FERMIKIS & FERMIKIS - [2020] FamCA 449

FAMILY COURT OF AUSTRALIA

FERMIKIS & FERMIKIS

[2020] FamCA 449

FAMILY LAW – Parenting arrangements – children not provided to parent despite orders – interim restraint on changing children’s place of residence – unilateral interstate relocation by parent without notice to parties or Court – focus on best interests of the children rather than on the conduct of the parent in removing the children contrary to orders – allegations about risk of harm presented to children by each parent – primacy of protecting children from harm – no risk neutral resolution available – allegations of sexual abuse – potential concoction of sexual abuse allegations – family violence – where children have given evidence against parent in previous criminal proceedings – neglect – support of broader family ameliorating risk of neglect – renewal of invitation to welfare agency to intervene in the proceedings

Family Law Act 1975 (Cth) – ss 60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA, 69ZW

Morgan & Miles 2007 FLC 93-343
SS v AH [2010] FamCAFC 13

APPLICANT:

Ms Fermikis

RESPONDENT:

Mr Fermikis

INDEPENDENT CHILDREN’S LAWYER:

Ms Orczykowski

FILE NUMBER:

CAC

498

2012

DATE DELIVERED:

4 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

It is ordered that

The Mother is permitted to relocate the children’s residence to the maternal grandparent’s residence in Queensland.
Order 10 of the Orders of 25 February 2019 is discharged.
Order 4 of the Interim Orders by Consent and Order 1 of the Interim Orders Not by Consent made on 27 September 2019 which govern time with the Father are discharged.
The matter is relisted for determination of interim arrangements for time with the Father, for trial directions and for the parties to advise as to the potential appointment of a Single Expert at 11am on 9 July 2020.
The Mother is to file and serve a single consolidated affidavit from herself and any witness she intends to rely upon by 4pm on 25 June 2020.
The Father is to file and serve a single consolidated affidavit from himself and any witness he intends to rely upon by 4pm on 2 July 2020.
The matter is intended to be listed for Final Hearing at 10am on 28 September 2020.

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] FamCA 449
Decision Date: 4 June 2020

CaseChat Overview and Summary

In *Fermikis & Fermikis*, Gill J of the Family Court of Australia considered parenting arrangements for children where one parent had unilaterally relocated them interstate contrary to existing court orders. The dispute involved serious allegations of risk of harm, including sexual abuse and neglect, presented by each parent against the other, and the children's prior evidence against one parent in criminal proceedings.

The court was required to determine the paramount consideration of the children's best interests, particularly in light of the allegations of harm and family violence. This included assessing the risk posed by each parent and considering whether the support of the broader family might ameliorate any identified risks of neglect. The court also had to address the implications of the mother's relocation of the children without notice to the father or the court, and whether a risk-neutral resolution was achievable.

Gill J's reasoning focused on the primacy of protecting the children from harm, rather than solely on the mother's conduct in removing the children contrary to orders. The court acknowledged the potential for concoction of sexual abuse allegations and considered the impact of the children having given evidence against a parent in previous criminal proceedings. The court also noted the potential for support from the maternal grandparents to mitigate risks of neglect.

The court ordered that the mother be permitted to relocate the children’s residence to Queensland, discharged specific interim orders concerning the children's residence and time with the father, and relisted the matter for determination of interim arrangements for time with the father, trial directions, and consideration of a single expert. Further affidavit filing deadlines were set, and the matter was listed for a final hearing.

Orders

Orders of the court

1. The Mother is permitted to relocate the children’s residence to the maternal grandparent’s residence in Queensland.

2. Order 10 of the Orders of 25 February 2019 is discharged.

3. Order 4 of the Interim Orders by Consent and Order 1 of the Interim Orders Not by Consent made on 27 September 2019 which govern time with the Father are discharged.

4. The matter is relisted for determination of interim arrangements for time with the Father, for trial directions and for the parties to advise as to the potential appointment of a Single Expert at 11am on 9 July 2020.

5. The Mother is to file and serve a single consolidated affidavit from herself and any witness she intends to rely upon by 4pm on 25 June 2020.

6. The Father is to file and serve a single consolidated affidavit from himself and any witness he intends to rely upon by 4pm on 2 July 2020.

7. The matter is intended to be listed for Final Hearing at 10am on 28 September 2020.

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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