Fermikis & Fermikis

Case [2021] FedCFamC1F 90

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fermikis & Fermikis [2021] FedCFamC1F 90

File number: CAC 498 of 2012
Judgment of: GILL J
Date of judgment: 30 September 2021
Catchwords: FAMILY LAW – CHILDREN – RESIDENCE – Best interests of child – Risk – Family violence issues – Parental responsibility – Whether children to remain living with the mother in different State to the father – Whether father to spend unsupervised time with the children.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA
Cases cited:

Jollie & Dysart [2014] FamCAFC 149

Marsden & Winch (No 3) [2007] FamCA 1364

Mazorski & Albright (2007) 37 Fam LR 518

Morgan & Miles (2007) FLC 93-343

M v M (1988) 166 CLR 69

Taylor & Barker (2007) FLC 93-345

U v U (2002) 211 CLR 238
Division: Division 1 First Instance
Number of paragraphs: 439
Date of hearing: 28 September – 2 October 2020; 8–9 February 2021
Place: Canberra
Counsel for the Applicant: Dr Leslie
Solicitor for the Applicant: Stanfords Solicitors
Counsel for the Respondent: Mr Howard
Solicitor for the Respondent: Neilan Stramandinoli Family Law
Counsel for the Independent Children's Lawyer: Mr Haddock
Solicitor for the Independent Children's Lawyer: Boland Legal Family Lawyers

ORDERS

CAC 498 of 2012

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

MS FERMIKIS
Applicant
AND:

MR FERMIKIS
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

GILL J

DATE OF ORDER:

30 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.Y born in 2009, Z born in 2013, W born in 2015 and Q born in 2017 (“the children”) shall live with the mother.

2.The mother shall have sole parental responsibility for the children.

3.Subject to the father complying with Order 4, the father shall spend time with Z, W and Q as follows:

(a)During Queensland school term time in Queensland:

(i)On one weekend each calendar month:

A.Initially on a consecutive Saturday and Sunday from 11.00am until 4.00pm;

B.Following the father spending the time with the children in accordance with Order 3(a)(i)A above on three occasions and with at least two visits occurring on consecutive calendar months (whichever is the later) then from 11.00am Saturday until 4.00pm on Sunday;

C.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 from 6pm Friday until 4.00pm on Sunday;

(b)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;

(ii)Following the father spending time with the children in accordance with Order 3(b)(i) above on two occasions then for a…

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Fermikis & Fermikis [2021] FedCFamC1F 90
Case
[2021] FedCFamC1F 90
Decision Date

CaseChat Overview and Summary

In the matter of Fermikis & Fermikis, the court was tasked with determining the living arrangements for the four children of the relationship. The primary concern was the risk of family violence, particularly the mother's allegations against the father, which included claims of sexual assault and abuse. The court had to balance the competing interests of the parents and the best interests of the children, considering the evidence presented by both parties.

The legal issues before the court were whether the children should remain living with the mother in Queensland or return to Victoria to live with the father, and if the father should be granted unsupervised time with the children. The court had to weigh the credibility of the mother's allegations against the father and the potential impact of these allegations on the children's relationship with their father. The court also had to consider the father's capacity to travel to Queensland to spend time with the children and the need for the children to maintain a relationship with both parents.

The court concluded that the mother's allegations were not credible enough to warrant a change in the children's living arrangements. The court found that the mother's credibility was undermined by her inconsistent statements and the lack of corroborating evidence. The court also found that the father's capacity to travel to Queensland was uncertain, but his commitment to spending time with the children was commendable. The court ordered that the children would continue to live with the mother in Queensland, but the father would be granted unsupervised time with the children, starting with monthly visits transitioning to holiday time. The court also ordered that the father complete a U Services program and an anger management course.

The court's orders aimed to support the children's relationship with both parents while ensuring their safety and well-being. The court recognised the importance of the children maintaining a relationship with their father and the need for the father to be actively involved in their lives. The court also recognised the risk that the mother may undermine the father's relationship with the children and took steps to mitigate this risk. The court's orders reflected a balanced approach that prioritised the best interests of the children while respecting the rights of both parents.

Orders

Orders of the court

CAC 498 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FERMIKIS

Applicant

AND:

MR FERMIKIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

GILL J

DATE OF ORDER:

30 SEPTEMBER 2021

THE COURT ORDERS THAT:

1. Y born in 2009, Z born in 2013, W born in 2015 and Q born in 2017 (“the children”) shall live with the mother.

2. The mother shall have sole parental responsibility for the children.

3. Subject to the father complying with Order 4, the father shall spend time with Z, W and Q as follows:

(a) During Queensland school term time in Queensland:

(i) On one weekend each calendar month:

A. Initially on a consecutive Saturday and Sunday from 11.00am until 4.00pm;

B. Following the father spending the time with the children in accordance with Order 3(a)(i)A above on three occasions and with at least two visits occurring on consecutive calendar months (whichever is the later) then from 11.00am Saturday until 4.00pm on Sunday;

C. 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 from 6pm Friday until 4.00pm on Sunday;

(b) 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;

(ii) Following the father spending time with the children in accordance with Order 3(b)(i) above on two occasions then for a period of eight days commencing at 12.00pm on the first day of the period elected by the father in accordance with Order 4 and ending at 12.00pm on the eighth day of that period;

4. Each period of time with Z, W and Q as referred to in Order 3 shall occur at times in accordance with the election of the father to be provided in writing (including by electronic communication) to the mother no later than twenty eight days prior to the first day of each period.

5. Following the commencement of overnight time the father shall be at liberty to nominate by his election in Order 4 periods of time shorter than those provided for in Order 3.

6. 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.

7. Order 6 does not derogate from any other remedy available to the father in respect of the mother’s non-compliance with the orders.

8. Handovers for the purposes of Order 3 are to occur as follows:

(a) At a contact handover centre booked and paid for by the mother and advised to the father 14 days prior to the handover; or

(b) At a place agreed to in writing (including by electronic communication) between the parties; or

(c) Failing the mother complying with Order 8(a) and failing agreement between the parties under Order 8(b), at the R Town Police Station at S Street, Suburb T.

9. The father shall forthwith enrol into and complete:

(a) A U Services program and provide the mother via email a certificate of completion; and

(b) An anger management course and provide the mother via email a certificate of completion.

10. The parties shall notify each other immediately or at least within one (1) hour of any medical emergency involving any of the children.

11. Neither party denigrate the other or members of the other’s family in the presence of the children and shall use their best endeavours to ensure that no other person does so.

12. The children, including Y, shall be at liberty to communicate, whether by telephone or otherwise, with either parent in accordance with their wishes.

13. The parties shall communicate via an agreed parenting application with such communication to be restricted to matters related to the care, welfare and development of the children.

14. The parties are permitted to contact the children’s doctors or other specialists to obtain any necessary information that parents usually receive in relation to children.

15. The parties are permitted to contact the children’s daycare/school to obtain any necessary information that parents usually receive and in relation to the children’s progress.

16. The mother will notify the father in writing (including by electronic means), of any decisions she makes in relation to the long term needs of the children.

17. The parties are at liberty to vary the time that the children spend with the father by agreement in writing (including by electronic means).

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Accordingly the Court here is obliged to not only give careful consideration to the positions of the parties, but also to alternative arrangements that will better provide for the best interests of the children, to the extent to which such alternatives are before the parties in the proceedings.THE EVIDENCEThe general history of the parties’ relationship The parties initially commenced their relationship in 2000, when the mother was aged 19 years, the father aged 41 years. Their relationship, and the birth of their children took place across two periods, the parties separating during an intervening period during which they litigated in the family law jurisdiction. Little attention was given to the relationship prior to the first separation, which took place in December 2011. Rather, significant emphasis was placed upon events during that period of separation and the reconciliation that followed, and then upon events leading up to and following the second separation in October 2018.The first part of the relationship The mother alleges the first interaction between the parties occurred prior to their relationship, in that prior to the commencement of their relationship, when she was only fifteen years old, the father sexually assaulted her while she was not conscious.[25] [25] Mother’s affidavit filed 18 August 2020, [10]. This allegation was late arriving in the proceedings, and the mother was challenged as to the allegation being a recent invention on her part. The mother’s trial affidavit filed on 18 August 2020 was the first time this allegation was raised in the proceedings.[26] Although the mother asserted that she had spoken about the incident with counsellors, her parents and to police,[27] it remained unclear when the mother first told anyone about this allegation. [26] Mother’s affidavit filed 18 August 2020, [10]; Transcript 29 September 2020, p. 193 lines 29–43.[27] Transcript 29 September 2020, p. 193–4. The mother explained that she did not know that this event had occurred until the father told her about it. Although at [10] of her trial affidavit the mother set out the alleged admission, neither timing nor context was provided,[28] undermining the report of the admission.[28] Transcript 29 September 2020, p. 193–4. The father denied this allegation, and denied that he knew the mother when she was a minor. He was not cross examined about either the alleged admission or the incident itself. The parties commenced their relationship in about 2000. The mother alleged that this followed the father’s proposition to her that he would supply her with drugs for sex. Both the above allegations are wholly reliant on the mother’s credibility, which for reasons later discussed, is insufficient to sustain them. The mother alleges violence during this part of the relationship, including that on 2 May 2003 the father placed his hands on her throat. The father denied having done so. X was born in 2003 and Y in 2009.The first separation

Decision

Reasons for decision

Although there is a risk that the mother will undermine the future relationship between the father and the children, orders should be made to, as best as possible, support such a relationship.CONCLUSION As agreed by the parties the children will live with the mother, and she will exercise sole parental responsibility for them. No order will be made requiring the return of the children to the V City area, although orders will be made to permit the father to spend time with Z, W and Q. Orders will also be made to provide for communication by Z, W, Q and Y with the father. Optimally orders would also be made for family therapy between Y and the father, and for Y to spend time with the father with the other children should she choose to. However, the uncertainty as to the facts that may trigger such an obligation mean that an order mandating such a result should not be made. That does not prevent Y from attending should she choose to. Although there is some doubt as to the father’s capacity to travel to Queensland to spend time with the children, his commitment to doing so to date suggests, despite his own doubts, that if he can find a way to do so he will. In any event, despite his own doubts he sought that orders be made for time even if the children are to remain in Queensland. Given the difficulties with travel, the father will be accorded flexibility in the arrangements, such that he may nominate the timing of the visits. The visits during term time will occur in Queensland, while in school holiday time they will not be restricted to Queensland. The single expert recommended a frequency of visits between monthly and six weekly. Given the uncertainty as to how the father will manage the travel, orders will be made that provide for him to spend time with Z, W and Q, at his election, at up to a monthly frequency to start with, transitioning to holiday time. The monthly time itself will transition from short periods across consecutive days to overnight periods. Given the emphasis on regularity by the single expert, the transition to both overnight time and school holiday time with be contingent upon the father having recently exercised the option to spend regular time with W, Z and Q. Given the mother’s previous non-compliance, in the event that the children are not provided in accordance with the orders, for the purpose of transition they will be deemed to have spent the relevant time with the father. This will not derogate from other remedies that the father might pursue in the event of non-compliance by the mother, but will limit her capacity to undermine the progression of time with the children. These considerations will lead to undesirably complex orders in order to facilitate the development of relationship with the younger children. Ultimately, if the father is unable to travel to Queensland there will be no transition and it may be anticipated that the relationship with the father will not develop. The parties agreed to orders proposed by the ICL that the father take part in programs as proposed by the ICL, being the U Services program, and an Anger Management Course, and to provide the mother with certificates of completion.

Ratio Decidendi

Legal Principle Established

X was born in 2003 and Y in 2009.The first separation The parties separated in about December 2011, commencing proceedings in the Federal Circuit Court. Those proceedings involved allegations that the father was a sexual risk to the children, an allegation later abandoned by the mother before being re-taken up in the current proceedings. A central aspect of the allegation of risk at that point concerned allegations made by the mother in respect of the preparation of the family report, which was authored by Ms JJ, a family consultant at the V City Registry, with the interviews taking place on 10 September 2012. Following the interview sessions with Ms JJ the mother contacted the local welfare agency (CYPS) and alleged that the father had sexually abused Y during the assessment session with Ms JJ. This allegation was not put to the father during his cross-examination. When asked to justify the making of this complaint, the mother explained that X (then aged 9 years) had described that Ms JJ had left Y with the father for a substantial time, that the father had sat beside Y, that Ms JJ had not checked on her and that Y had been upset at what “daddy” had done.[29] While the mother initially said that X gave no indication about what the father had done, she changed her answer to say that something was said about a nappy.[30] [29] Transcript 28 September 2020, p. 76–77. [30] Transcript 28 September 2020, p. 80 lines 10–19. In sharp contrast Ms JJ described that she was with X in another room from the father and Y, for about five minutes, and that she was able to observe Y during this time through the venetian blinds.[31] [31] Exhibit F7, p. 275–77. Ms JJ sought to arrange for a subsequent attendance by the mother and the children, but the mother said that she would not attend. When asked whether she genuinely believed that Y had been sexually abused during the session, the mother said that she believed what the children had told her. It should be observed that when the mother said that she believed the children, nothing that she asserted was said by the children even hinted at sexual abuse. There was no reasonable basis to form a belief that the father sexually abused Y during the assessment process, nor to make such an accusation. In the current proceedings the mother said that she still believes that Y was sexually abused by the father during this assessment process, and that the family consultant was lying. The mother was asked about incidents prior to the interview with Ms JJ that she considered indicated sexual abuse of Y.[32] [32] Transcript 29 September 2021, p. 113. After some prevarication the mother accepted that she had, in December of 2011, taken Y to the general practitioner because she suspected sexual abuse. This suspicion arose from Y suffering from persistent thrush and from Y sometimes kicking out when her nappy was being changed. The mother also said that she had caught the then 9 year old X playing with his penis and was concerned that this might indicate sexual abuse.