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…
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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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