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 of 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

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).

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

REASONS FOR JUDGMENT

Introduction

1. This judgment concerns the parenting arrangements for the children of the relationship, X (17 years old), Y (10 years old), Z (6 years old), W (4 years old) and Q (almost 3 years old).  It takes place in a context of the children not being provided to the Father despite orders for that to occur, and in the further context of the Mother having relocated with the children to Queensland without notice to the Father, the ICL or the Court.  Each of the parties makes serious allegations about the risk of harm presented to the children by the other.

Recent background

1. On 25 February 2019 Judge Hughes made a number of Interim Orders.  Amongst those, Order 10 provided:

   That the Mother be restrained from changing the children’s place of residence from the ACT area, until further Order.

2. Further Interim Orders were made on 27 September 2019 by Judge Hughes.  They provided for the Father to call X and Y once a week.  Further orders were made by her Honour that the Father spend time with Z, W and Q each alternate Friday from 10 am to 5 pm and each alternate Saturday from 10 am to Sunday 5pm with the Father’s sister or an agreed person to be in substantial attendance during the Father’s time with the children.  The Father’s time with the children is to occur in B Town and C Town, New South Wales and the handover to occur at D Services, or at Woolworths at F Centre.

3. Contemporaneously with the litigation in the Federal Circuit Court, the Father was facing criminal prosecution in the ACT Magistrates Court for assaults upon the Mother and breach of a Domestic Violence Order.  X and Y were prosecution witnesses.

4. The Father has not spent time with X and Y since separation in November 2018 (the time of the incident the subject of the proceedings in the Magistrate’s Court).

5. The Father pleaded guilty to the breach of the Domestic Violence Order and was sentenced to a good behaviour order.  He was acquitted of the assaults upon the Mother in March 2020.

6. The Father has not spent time with Z, W and Q since approximately February or March 2020.  Prior to this his time with these children was inconsistent, the Mother failing on numerous occasions to provide the children.  The Mother asserts that the children were variously suffering from illnesses, and that the Father was not complying with his obligations pursuant to bail conditions, pursuant to the Domestic Violence Order, or pursuant to the orders of the Federal Circuit Court.

7. On 30 April 2020 the Mother advised the Court that she was not providing the children to the Father.  Section 69ZW material was sought from CYPS and the AFP.  The matter was transferred to the Family Court of Australia.

8. On 7 May 2020 the Mother again advised the Court that she was not providing the children, alleging that there were matters of unacceptable risk that justified that course.  The Mother indicated that she would file an application to suspend the current orders.  Filing directions were made, and the matter was listed for interim hearing on 2 June 2020.  The relevant welfare agency (CYPS) was invited to intervene but declined to do so.

9. Neither party complied with the filing directions.  Each had previously filed an affidavit in the proceedings before the Federal Circuit Court.  The Mother filed a further affidavit on 25 May 2020 in which she disclosed that she had removed the children to live with her in Queensland on 25 March 2020.  She had not informed the Court that she had done so on either of the previous two occasions that the matter was before the Court.

10. On 28 May 2020 the Father filed a Response to an Application in a Case seeking the children’s return to the ACT and for shared care.  In the event the Mother does not return he seeks a recovery order.  He filed an affidavit in support.

11. Despite having been provided with the link for the proceedings, the Mother did not initially attend on 2 June 2020.  Lawyers appearing on her behalf were granted leave to withdraw on the basis that the Mother had told the Legal Aid Commission that she did not wish to be represented by them.  Unsuccessful attempts were made to contact the Mother by telephone.  The proceedings continued in her absence, until she made contact with the Court later in the morning and joined the hearing.  She said that she had difficulties with the link and with the telephone.  The Mother was refused an adjournment, although she and the Father were permitted to rely on their affidavits filed out of time, as well as their previous affidavits from the Federal Circuit Court.

What the parties sought

1. The Mother sought to regularise her move with the children to Queensland and that there be limited supervised face to face time with the Father, funded by the Father.

2. The Father sought that the Mother return with the children to Canberra and that they equally share the time with the youngest three children.  He sought limited time with the older two children accompanied by therapeutic intervention.

3. In the event that the Mother did not return, the Father sought recovery orders and that all five children live with him full time.

4. The Independent Children’s Lawyer sought that the Mother return with the children to Canberra and that the children return to the regime imposed by the orders of Judge Hughes of 27 September 2019.

5. In the event that the Mother did not return, she supported the Father’s application for full time care.

Principles

1. The paramount consideration in determining what order should be made is, pursuant to s 60CA, the best interests of each of the children.  That is to be determined on consideration of the matters set out at s 60CC of the Act, but in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA. 

2. In interim proceedings the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests.  It is necessary[1] to:

   keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made.

   [1]SS v AH [2010] FamCAFC 13 at [81]

3. Despite this limitation[2]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [2]SS v AH [2010] FamCAFC 13 at [100]

4. The Court is also required, pursuant to s 61DA, to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility unless the presumption is rendered inapplicable, inappropriate (in interim proceedings) or rebutted.

5. If an order is to be made for equal shared parental responsibility then the Court is to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles[3] as “the careful exercise of a structured discretion to determine the appropriate order to be made”.  That process calls for the sequential consideration of orders for equal time with parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.

   [3] (2007) FLC 93-343.

6. While there is no separate category of relocation cases, cases involving a proposal that a party will move with a child pose hard questions with difficult consequences.  In Morgan & Miles Boland J observed in relation to relocation cases that[4]:

   80. It follows from my exposition of the legislation, that earlier core principles:

   – that the child's best interests remain the paramount but not sole consideration;

   – that a parent wishing to move does not need to demonstrate “compelling” reasons;

   – that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child's best interests; and

   – the child's best interests must be weighed and balanced with the “right” of the proposed relocating parent's freedom of movement,

   remain valid.

   [4]Morgan & Miles 2007 FLC 93-343 [79]ff

The key issues identified by the parties

1. The Mother raised the following matters in support of her application:

   a)Her need for an urgent hysterectomy, which will require a six week recovery time;

   b)Alleged disclosures made by the children regarding the Father; and

   c)Incidents happening around her home in Canberra.

2. The Mother also sought to resist the orders sought by the Father on the basis of the children’s circumstances in Queensland, inadequacies in the Father’s parenting capacity, the need for X’s voice to be heard in the proceedings, the Father associating with drug dealing, and finally due to inadequacies in the supervision arrangements for the children when spending time with the Father.

3. In support of his position, the Father identified:

   a)Low school attendance rates while the children are in the care of the Mother;

   b)Failures on the part of the Mother to provide appropriate health care for the children, including in relation to dental care;

   c)The mother’s move to Queensland and withholding of the children despite orders being in place for the three youngest children to spend time with him; and

   d)Allegedly false reports by the Mother about the Father, including of abuse of the children and of the Mother.

Discussion

1. In resolving this matter it is necessary to bear in mind the limitations of interim hearings.  It is also necessary to bear in mind that the focus of the decision making is on the well-being of the children, and not upon failures of a party to comply with orders.  It is necessary to bear in mind that the Court should not be drawn into factual disputes that can only be resolved by the final hearing.  At the same time, where contentious matters arise that have the potential to impact heavily on the well-being of the children, such cannot be ignored but require some evaluation in the context of the Court being unable to make a determination.  The Court is to, where possible, concentrate on the non-contentious, or objectively supported matters.

2. The dominant s 60CC considerations are the primary considerations, being the need to protect the children from harm occasioned by abuse, neglect or family violence, along with the consideration of the benefits of meaningful relationship with each parent.  Subsumed within these are considerations relating to parental capacity, family violence and the nature of the children’s relationships with each parent.  There is the need to consider the impact of a change in circumstances and the practical difficulties of spending time with each parent.  In relation to X in particular there is a need to consider the views of the children.

3. The Father can claim an objective basis for a number of his claims in respect of the Mother, including the low school attendance, health care issues and unilateral relocation to Queensland.

4. The Mother has provided no support for her contention that she requires urgent medical assistance by way of documentation from a hospital or other health care professional.  Although she has support from her mother and stepfather as to her medical needs, there is no indication that this information is sourced other than from the Mother herself.

5. Similarly there is little support for the Mother’s assertions that there were incidents happening at her home.

6. There is strong evidence to support the notion that while in Queensland the Mother has adequate support provided by her mother and stepfather.

7. There is some support for her claims as to disclosures by the children.  The Mother’s mother recounts a number of disclosures made by the children that may be indicative of sexual abuse or being subjected to or exposed to family violence perpetrated by the Father.

8. If this is occurring, then the risk to the children’s well-being is strong.

9. At the same time, there is support for the Father’s contention that the Mother is making false allegations as to his interfering with the children.  The Mother’s assertions to the police about incidents are inconsistent, both internally and inconsistent with comments made by the children to the police.  Exhibit C4 contains interactions between the Mother, the children, the AFP and CYPS.

10. Significant questions are raised by the police material as to both concoction by the Mother, and involvement of the children in the concoction.  If this is occurring, it constitutes abuse of the children, and is deeply harmful to their well-being.

11. It should also be observed that the Father’s primary position that there should be limited time with X and Y, accompanied by a therapeutic process, is indicative of the limitations of their relationship with him.

12. It may be observed, then, that there is no risk neutral position that can be adopted in resolving this matter on an interim basis.  It is not possible to resolve the risk issues raised in relation to the Father at present, nor the risk issues posed by the Mother.  The children are potentially at risk with either parent.

13. Some matters emerge more clearly. 

14. Given the lack of time spent by X and Y with the Father, given that they have recently given evidence against him in respect of assaults upon the Mother, and given the tacit concession inferred from the Father’s position that there needs to be therapeutic reintroduction, it cannot be thought to be in their interests to be removed from the Mother to live with the Father if the Mother does not return to the ACT.

15. If the Mother remains in Queensland, the issues of neglect and capacity to care for the children are ameliorated by the support from her mother and stepfather.  At the same time, the options for maintaining a relationship between Z, W and Q with the Father are limited and heavily reliant on further support from the Mother’s mother and stepfather. 

16. If the children are not spending regular time with the Father, and the Mother is concocting allegations of abuse, and involving the children in that concoction, there is significant prejudice to the children being able to have a relationship with the Father that provides benefit to them.

17. On the other hand, if there is a grain of truth in the allegations of sexual abuse, or of exposure to serious family violence by the Father (as testified to by X and Y in the Magistrates Court), then the results of being exposed to the Father may not only include only minimal benefits, but also exposure to insecurity, fear and trauma.

18. By operation of s 60CC(2A), the Family Law Act places a primacy upon the need to protect children from harm occasioned by being exposed to abuse, neglect or family violence.  Despite the unpalatability of orders that appear to reward a parent who has flaunted the orders of the Court by removal of the children in the face of an injunction, the Mother remaining in Queensland with the children is the result that most significantly ameliorates the risks faced by the children.

19. Remaining in Queensland ameliorates the risks associated with neglect by the Mother, by virtue of the involvement of the Mother’s mother and stepfather.  It also ameliorates risks posed by the Father in relation to sexual abuse and family violence.  It does little to ameliorate the risk of abuse posed by the Mother in relation to potential involvement of the children in concoction of sexual abuse allegations.

20. It will be necessary to hear from the parties further in relation to arrangements for the Father to spend time with children while they remain in Queensland.

21. It will also be necessary to accord this matter priority within the list given the unresolved issues of risk of harm facing the children in the care of either parent.  Further, given this assessment, CYPS will again be invited to intervene, on the basis that there is a real prospect that there is no parent available to care for these children and protect them from harm, and that each parent potentially constitutes a source of harm to the children.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 June 2020.

Associate: 

Date:  4 June 2020