Fermikis & Fermikis
[2024] FedCFamC1F 879
•19 December 2024
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
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.
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.
On 2 December 2022 the father’s first contravention application came before the Court. The mother conceded that she had contravened the final orders without reasonable excuse. The Court ordered that:
(a)the mother enter into three separate bonds for two years with a self-surety of $1,000 on the condition that the mother comply with the final orders;
(b)the children spend time with the father from 9.00 am to 5.00 pm on 10 and 11 December 2022;
(c)the children spend time with the father for five consecutive days from 9.00 am to 5.00 pm on 27 to 30 December 2022, then from 9.00 am to 3.00 pm on 31 December 2022; and
(d)the mother’s Initiating Application filed on 2 August 2024 be dismissed.
Regrettably non-compliance with the orders continued.
On 17 February 2023 the father filed a further contravention application on the basis of further alleged contraventions which is now before me to determine.
As already observed, the children ceased spending time with their father in about January 2021. Despite the father having travelled to Town R on multiple occasions throughout 2022, 2023 and 2024 to spend time with the children the only occasions on which the children have spent time with him since the making of the final orders in September 2021 are as follows:
(a)with W and Q on 10 and 11 December 2022; and
(b)with all three children on 26 to 27 July 2024. Orders had been made on 8 July 2024 providing for a recovery order to lie in chambers and be issued if the mother failed to make the children available on that occasion.
The second contravention application filed 17 February 2023 has unfortunately taken a protracted period to proceed to a final hearing. At the first listing in June 2023, it was apparent the matter attracted the mandatory operation of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) and the matter had to be adjourned for the parties to obtain representation. There were then issues with securing funding which the parties had failed to arrange by the time of the next return date in October 2023. The matter was adjourned to 27 March 2024. On that day the hearing did not proceed as the parties engaged in settlement negotiations for almost the entire day but were ultimately unable to come to an agreement. The matter was relisted to 31 May 2024.
On 24 May 2024 the mother filed an Application in a Proceeding and sought an adjournment on the basis that she was experiencing poor health and would not be able to attend the hearing on 31 May 2024 or provide instructions to her solicitor for the preparation of an affidavit. The Application in a Proceeding was listed for mention on 29 May 2024 and at the mention the hearing on 31 May 2024 was vacated and adjourned to 8 July 2024.
On 8 July 2024 at the commencement of the hearing the mother advised the Court that she was having technical issues. She then mentioned “her heart” before disconnecting from the virtual court room and thereafter was uncontactable. The mother deposed on 12 July 2024 that she experienced an elevated heart rate which caused her to leave the hearing and go to a hospital by ambulance. She stated that she was later informed by her general practitioner that she had experienced medical symptoms. She subsequently produced a medical certificate which corroborated her ill-health at that time.
The matter was listed for mention on 8 August 2024 at which time the final hearing was set down to commence on 11 November 2024. The matter proceeded on that day.
THE LAW
The contraventions alleged against the mother are confined to the period between December 2022 and January 2023. The second contravention application was filed on 17 February 2023 and as set out, was heard on 11 November 2024. On 6 May 2024 the provisions of Pt VII, Div 13A of the Act were substantially amended by the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”).
As observed by Austin J in Hatfield & Rivas [2024] FedCFamC1A 202, in the absence of transitional provisions regulating the timing of the commencement of the new Pt VII Div 13A of the Amendment Act, the provisions of the Amendment Act do not apply.
It is the applicant’s burden to satisfy the Court that the respondent has contravened the order. That requires the Court to be satisfied that the mother was bound by the order and either intentionally failed to comply with the order, or made no reasonable attempt to comply with the order – s 70NAC of the Act.
In the event the Court is so satisfied, and the mother wishes to assert she had a reasonable excuse, she must satisfy the Court of that.
Usually, the standard of proof is the balance of probabilities. However, in this matter the father is asserting that the contraventions are more serious and should attract a prison sentence. If that is the ultimate determination, the standard of proof is the criminal standard – beyond reasonable doubt.
The function of contravention proceedings is to ensure compliance rather than to punish. In seeking to ensure compliance, however, the Court is able to exercise coercive powers, including imposing a fine, or a sentence of imprisonment. It is notable that the mother has already been found to have contravened orders on a previous occasion, and that she entered into a bond with the condition that she comply with orders.
The meaning of “reasonable attempt”
The mother conceded that time did not occur on each of the occasions as asserted by the father. She said she made reasonable attempts to comply with the orders on each occasion.
What constitutes a reasonable attempt to comply with orders has been discussed in a number of cases. It will depend on the facts and circumstances of each case. What is clear is that positive steps are to be made by the parents to ensure the orders are put into effect.
This is made very clear in the “parenting orders — obligations, consequences and who can help” statement which is annexed to every parenting order of this Court, including those made in the extant matter. That statement sets out:
Your legal obligations
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so.
In the matter of Stamp & Stamp [2014] FCCA 1269 (“Stamp”) Riethmuller J set out observations made in a number of cases with respect to the meaning of “reasonable attempt” including:
(a)the primary carer must actively encourage the child to attend time with the other parent as ordered;
(b)the Court should consider whether in reality the primary carer has taken reasonable steps, rather than just considering what has occurred “on the face of things”; see O’Brien & O’Brien (1993) FLC 92-396 at [13];
(c)a parent must do more than deliver the child to the point of changeover, invite the child to walk to the other parent and do nothing further to encourage the child to attend. If the child then refuses to attend it will not be open to the primary carer to say they have “tried” and thereby discharged their obligations “by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep”; see Stevenson & Hughes (1993) FLC 92-363 at [25] (“Stevenson”);
(d)it is insufficient for the primary carer to say it is up to the child whether they attend for time, or to imply that this is the case;
(e)the primary carer should make the child understand that the primary carer requires the child to spend time with the other parent;
(f)parents are expected to bring to bear all the authority that they have over a child to ensure compliance with orders, just as they would to ensure the child attends school;
(g)the tone adopted by the primary carer may be relevant. A child can be invited to spend time with their other parent in a way that conveys a suggestion the primary carer really does not mind if the child says they do not want to attend. Such an invitation will not be sufficient;
(h)token efforts at compliance, by uttering a few phrases is insufficient, especially where those phrases do not positively encourage the child to go with the other parent; and
(i)the primary parent is “not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance”; see Stevenson at [8].
The meaning of reasonable excuse
If I am satisfied that the mother contravened an order, either intentionally or by making no reasonable attempt to comply, I must then consider – as pleaded by the mother in the alternative – whether she has a reasonable excuse for the contravention. The mother bears the burden of establishing she has a reasonable excuse.
Pursuant to s 70NAE(2) of the Act a respondent to a contravention application will be taken to have a reasonable excuse if they did not understand the obligations imposed by the order, or if the Court is otherwise satisfied the respondent ought be excused.
Subsection 70NAE(5) of the Act provides that in relation to an order for a child to spend time with the other parent that has been contravened, a respondent will have a reasonable excuse if they believed on reasonable grounds:
(a)that not allowing the time was necessary to protect the health or safety of the child or other person; and
(b)the period of contravention was not longer than necessary to protect the child or person’s health or safety.
Accordingly, it is not a question of whether the respondent was of the view that the carrying out of the order was not in the child’s best interests. Rather, the Court must be satisfied that the respondent believed it was necessary to protect the health or safety of someone, and that belief must be reasonable. Otherwise, the mother must establish some other basis upon which she ought be excused.
There will of course be cases where a child is so distressed that it would not be unreasonable for time to not occur. As observed by Riethmuller J in Stamp at [24] the distress of a child “may give rise to a claim of reasonable excuse, if it results in risk of harm to the child’s emotional wellbeing”. I agree with his Honour’s observations in that case and in TVT & TLM [2006] FMCAfam 20 at [40] that the circumstances in which a child’s distress might amount to a reasonable excuse are likely to be rare unless there has been something untoward that has occurred between the making of the orders for time, and the non-compliance with those orders. If otherwise, per Stamp at [24] non-compliance;
…would simply be a flagrant challenge to the findings of the Court when making the contact orders as the original orders must have been found by the Court to be appropriate parenting orders at the time they were made;
It is notable that in the extant matter, the contraventions occurred in December 2022 and January 2023 – very shortly after the orders for makeup time and the resumption of holiday time were ordered by Gill J on 2 December 2022.
THE FIVE ASSERTED CONTRAVENTIONS
Count 1 – 10 December 2022
Count 1 asserts a breach of Order 10(a) of the orders dated 2 December 2022, as follows:
(a)the mother refused to facilitate Z spending any time with the father on 10 December 2022; and
(b)that day the mother delivered the children two hours late.
The application by the father on the day of the hearing to separate these into two discrete counts was opposed by the mother. Given the length of time the matter has been on foot, the many opportunities the father has had to seek that amendment at an earlier stage, and the potentially significant consequences that may flow from a finding that the order has been contravened, that oral application was refused. Accordingly given the manner in which the count has been drafted, both limbs of the count must be proven in order to make out the contravention.
The father deposed that on 10 December 2022 he arrived at the police station at around 9.00 am to spend time with the children in accordance with the orders of 2 December 2022. Whilst the mother suggested in text messages that she and the children were at the police station, she acknowledged in her oral evidence she did not actually arrive at the police station with the children until after 11.00 am.
Only the boys then left with their father. Z did not. She remained beside her mother during the attempted changeover. She can be heard crying on the video footage that the mother tendered. The father accepted in his oral evidence that he did not want to cause a scene and wanted to put an end to any distress Z may have been feeling, which is why he elected to leave without her.
In relation to the late provision of the children, the mother said she had a reasonable excuse. She said on the advice of the police, she was waiting for the father to be served with the Temporary Protection Order (“protection order”) made in late 2022, to which the father was the respondent, before providing the children to him.
The father acknowledged he was served with the protection order at the police station on that morning – and that appears to have occurred at around 9.00 am. I do not know when the mother was advised as to the protection order having been served.
In the AppClose communications between the parties and tendered at Court, the father asked repeatedly whether the mother was coming. At 10.38 am the mother responded:
[Z] is not well and does not want to come, trying to get her to come.
She has had sore throat cough last few days
(as per the original)
At 10.39 am the father advised he did not accept that as an excuse.
The mother wrote at 10.44 am that the father had to be served with the protection order first. At 10.46 am the father responded:
The police officer told u I’ve been served
According to those messages, the mother told the father at 10.50am that she now knew the father had been served. She also wrote:
I’m trying to get kids to come they don’t really want too
(as per the original)
Again via AppClose messages, the mother advised the father she was at the police station at 11.09 am. She then wrote “Meet in there 10 mins” also at 11.09 am.
Mr FF deposed that he, the mother and children arrived at the police station at around 11.00am. He deposed:
It is my understanding that Officers from the [Town R] Police Station advised [the mother] the previous night not to attend the station for the visit as they planned to serve Family Violence Order papers on the father…before she arrived and to await their phone call.
Although Mr FF does not say how he came to that ‘understanding’, he was not challenged on this matter.
I accept the mother’s evidence, together with that of Mr FF, that the police advised her to not attend at the police station until service had occurred. That does, in my view, reasonably explain why she was not present at the police station at 9.00 am as required under the orders. It is regrettable that she was so directed by the police, as it does not appear to me to have been necessary for the changeover to have been delayed in the circumstances.
I do not know at what time the mother was contacted by the police and advised the protection order had been served. She did know by 10.50 am, and she and the children attended the police station reasonably shortly after that. In all the circumstances I am satisfied the mother had a reasonable excuse for not being present with the three children at the police station at 9.00 am on 10 December 2022.
As that second limb of count one cannot be made out, the count must fail. It is unnecessary for me to determine the first limb.
Count 2 – 11 December 2022
Count 2 asserts a breach of Order 10(a) of the orders dated 2 December 2022 – that the mother without reasonable excuse refused to facilitate Z spending time with the father on 11 December 2022.
It is agreed that on 11 December 2022 only the younger boys were provided for time and Z was not present with the boys at the point of changeover.
The mother denied this count. She stated that she had made reasonable attempts to comply with the order. If this was not accepted by the Court, then she asserted that she had a reasonable excuse being Z’s state of distress and that she did not wish to attend.
The father deposed he attended the police station for changeover at around 8.50 am, and the mother arrived with W, Q and Mr FF at 9.00 am. Z was not presented with the boys at 9.00 am for the changeover. The mother said Z remained in the car at the police station and refused to leave the vehicle.
For the following reasons I am not satisfied the mother made a reasonable attempt to comply with the order in so far as it related to Z on 11 December 2022. Whilst the mother drove Z in the car to the police station, there is no evidence that she took any further steps to encourage Z or ensure that Z attended with her brothers. There was no evidence that the mother made it plain to Z that she was required to spend time with her father, that she should go, that the Court had ordered her to go or that she was required by law to attend.
In her oral evidence the mother conceded that she asked the children on each occasion whether they want to spend time with their father. She was unable to say she had ever squarely directed the children that she expected or required them to spend time with him. She said she had told them that they “can go and see dad and have some fun”. That is insufficient to meet her obligations.
The evidence of Mr FF in relation to Z’s non-attendance on 11 December 2022 was that “[Z] was crying in her mother’s car and refused to go on the visit”. Mr FF did not depose to the mother making any endeavours at all to have Z leave the car and spend time with her father. There was no suggestion that the mother made it clear to Z that the mother expected her to attend time with her brothers. There was no evidence that the mother sought to exercise any parental authority over Z and require her to attend. There was no evidence that the mother took any steps to actively encourage Z to leave the car and go to her father.
As set out, the mother also relied on an affidavit from her mother who was not required for cross examination. Ms EE deposed that on 10, 11 and 28 December 2022 the mother, and her parents “spent considerable time encouraging the children to get ready for a visit with their father”. There was no specific evidence provided as to what words were said, or how the adults attempted to encourage the children – or Z in particular – on 11 December 2022.
Ms EE also deposed:
[Z] would cry and say words to the effect "no, I do not want to go with him. I am scared of him. He has hurt me and he has hurt my mum." She would then start crying and refuse to get ready. Eventually we persuaded her to get in the car.
It is unclear what day Ms EE is referring to. What is missing is any suggestion that the mother took steps to reassure Z, to encourage Z to attend, or that the mother informed Z that the mother required Z to attend.
Ms EE also did not attend the police station and accordingly can provide no evidence as to what steps, if any, the mother took to comply with her positive obligations under the parenting orders once at the changeover venue.
In all the circumstances I find beyond reasonable doubt that the mother made no reasonable attempt to comply with the orders and deliver Z for time with her father on 11 December 2022 as she was required to do.
Accordingly, it falls to the mother to establish she had a reasonable excuse. For the following reasons, I am satisfied beyond a reasonable doubt that the mother had no reasonable excuse for not providing Z for time with the father on 11 December 2022.
First, there was no suggestion that the mother did not understand her obligations under the order.
To the extent that the mother might have claimed she misunderstood her obligations to ensure compliance and believed compliance was subject to the children’s views, I reject that argument. The parties’ older daughter Y is not included in the orders for time with the father in the final parenting orders. Rather, those orders provide that she and her older brother will spend time and communicate with their father “in accordance with their wishes”. The mother accordingly was fully aware that whilst Y’s time with her father was in accordance with her wishes, that was not the case for the younger three children.
In relation to whether the mother reasonably believed that withholding Z was necessary to protect her health and safety, the evidence falls short. In her affidavit the mother said of 11 December 2022 only as follows: “[Z] was in attendance but would not get out of the car to go with the Father”.
In relation to the children’s asserted distress the mother deposed only:
The children were visibly upset and the entire handover on both 10 December and 11 December 2022 were recorded which can confirm this.
There was no recording of Z on 11 December 2022.
I have already set out the evidence of Mr FF – being that Z was crying in the car and refused to go.
The evidence of Ms EE was that Z said she would ‘run away’ if she had to go with her father. However, Ms EE did not provide any date at which Z was asserted to have made that comment. Ms EE otherwise deposed that Z was crying when she came home after the boys were dropped off, and that she “felt sad for the boys having to go as she was afraid their father would hurt them”.
The level of distress the mother and her parents say Z displayed on 11 December 2022 was not to the extent it could support a finding that it was reasonable for the mother to withhold Z that day. There was no evidence that she was so distressed that this was necessary in order to protect her health or safety.
Nor did the evidence of the mother support a finding that the mother had any other reasonable excuse to not provide Z on that date. Rather, the evidence of the mother and her parents falls well short of demonstrating that the mother had a reasonable excuse for Z’s non-attendance on 11 December 2022.
The orders for the three children to spend time with their father on 10 and 11 December 2022 were only made on 2 December 2022 – less than two weeks earlier than the failed changeover. At that time the Court was satisfied it was in the children’s best interests to spend time with the father on the weekend on 10 and 11 December 2022. There was nothing to which the mother deposed that had occurred in the intervening days, or on 10 or 11 December 2022 upon which she could rely as a reasonable excuse. That the mother disagreed with the orders made by the Court does not constitute a reasonable excuse.
This ground is proved.
Order 11 of the Count 3 – 27 December 2022
Count 3 alleges a breach of Order 11 of the orders dated 2 December 2022. It is asserted that on that day the mother refused to facilitate the children spending time with their father.
The mother admitted the children did not spend time with their father on 27 December 2022. She said however that she made reasonable attempts to comply with the order. Alternatively, she asserted she had a reasonable excuse for the children’s non-attendance, being the level of the children’s distress and the father’s poor behaviour towards her at the attempted changeover.
The father arrived at the police station at around 9.00 am. The mother was not present with the children. She sent him a message via AppClose at 9.31 am in which she said
Trying to get everyone ready they were feeling unwell last night and don't want to go, and since you didn't discuss where to meet or anything about this I actually thought it was tomorrow
As you don't communicate important things
The operative orders – of 2 December 2022 were quite clear. Time was to commence on 27 December 2022 at 9.00 am. Those orders provided that the mechanism for changeover was to be as set out in the orders of 30 September 2021. Those orders provided that changeovers were to be at a contact centre booked and paid for by the mother, or at a place agreed in writing, or otherwise at the police station. There was no suggestion that the mother had booked and paid for a contact changeover centre for changeover on 27 December 2022 – indeed she deposed that the father had not, at the relevant time, completed the enrolment at the centre. There was no suggestion the parties had agreed in writing to any other changeover location. The mother also deposed that “when changeover was not at [the contact centre] it was at the Police Station”.
Accordingly, there was no reasonable basis upon which the mother could have formed the view – or been confused in any way – that changeover might occur the following day or at any location other than the police station.
The mother was still not at the police station by 9.44 am. She sent another message as follows:
Trying to get [W] and [Z] to come they don't want to
Also they asked who is with you
[Q] is saying his sick and tired doesn't want to go either
Just have [Z's] bug neighbor had covid but tests are negative so far
Then at 9.59 am she wrote:
They asked who is with you
I'm trying [Q] said he wants to sleep he feels sick
[Z] and [W] still refusing
Yes bribery doesn't work you needed to build a relationship with them not ignore them for years,
nothing about this is child focused
The mother’s reference to bribery arose from her complaint that the father had provided the children with presents when they spent time with him earlier that month and that he had promised them more presents if they continued to do so. She continued in the following message to insist the father did bribe the children with toys.
The mother had still not arrived by 10.13 am when she sent the following message:
I'm trying [Q] is feeling really sick
I'll let you know when I can get them in the car as still don't want to go
In the messages the mother maintained the children were unwell – with “cold symptoms”. She also acknowledged in those messages she had not obtained medical certificates with the implication being that the children were not sufficiently unwell that they required medical attention.
At 10.27 am the mother again sent a message saying Q was not feeling well and she was still “trying to get kids in the car”. She also wrote “You are been [sic] ridiculous”.
The mother attended at 10.55 am with the children at the police station.
It was the mother’s evidence that she was late as it had taken her “nearly 2 hours to encourage and persuade [the children] to get in the car to go for the handover”. The mother did not depose to what she actually did or said to encourage and persuade the children. Nor did she give any oral evidence as to what she actually did or said to positively encourage the children to spend time with their father on that occasion.
The mother tendered a video recording of the attempted exchange. The footage is of the pavement, so none of the children’s or adults’ faces can be seen. The audio is at times difficult to hear because of the wind. What is abundantly clear however is that the mother made no effort to encourage the children to leave with their father. Instead, she undermined the handover process, referring to the father not paying child support, insisting that the children did not want to leave with their father, refusing to walk away and leave the children in the father’s care, accusing him of coercive control and requesting the police attendance.
The father said when he saw the children arrive, they were happy and smiling. That was denied by the mother who said the children were quiet, visibly upset and clung to her. I cannot see the children’s faces on the video recording the children. Whilst the children appear to make some complaints, they cannot be heard on the audio to be significantly upset or crying.
In the video footage the father can be heard encouraging the children to leave with him. One of the boys said he will miss his mother, and the father reassured the child they would be back that afternoon with their mother and they would have a fun day together. The mother said nothing at that point to encourage the children. Instead, she interjected to say the children did not feel well and then referred to the father ‘taking all her money’ from her. She went on to say “well that’s the truth [Mr Fermikis]. You don’t pay child support.” The mother in her affidavit specifically – and inaccurately – denied mentioning child support.
The father directed the conversation back to changeover, and again tried to encourage the children to leave. Again, the mother cannot be heard saying anything to encourage the children to leave with their father. Instead, she referred to using a changeover centre, which she said was busy until the following year.
When the father told the children that they are “on the orders” and that they have to come because that is what the judge said, the mother interjected and said “well that’s coercive behaviour, can you bring the police out please?”.
The father again asked for the children to be placed in his care and the mother responded “they are saying no, [Mr Fermikis]”. The father reminded the mother that the three younger children were not old enough to make the decision as to whether they want to spend time with their father and asked her to walk away. The mother refused, saying “no, that’s not how it works” and again said “they are saying they don’t want to go [Mr Fermikis]”.
The mother then directly asked the children “what do you want to do guys?”. She asked this several times and told the father several times that they children to not want to go with him, that the children were saying no they did not want to come. She raised her voice.
In her affidavit the mother specifically denied claiming that the children did not want to see their father. That was quite clearly incorrect – she made that statement on multiple occasions in front of the children at that changeover.
The father continued to try to encourage the children, saying that he loved them, to put whatever they had been told out of their heads and to come with him and have fun. The mother again did not say anything positive at all to the children to encourage compliance. She did not direct the children to leave with their father.
The mother deposed that the father did not do or say anything to attempt to persuade the children. That was also clearly incorrect. The father can be heard repeatedly trying to encourage the children. As already set out when he referred to them being obliged by the orders to attend, the mother accused him of using coercive control.
Although it was not audible on the video recording that was tendered, the father acknowledged that at some point he did say he did not want to hear anything out of the mother’s “foul mouth”. He also acknowledged in his oral evidence that was not an acceptable thing to have said and that it likely upset the children.
This entire conversation took place in front of the children.
I do not accept the mother’s evidence that she had spent two hours trying to genuinely encourage and persuade the children to attend the changeover prior to her arrival. Her recall of that day was poor. She did not provide any evidence as to what specifically she did or said to encourage the children to spend time with their father.
I am also satisfied that at the point of changeover she failed to take any positive steps to encourage the children to leave with their father. Rather she actively undermined the process.
In all the circumstances, I am satisfied beyond a reasonable doubt that the mother failed to fulfil her obligations to positively encourage the children to leave with their father at the changeover on 27 December 2024, and she made no reasonable attempt to comply with the order.
In relation as to whether the mother had a reasonable excuse, I note first I am satisfied that the mother understood her obligations under the order.
Following the unsuccessful changeover on 27 December 2022 the parties’ AppClose communications were as follows:
(a)At 11.21 am the father wrote:
Are you going to come tomorrow and change over
Standing there with them and saying they don't want to come makes the children feel they have to do what you say
Are you going to change children over tomorrow without issue as it's ridiculous paying [accommodation] travel etc only to have this occur
The children obviously love me but followed your lead and it's hurting them
(b)At 11.59 am the father wrote:
Could you please respond to allow me recover some accommodation costs and not stay here if you're not
(c)At 1.06 pm the mother wrote:
I have every intention of facilitating handover of the 3 youngest children over the next 4 days. Of course this requires that the children are willing to go with you. Please do not shout, coerce and bribe the children tomorrow as you did this morning. The key is that the children must go willingly.
Your shouting and verbal abuse contributed significantly to the children's fear of proceeding on their visit with you.
To the extent that the mother might argue she misunderstood her obligations – and that the time was subject to the children’s wishes – that argument is rejected for the reasons already outlined.
I also reject the mother’s suggestion there was a lack of clarity as to where the changeover on that day was to occur for the reasons already set out.
I accept that the father’s comment about the mother’s “foul mouth” would have upset the children – but I do not accept that his comment provided a reasonable excuse to withhold the children. The video recording does not support the mother’s assertion that the father was shouting, or her assertion that the children were fearful or distressed. There is insufficient evidence to satisfy me that the children’s level of distress was such that withholding any of them was necessary to protect their health or safety. This has simply not been made out. There was no evidence that would otherwise support a finding of reasonable excuse.
Accordingly I find this count proved.
Count 4 – 28 December 2022
Count 4 asserts the mother breached Order 11 of the orders dated 2 December 2022 by refusing to facilitate the children spending time with their father on 28 December 2022.
The mother conceded the children did not spend time with their father on that day. However, she denied she had contravened the order as she had made reasonable attempts to comply. In the alternative she claimed she had a reasonable excuse.
The father arrived at the police station at around 9.00 am. The mother, Mr FF and the children arrived shortly thereafter.
The video recording tendered by the mother again mostly showed only the ground. The father said the boys were smiling at him and seemed eager to be permitted by their mother to walk over to him. The father can be heard saying hello to Y, and then saying “come on kids, come on”. Mr FF immediately – and inappropriately – asked “do you want to go with dad?” The mother also immediately asked the children the same question. Neither of them directed the children to go with their father. Neither of them told the children they were required to leave with their father. Neither of them told the children they would go with their father and have a good time.
Mr FF then walked over to the father. Whilst they were conversing, the mother can be heard saying, presumably to the children, “you can stay, it’s okay” and then she again asked the children “do you want to go with dad?”. One child – who sounded mildly upset – said they would go if another child also went. The mother again asked if they wanted to go and Mr FF walked back to the mother and children and also asked the children again if they wanted to go with their father. The mother and Mr FF then proceeded to individually ask each child if they wanted to go with their father. At no time did the mother tell the children she expected or required them to go. It was abundantly clear that she did not so expect or require them to attend.
As to positive encouragement, at its highest Mr FF suggested to Q he could go over and say hello to his father, and then said “you’ll have a good time with your Dad”. Presumably to W, Mr FF said Q would go if he would also go. Mr FF could also be heard saying “wave to your dad”. That is the high point of any positive encouragement given to any of the children on that video recording to communicate in any way with their father.
Mr FF then said “look they don’t want to come” which he then repeated twice more, in quite a forceful tone. The father said the children were to spend time with him whether they wanted to or not. Mr FF said “we will try again tomorrow”. The mother and Mr FF left with the children shortly thereafter.
There is no evidence at all that the mother took any steps to positively encourage the children, or any of them, to attend time with their father beyond bringing the children to the changeover point. It was, in my view, entirely inappropriate that she and Mr FF repeatedly questioned the children as to whether they wanted to spend time with the father. The incontrovertible evidence of the video exchange made it absolutely clear that at the changeover venue, the mother’s conduct fell well short of the discharging her obligations to positively encourage the children to comply with the orders.
Accordingly, I am satisfied beyond a reasonable doubt that the mother made no reasonable attempt to comply with the orders on 28 December 2022.
In relation to the mother’s assertion she had a reasonable excuse, her evidence was that the children were very distressed and did not want to go with the father despite encouragement by her and Mr FF. As already set out, I am not satisfied the mother encouraged the children. Whilst I cannot see the children’s faces on the video footage, they are not heard to be crying or overly distressed. Z is heard to speak quite calmly saying she cannot attend as she has a doctor’s appointment. She did not sound at all upset or distressed. Moreover, Mr FF did not record anywhere in his evidence that the children were upset or distressed on 28 December 2022. He said only that the children were not willing to attend, and that they “largely clung to [the mother]”.
In all the circumstances the mother has not established she had a reasonable excuse for the children’s non-attendance that day.
Accordingly, I find this count also proved.
The father did not attend further changeovers on 29, 30 and 31 December 2022 as there seemed little point in light of the mother’s behaviour at changeovers on the previous attempts.
Count 5 – 16 January 2023
Count 5 asserts the mother breached Order 3(b)(i) of the orders dated 30 September 2021 being that on 16 January 2023 the mother failed to facilitate time with the children.
It was admitted by the mother that the children did not spend time with their father on that date. However, the mother denied she had contravened the order as she made reasonable attempts to comply with it. In the alternative she said she had a reasonable excuse.
It was common ground that the father had arranged to travel to Town R to spend time with the children, and that the mother had indicated to the father that she would be at the police station at midday for changeover on 16 January 2023.
The father attended the police station at around 11.30 am and the mother arrived at around 12.00 pm with the children and Mr FF. Once again, the mother tendered a recording of the changeover attempt. It commenced with one of the boys calling out, in an excited voice “it’s my dad!”. The mother, the children and Mr FF then waited outside the police station. The children – from what I could see – appeared to be reasonably relaxed. They were not crying. They were not clinging to their mother.
It appears that the father was inside the police station.
Shortly after the mother’s arrival, an officer walked out from the police station and approached her. The police officer said “he was just explaining some sort of agreement” before being cut off by the mother who said “no, there was no agreement”. The police officer mentioned using a contact changeover service, where they have better facilities. The mother said “he knows that” and then said “he’s making stuff up again”. The police officer asked if the mother was seeking anything else from the police, to which the mother said “no, just maybe talk to you later about the breach that’s still outstanding”. The police officer then asked whether the changeover would be facilitated by the father walking out and leaving with the children, to which the mother responded:
Well it is, but the children aren’t really keen on going and so, um I’ve spoken to child protection about this matter as well so obviously they have to go free and willingly.
The children were present with the mother throughout this conversation.
The mother and the police officer then discussed using a changeover service, which the mother said she wanted to use, but they were not available on Mondays.
The father then came outside from the police station. The father called to the children and encouraged them to leave with him. He asked the mother to direct the children to leave with him, which she did not do. She said “you can’t tell them to do that”. In the exchange the mother did and said nothing to positively encourage the children. Rather, she discouraged them. She told the father “you can’t threaten them” – which he evidently had not done. When the father asked if he could step closer towards the children, the mother held up her hand, and said “no, I’ve got PTSD”.
The police officer then also said if the children were not willing to go, there was nothing he can do.
The father asked the mother if she would be changing the children over. The video recording revealed the following exchange:
Father:If you’re not changing the children over then can you leave. Are you changing the children over, yes or no?
Mother: Well I’ve brought them here. Would you like to go with dad?
Unknown child: No.
[Ms Fermikis]: Would you like to go with dad [W]?
[Z]?
[Y]?
[Y]: No, in the court orders I choose not to
…
The father then again requested the mother to leave. He said again, “so you’re not changing them over”. The exchange continued;
Mother: I’ve brought the children here for changeover [inaudible].
Father: Okay, then come on kids. You either change them over, if they don’t want to come you make that decision at home and not come to the police station.
Mother: I’m following the Court orders bringing the children to changeover.
[Mr Fermikis]: Then change them over, not to ask do they want to come or not, okay? That’s not part of the order. It’s to change the children over.
The parties engaged in a further discussion about using a contact changeover service. The mother again asked the children “so are you going to go with dad?” The father again tried to encourage the children – telling them they would have fun, and that his accommodation has a hot tub. The mother did not attempt to encourage or reassure the children. She said “okay, so nobody wants to go? Are you sure?”
At no point did the mother tell the children that they were to leave with their father, that she expected them to go, or that they would have positive time with their father. The mother made no more than token attempts to facilitate changeover.
The father again asked why the mother brought the children to the police station if she would not then facilitate a changeover. The mother said she was following Court orders and doing what she was told “because you’re threatening jail, so I have to”. Again the children were present throughout this conversation.
Shortly after, the mother left with the children. It was the mother’s evidence they were becoming distressed, and a police officer attending had told her that they children should not be forced.
Although not the subject of submission at the hearing before me I am satisfied that the mother was bound to make the children available on 16 January 2023. Order 3(b)(i) of the primary order – made on 30 September 2021 provided that the children spend time with their father during Queensland school holidays as follows:
During Queensland school holiday time:
(i) Following the father spending the time with the children in accordance with Order 3(a)(i)B above on three occasions and with at least two visits occurring on consecutive calendar months (whichever is the later) then for five days commencing at 12.00 pm on the first day of the period elected by the father in accordance with Order 4 and ending at 12.00pm on the fifth day of that period;
(emphasis added)
It is not in dispute that time did not occur in accordance with Order 3(a)(i)B on three occasions with at least two of those visits occurring on consecutive calendar months. However, Order 6 of the orders of 30 September 2021 provided that:
For the purpose of transition in the periods of time as set out in Order 3, in the event that [Z], [W] and [Q] are not provided to the father in accordance with an election made pursuant to Order 4, the children shall be deemed to have spent the time with the father as provided for in Order 3.
Accordingly I am satisfied that the mother was bound to provide the children on 16 January 2023.
I am also satisfied that the mother did not take reasonable steps to comply with the order.
The act of merely bringing the children to the point of exchange alone does not, in this matter, amount to reasonable steps to comply. The mother’s evidence and that of Mr FF was that the mother and her family did “encourage the three children to engage in the visit” before driving there, and that Mr FF also provided encouragement “during the short drive”. However, neither the mother nor Mr FF give any particulars at all to what that ‘encouragement’ comprised of. At its highest Mr FF said in his oral evidence that on the way to changeovers he would have said things to the children along the lines that they would have a good time.
I accept the father’s evidence that none of the children had overnight bags with them when they arrived outside the police station, notwithstanding they were meant to be staying with their father for five nights. This strongly supports the father’s contention that the mother had no intention of facilitating changeover.
Even if the mother had established she “encouraged the children” to “engage in the visit” before leaving for changeover, once at the point of exchange she did nothing further to facilitate the changeover. Instead, she placed the children in the centre of the parental dispute, asking them repeatedly whether they wanted to go, and then having extracted their refusals, said there was nothing further she could do. The attempts by the father to encourage were wrongly characterised by her as threats.
I find beyond a reasonable doubt that the mother made no reasonable attempt to comply with the order.
I am also not satisfied that the mother has established any reasonable excuse for the children’s non-attendance. There was no evidence other than the mother’s assertion that the children were distressed on that particular day. Other than responding to the mother’s questions the children barely spoke or made audible sounds during the exchange. Mr FF also did not suggest the children were highly distressed or upset. At the highest, the children were reluctant to transition into their father’s care. In circumstances where there was no reasonable attempt by the mother to facilitate that transition, that cannot amount to a reasonable excuse.
I find this count proved.
DISPOSITION
Counsel for the mother submitted that the mother was doing all she could to comply with the orders, but given her mental health vulnerabilities, and in particular her Post Traumatic Stress Disorder (“PTSD”), it may be that she did not have the capacity to do more to ensure compliance. However, the mother adduced no medical evidence to support a finding that she has PTSD, or that the impact on her would be such that she was unable to make reasonable attempts to comply with the orders, or that this provided her with a reasonable excuse for her non-compliance. The matter has been on foot for a protracted period and had the mother wished to adduce that evidence – at least in relation to whether that provided her with a reasonable excuse – she had ample time to do so. Accordingly, that submission cannot be given weight.
As set out the first count will be dismissed.
However, I find beyond reasonable doubt that the mother has contravened the orders as otherwise pleaded on the next four counts and that she had no reasonable excuse to do so.
It is extremely troubling that the orders of the Court have continued to be contravened by the mother even in circumstances where she is already on a bond. The terms of that bond required her to be of good behaviour, and to comply with the Court orders.
As indicated it is the father’s case that these contraventions are more serious and attract the provisions of Div 13A, Subdivision F of the Act. It may well be that the father seeks a term of imprisonment in order to secure compliance with the orders.
The matter will be listed as soon as practicable to consider what other orders should be made by the Court.
I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 19 December 2024
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