. I called the police and reported the breach.
63. [In] or around [mid] 2023 [Mr Theodore] was arrested for contravening the second ADVO, remanded in custody for a short period, and received conditional bail [a day later]. The ADVO contravention charge was due back before [City BK] Local Court [in] 2023; the day that [Mr Theodore] broke into my home.
64. [In mid] 2023 I saw [Mr Theodore's] car within the vicinity of my home. I reported this to police. I contacted [Mr Stavrou], informed him of my concerns for my safety, and he insisted on staying at my home for protection. [Mr Stavrou] stayed with me and the children at my home from [mid] 2023 onwards.
65. The events of [mid] 2023 ensued, and [Mr Theodore] is now in custody.
(Emphasis in original)
(Affidavit of [Ms Stavrou] filed 1 September 2023, paragraphs 58-65)
Those ADVOs mean judicial officers have been satisfied on the relevant standard that the father has committed acts of family violence against the mother. The father puts nothing before me which would cause me to question the factual basis upon which those orders were made.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Of course it would be preferrable to make orders least likely to lead to further proceedings. I must though do what is in the child’s best interests.
I do not have a crystal ball. If the father’s charges are dropped or he is acquitted, then he will have options available to him, and I have already mentioned Rice & Asplund. However, my mention of that case in no way guarantees that the father will be able to convince a separate Court officer that there has been a material change.
(m) any other fact or circumstance that the court thinks is relevant.
I make mention of Re K. It is apposite in these proceedings. In that matter, on 11 December 1992, the wife died and the husband was subsequently charged with her murder. He was awaiting trial at the time of the hearing before the trial judge in the parenting proceedings. The trial judge made orders that the father and his family were not happy with, and accordingly, the husband appealed. So did the paternal family, but that is not germane to what I have before me.
The husband’s grounds of appeal included that because he was unrepresented awaiting for trial on the charge of murder, the trial judge should have made interim rather than final orders. That is, having regard to those criminal charges and the father’s “right of silence” in the Family Court, there was a risk of injustice in the presentation of his case and consequently, the trial judge should have exercised his discretion to stay or adjourn the parenting proceedings, or at least adjourn their final determination until the conclusion of the criminal proceedings. The father’s appeal was dismissed.
I pause to observe the father (in this matter) asked for a third opportunity to put on material. He wanted to put on material about Mr Stavrou and the risk that he said he posed. But a previous judicial officer has already determined that. More importantly, there is nothing before me that would give me concern that the Department, for example, was in any way concerned with Mr Stavrou having some involvement in the children’s lives, and the subject child here. As I told the father, the currency of the Court is evidence. He has none – I declined to give him a third opportunity to do so. I return, then, to Re K.
In the situation that faced the trial judge there, the Full Court determined a judge would have a range of options. Namely:
(a) make no orders and adjourn proceedings, leaving the current de facto or de jour situation to govern the matter;
(b) make interim orders and adjourn the matter until the conclusion of the criminal proceedings; or
(c) make final orders.
The Full Court indicated that (a) would generally be inappropriate if there was a genuine contest between the parties. Here, there is not any form of contest between the parties other than the child’s name, and where the mother plainly needs orders for clarity and certainty as she goes forward parenting the child. The Full Court went on at 80,765:
The question whether the Court should make interim or final orders depends ultimately upon the circumstances of the individual case. However, the decision is to be made solely against the criterion of the welfare of the child. The circumstances alone that one of the parties has criminal charges pending would not justify an adjournment. In most cases the child’s welfare would not be served by his or her custody [as it was then] remaining in abeyance over what might be a substantial period of time pending the outcome of proceedings in the criminal courts. Generally a child is benefitted by certainty and regularity in his or her life.
I observe that was the gist of the conversation I had with the father’s solicitor last time the matter was before me.
The Full Court added at 80,765:
Any perceived disadvantage to the party is secondary to considerations of the welfare of the child. The outcome of the criminal proceedings may justify a subsequent application.
…
…It would not usually be to the welfare of the child for disputed proceedings about guardianship, custody or access to be delayed for a significant period of time because the person chooses to exercise that right or privilege [to silence].
I am bound by that authority. Of course, though, it gives me options and, ultimately, this is a matter for my discretion. However, it highlights that the child’s best interest would be most unlikely to be served by those best interests remaining in abeyance pending criminal proceedings which could take a significant period of time. Indeed, the father accepted that to be so. It could be some time. I have for those reasons and, really, not opposed by the husband, determined the mother’s orders with respect to time and communications are in the child’s best interests.
The child needs to be parented by the mother undistracted, at least, from the parenting proceedings. The father accepted the no time and no communications orders.
Personal protection orders
I will deal with the other issues the father did not oppose, that of personal protection orders. The father said he had no opposition to those orders being made because he wanted the mother to feel safe. In terms of my discretion, the circumstances of this case, the three AVDOs and charges against the father with no general denial by him, I am satisfied it is in the child’s best interests that the child and the mother be afforded the personal protections provided by the Act.
Passports
I will turn to passports. The father was not opposed to the child having holidays. He just wanted someone to be shown the mother’s return ticket. He was unable to assist me in how that would occur. I have no idea what sort of mechanism I ought put in place for that, and it is certainly not appropriate for tickets to be sent to me. Given the father had no concrete proposal for return tickets being shown to someone, there was very little I could do with that [his proposal].
It might be thought that the mother having sole parental responsibility would be sufficient for the passport’s office, but I understand the order is being sought out in an abundance of caution.
I determine it is in the child’s best interest that she be able to go on a holiday with her older siblings, with the mother, and whomever is the mother’s family, and that be done without the mother needing to seek the father’s signature on any such applications. If he refuses, then the mother would be put to the expense of bringing an application to the Court.
I have considered cases such as Line & Line (1997) FLC 92-729 and am satisfied the mother’s roots are in Australia. The father said the mother had access to lots of money and she could up and go and live anywhere.
However, it is not lost on me that it is the mother who is the applicant in the proceedings. It is the mother who, if she does have access to the kind of funds that the father referred to, did not up and leave with the child and her children after the events of mid-2023. What she did was to file in this court, a court of the Commonwealth of Australia. It is all rather academic in any event. Even if the mother did leave the country with the child for good or for a long time, that will not thwart any time with or communication orders between the child and the father - I am making no contact and no communication orders.
Name
I now turn to the dispute over the child’s name. Any decision about the name by which a child should be known is dictated by the child’s best interests. Take, for example, Reynolds & Sherman (2015) FLC 93-659 at [54]-[55]. There is no onus of proof. It is for the Court to balance in its discretion the factors for and against the change (Chapman & Palmer (1978) 4 Fam LR 462). That decision will be informed by such factors as the degree of identification of the child with the existing last name and any difficulties or embarrassment for the child in using the same or different last name.
The list of factors is not exhaustive, and there are many other conceivable considerations (see Flanagan & Handcock (2001) FLC 93-074 at [19]-[38]; M & B [2001] FamCA 894 at [35]-[37]).
In this matter, in the exercise of my discretion, the mother needs to be able to parent the child, not looking over her shoulder wondering if the father has found them or had others find them. It might be thought that with sole parental responsibility, the mother could make such decisions, but I understand this order too is sought out of an abundance of caution so there are no difficulties with Births, Deaths and Marriages.
The child has turned three, so it is unlikely she will have any attachment to her current last name or even understand what it is.
The mother also deposed to and gave examples of the media’s attention to this matter. The mother’s name and the father’s name have been published in the media. The child and the father share the same last name. It is not the mother’s application to change the child’s name to Stavrou. What she changes it to will be a matter for her, but it was a matter of considerable angst to the father that the mother was going to change the child’s name to Stavrou. That is not her explicit application. I do note, though, that the mother’s name is Stavrou as is the mother’s other children, so this child could end up with that name too.
Referring again to the media in the mother’s material, the mother sees changing the child’s name as a way to prevent the child from being associated with the father and, more so, the alleged crimes she deposed he has committed. The child is just three. Media is not a weighty consideration now, but it could well be in the future when the child reaches an age where she or her friends can conduct internet searches.
Accordingly, in the exercise of my discretion, I consider it in the child’s best interest that the mother, who will already be exercising sole parental responsibility, ought be able to approach Births, Deaths and Marriages and change the child’s name as currently registered to whatever name the mother chooses and in her sole discretion.
For all of those many reasons, I make the orders sought by the mother in her Initiating Application.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 16 November 2023
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