Fermikis & Fermikis

Case [2024] FedCFamC1F 879

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fermikis & Fermikis [2024] FedCFamC1F 879

File number(s): CAC 223 of 2023
Judgment of: CARTER J
Date of judgment: 19 December 2024
Catchwords:  FAMILY LAW – CONTRAVENTION – Final parenting orders made in September 2021 – Where the mother was previously found to have contravened the orders – Where the mother is on a bond – One count dismissed – Where four further counts are established – Where the mother did not take reasonable steps to comply – Where the mother has not established a reasonable excuse.
Legislation:

Family Law Act 1975 (Cth) ss 70, 102, Pt VII Div 13A

Family Law Amendment Act 2023 (Cth) Pt VII Div 13A
Cases cited:

Hatfield & Rivas [2024] FedCFamC1A 202

O’Brien & O’Brien (1993) FLC 92-396

Stamp & Stamp [2014] FCCA 1269

Stevenson & Hughes (1993) FLC 92-363

TVT & TLM [2006] FMCAfam 20
Division: Division 1 First Instance
Number of paragraphs: 160
Date of hearing: 11 November 2024
Place: Melbourne
Counsel for the Applicant: Mr Howard
Solicitor for the Applicant: Robinson + McGuinness Family Law
Counsel for the Respondent: Mr Strong
Solicitor for the Respondent: Legal Aid ACT

ORDERS

CAC 223 of 2023

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

MR FERMIKIS

Applicant
AND:

MS FERMIKIS

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

19 DECEMBER 2024

UPON NOTING THE COURT DECLARES THAT:

A.The respondent MS FERMIKIS has, without reasonable excuse, contravened:

(a)Order 10(a) of the orders dated 2 December 2022 on 11 December 2022;

(b)Order 11 of the orders dated 2 December 2022 on 27 December 2022;

(c)Order 11 of the orders dated 2 December 2022 on 28 December 2022; and

(d)Order 3(b)(i) of the orders dated 30 September 2021 on 16 January 2023.

THE COURT ORDERS THAT:

1.Count 1 of the contravention application filed 17 February 2023 is dismissed.

2.The Contravention Application filed 17 February 2023 be adjourned to 31 January 2025 at 10.00 am for further hearing before the Honourable Justice Carter for the parties to make submissions as to penalty.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUSTICE CARTER

  1. The application before the Court is the contravention application filed by…

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AGLC
Fermikis & Fermikis [2024] FedCFamC1F 879
Case
[2024] FedCFamC1F 879
Decision Date

CaseChat Overview and Summary

In the case of Mr Fermikis v Ms Fermikis, the applicant father filed a contravention application alleging that the mother had failed to comply with final parenting orders made on 30 September 2021. The final orders required the children to live with their mother in Queensland and spend time with the father on weekends and during school holidays. The mother did not facilitate the father's time with the children, leading to the contravention application being filed on 17 February 2023. The father alleged five counts of contravention, which the court examined to determine whether the mother had contravened the parenting orders without a reasonable excuse.

The court had to decide whether the mother contravened the final parenting orders on four specific dates: 11, 27, 28 December 2022, and 16 January 2023. The mother argued that she had a reasonable excuse for not facilitating the father's time with the children, claiming the children had expressed distress and reluctance to see their father. The mother's witnesses, including her mother and stepfather, provided evidence about the children's emotional state, but the court found their evidence to be vague and largely undated, thus not particularly helpful in establishing the specific dates of contravention. The court also noted the mother's own evidence was less impressive and lacked insight into her role in the situation.

The court dismissed the first count of the contravention application but found that the mother had contravened the final parenting orders on the specified dates without a reasonable excuse. The court relied on the father's credible evidence and the mother's failure to take reasonable steps to comply with the orders. The court relisted the matter for further submissions on the appropriate consequential orders to be made.

The court's decision was to dismiss the first count of the contravention application and to find that the mother had contravened the final parenting orders on four specific dates. The court ordered the contravention application to be adjourned for submissions on penalty. This decision highlights the importance of adhering to court-ordered parenting arrangements and the consequences of failing to do so without a reasonable excuse.

Orders

Orders of the court

CAC 223 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR FERMIKIS

Applicant

AND:

MS FERMIKIS

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

19 DECEMBER 2024

UPON NOTING THE COURT DECLARES THAT:

A. The respondent MS FERMIKIS has, without reasonable excuse, contravened:

(a) Order 10(a) of the orders dated 2 December 2022 on 11 December 2022;

(b) Order 11 of the orders dated 2 December 2022 on 27 December 2022;

(c) Order 11 of the orders dated 2 December 2022 on 28 December 2022; and

(d) Order 3(b)(i) of the orders dated 30 September 2021 on 16 January 2023.

THE COURT ORDERS THAT:

1. Count 1 of the contravention application filed 17 February 2023 is dismissed.

2. The Contravention Application filed 17 February 2023 be adjourned to 31 January 2025 at 10.00 am for further hearing before the Honourable Justice Carter for the parties to make submissions as to penalty.

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).

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

Background

Background to the litigation

Accordingly, no real weight can be given to Ms EE’s evidence in relation to the specific dates of alleged contravention. BACKGROUND The parties commenced a relationship either in around 2000 on the father’s case or around 1998 on the mother’s case. They separated on a final basis in November 2018. There are five children of the parties’ relationship, three of whom are the subject of these contravention proceedings. The subject children are Z, aged 11, W, aged 9 and Q, aged 7 (collectively referred to as “the children”). The parties were embroiled in parenting proceedings following their separation from February 2019 to February 2021. In March 2020, in the midst of the substantive proceedings, the mother made a unilateral decision to relocate with the children from City V to Town R, Queensland. The father’s time with the children ceased between March and October 2020. The father was able to recommence spending professionally supervised time with the children on five occasions between October 2020 to January 2021. On 30 September 2021, final parenting orders were made by this Court. At the time, the children had not spent any time with their father for about eight months. The final orders provided, relevantly, that the children would live with their mother in Queensland and spend time with the father on weekends on a monthly basis, increasing from daytime visits to overnight occasions. Additional time was to occur during school holidays, for more extended periods, once the monthly visits had commenced. Handovers were to occur at a contact handover centre or at a place agreed to in writing between the parties. Failing agreement between the parties, changeovers were to take place at Town R Police Station (“the police station”). The mother did not comply with the final orders after 30 September 2021 and the children did not see their father until December 2022. This was notwithstanding that the father travelled to Town R from his residence in City V to spend time with the children on 19 and 20 February 2022, 19 and 20 March 2022 and 23 and 24 April 2022 at his own cost. The mother did not facilitate time with the children on any of these occasions. She attributed her failure to facilitate time to her incorrect belief that the father could not spend time with the children until he completed the ‘U Services’ program which the final orders contemplated the father undertake. On 24 May 2022 the father filed a contravention application (“the first contravention application”) following the mother’s failure to facilitate time on these occasions. On 2 August 2022, the mother filed an Initiating Application seeking to discharge the final parenting orders, and instead sought orders for the children to live with her and spend supervised time with the father. The father filed a Response in which he sought that the mother’s Initiating Application be dismissed. From April 2022 to November 2022 the father continued to communicate with the mother through AppClose providing written notice of his intention to spend time with the children in accordance with the final orders although he did not physically travel to Town R. That was understandable in circumstances where it was overwhelmingly likely the children would not have been provided to him.

Evidence

Evidence Before The Court

The application before the Court is the contravention application filed by the father on 17 February 2023. In that application five counts of contravention are asserted. For the reasons that follow I have determined:(a)to dismiss the first count;(b)that the mother has contravened the orders on 11, 27, 28 December 2022 and 16 January 2023 (being counts 2, 3, 4 and 5); and(c)to relist the matter for submissions as to the appropriate consequential orders. THE EVIDENCE The father relied on the contravention application filed 17 February 2023 and his affidavit filed that same day. He gave evidence and was subject to cross examination. He was a credible witness and gave his evidence in a straightforward manner. The mother relied on her affidavit dated 21 March 2024. In addition, she relied on affidavits filed by her mother and stepfather, Ms EE and Mr FF filed on 26 July 2024. The mother elected to give evidence and be cross examined. She was a less impressive witness than the father. She took opportunities to unnecessarily criticise the father and demonstrated very little insight into the role she has played in the current situation. Mr FF was also cross examined and presented as a straightforward and largely credible witness. Ms EE was not required for cross examination and accordingly her evidence is unchallenged. However, her evidence was substantially unparticularised as to dates and times. For instance Ms EE deposed:(a)that the children made complaints about their father and not wanting to see him;(b)that the children had “been suffering from night terrors since that first visit”; (c)that the children had “portrayed extreme anxiety in the form of not wanting to sleep, being afraid of not seeing their mum again, not eating property, not wanting to do anything”; (d)that over 18 months (presumably since December 2022) she has “noticed a gradual decline in [W]” and at some unspecified time said he “would rather die then [sic] go with his father”; and (e)that “[Z] has threatened to run away if she is forced to see her father” and that she gets “very anxious and upset when proposed handovers are near”. In relation to some of these assertions they were vaguely linked to ‘before and after [undated] handovers’. Mostly, however, these broad assertions were undated. Ms EE was also not present at any of the attempted changeovers. Accordingly, no real weight can be given to Ms EE’s evidence in relation to the specific dates of alleged contravention. BACKGROUND The parties commenced a relationship either in around 2000 on the father’s case or around 1998 on the mother’s case. They separated on a final basis in November 2018. There are five children of the parties’ relationship, three of whom are the subject of these contravention proceedings. The subject children are Z, aged 11, W, aged 9 and Q, aged 7 (collectively referred to as “the children”). The parties were embroiled in parenting proceedings following their separation from February 2019 to February 2021.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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