Fermikis and Fermikis (No 2)

[2020] FamCA 457

FAMILY COURT OF AUSTRALIA

FERMIKIS & FERMIKIS (NO. 2) [2020] FamCA 457

FAMILY LAW – PRACTICE AND PROCEDURE – what material is read – what applications are heard – late filing – unilateral interstate relocation of children without notice to parties or Court – non-attendance of Mother at Court – allow Mother to rely upon affidavit filed out of time and Father to rely upon affidavit filed in response

Family Law Act 1975 (Cth)

APPLICANT: Ms Fermikis

RESPONDENT: Mr Fermikis

INDEPENDENT CHILDREN’S LAWYER: Ms Orczykowski

FILE NUMBER: CAC 498 of 2012

DATE DELIVERED: 2 June 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 2 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Neilan Stramandinoli Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Boland Legal Family Lawyers

Orders

1. It is ordered that the Affidavit of Ms Fermikis of 25 May 2020 is read into the proceedings. 

2. It is ordered that the Response to an Application in a Case and Affidavit of Mr Fermikis of 28 May 2020 are read into the proceedings.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fermikis & Fermikis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 498 of 2012

Ms Fermikis

Applicant

And

Mr Fermikis

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The first aspect of this matter concerns procedural determinations in relation to what material is to be read and what applications are to be heard. 

2. The procedural background of the matter is that the parties came before me on 7 May 2020, at which time the proceedings were set for interim hearing today, 2 June 2020.  On that day filing directions were made for the Mother to file a single consolidated affidavit by 18 May 2020, with the Father to file a single consolidated affidavit by 25 May 2020.  The Mother did not file that affidavit, leaving her filing of material until 26 May 2020 at which time she filed a series of affidavits from herself and other persons.  At the same time the Mother filed an Application in a Case wherein she sought, amongst other things, orders that permitted her to relocate the residence of the children to Queensland.  What was disclosed in her affidavit material is that that step had already taken place and that the Mother had relocated to Queensland, presumably without any notice to the Father and certainly without any notice to the Court, as early as March 2020.  That was not a matter that was disclosed by her to the Court when the matter appeared before me earlier in May.

3. On 26 May 2020 Registrar Walker-Munro noted that the filing of the Mother's affidavit was outside the directions that had been made by me and hence she would require leave to be able to rely upon those affidavits.  Her Application in a Case was listed for directions. 

4. The Father has subsequently filed a Response to an Application in a Case wherein he seeks relief including a Recovery Order to issue in respect of the children.  He has also filed an affidavit on 28 May 2020, again outside of the filing direction, but in circumstances where the Mother had not filed her affidavit material until much later than was provided for.  It must also be recognised that the filing of the Mother's affidavit material disclosed a reasonably startling new set of circumstances, being the Mother's presumptive relocation to Queensland with the children as at March 2020. 

5. The Father seeks that I allow the Mother to rely upon the affidavit that she has filed out of time.  He seeks that to occur in circumstances where the Mother has not appeared today to prosecute any particular orders before the Court and certainly not appeared to prosecute her application for relocation.  That occurs in the further circumstances where the Mother’s previous solicitor has filed a Notice of Ceasing to Act and an appearance was made by counsel instructed by the Legal Aid Commission who advised that a grant of aid had been allocated to Ms H as at Friday of last week to provide the Mother with legal representation.  Dr J informed me that she has conferenced with the Mother and that the Legal Aid Commission has been advised by the Mother that she no longer wishes to be represented by them and has withdrawn her instructions from them.  Accordingly Dr J was also granted leave to withdraw from the proceedings. 

6. There is now no appearance by the Mother today.  The Mother has been telephoned on two occasions by my Associate with both calls going to voicemail and has been provided with the link to the video proceedings by the solicitor for the Father (see Exhibit C2).  The Mother has emailed the Court seeking an adjournment (see Exhibit C1), but has made no appearance today.

7. Under those circumstances, and where the Mother has disclosed that she has as of March 2020 removed the children to Queensland, it is appropriate that notwithstanding the failure to comply with the filing directions that I take into account her affidavit which discloses those circumstances and the Father's affidavit in response, noting that his affidavit material has also been emailed to the Mother.  It is also appropriate under those circumstances that leave is granted for the Father to rely upon his Response to an Application in a Case and for that matter to be dealt with today.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 2 June 2020.

Associate:

Date:  5 June 2020