Fermikis & Fermikis (No 2)
[2022] FedCFamC1F 954
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fermikis & Fermikis (No 2) [2022] FedCFamC1F 954
File number: CAC 498 of 2012 Judgment of: GILL J Date of judgment: 2 December 2022 Catchwords: FAMILY LAW – ORDERS – Where the mother accepted that she has contravened court orders for the father to visit the children – Where the mother is to enter three bonds over two years which run concurrently – Where the bonds are to ensure compliance rather than to punish the mother – Where there will be compensatory time for the father and the mother will compensate the father’s previous travel expenses – Where a cost order is made against the mother – Where the mother filed a further Initiating Application – Dismissed per the principles in Rice and Asplund. Legislation: Family Law Act 1975 (Cth) ss 70NDB, 70NEA, 70NFA, 70NFB, 70NFE, 117 Cases: Rice and Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 2 December 2022 Place: Canberra Counsel for the Applicant: Ms Curran Solicitor for the Applicant: Robinson McGuinness Counsel for the Respondent: Ms Chekirova Solicitor for the Respondent: Geldard Sherrington Lawyers ORDERS
CAC 498 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FERMIKIS
Applicant
AND: MS FERMIKIS
Respondent
order made by:
GILL J
DATE OF ORDER:
2 DECEMBER 2022
THE COURT ORDERS THAT:
1.Regarding the contravention of 19 and 20 February 2022, I require you, Ms Fermikis, to enter into a bond for a period of two years, self-surety $1,000 with a condition that you comply with the orders of this Court.
2.Regarding the contravention of 19 and 20 of March 2022, I require you, Ms Fermikis, to enter into a bond for a period of two years, self-surety of $1,000 with a condition that you comply with the orders of this Court.
3.Regarding the contravention of 24 April 2022, I require you, Ms Fermikis, to enter into a bond for a period of two years, self-surety in the sum of $1,000 with a condition that you comply with the orders of this Court, and I direct that the bonds run concurrently.
4.I amend the order for the mother to attend the Brisbane Registry of the Federal Circuit and Family Court of Australia Division 1 on 9 December 2022 and I direct that Ms Fermikis you attend the Brisbane Registry of Division 1 of the Federal Circuit and Family Court of Australia during court hours on Wednesday 7 December 2022.
5.The respondent mother make a payment to the applicant father in the sum of $2,961.18 in compensation for the applicant’s expenses in travelling to R Town, Queensland from V City, UU Region to spend time with the children in accordance with the orders on occasions where the mother did not make the children available without reasonable excuse.
6.The respondent mother pay the applicant father’s costs in the sum of $16,500.
7.For the purposes of the above two orders, the monies payable by the mother to the father are to be secured against the mother’s interest in the proceeds of sale of the property located K Street, Suburb L and currently held on trust by TT Solicitors for the parties.
8.For the avoidance of doubt, time during the 2022 to 2023 summer holiday period shall be in accordance with Order 3(b)(i) of the orders made on 30 September 2021, other than the orders that provide for compensatory time.
IT IS NOTED THAT:
9.The father has provided the mother with notice of his intention to spend time with the children on the weekend of 10 and 11 December 2022 in accordance with Order 4 of the orders made on 30 September 2021.
IT IS FURTHER ORDERED THAT:
10.The substantive orders are varied insofar as in lieu of the father’s time pursuant to order 3(a)(i)(C) on 10 and 11 December 2022:
(a)The children shall spend time with the father from 9.00 am to 5.00 pm on 10 and 11 December 2022 with handover to occur in accordance with the mechanism set out in the substantive orders.
11.By way of compensatory time, the children are to spend five consecutive days with the father commencing on 27 December 2022 and ending on 31 December 2022 with the time to commence at 9.00 am and finish at 5.00 pm on each of those days, save for 31 December 2022, when the time shall commence at 9.00 am and finish at 3.00 pm on that day, with handover to occur on each occasion pursuant to the mechanisms otherwise set out in the substantive orders.
Initiating application 2 August 2022
12.The Initiating Application filed 2 August 2022 is dismissed.
13.The parties are at liberty to provide to Queensland Department of Youth Justice and Multicultural Affairs and VV Services, a copy of the final judgment in this matter of September 2021, along with the reasons and orders of today’s date.
Costs
14.It is ordered that the mother pay the father’s costs in relation to her Initiating Application filed August 2022, as agreed or as assessed.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fermikis & Fermikis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
The father, Mr Fermikis, brings three contraventions before the Court against Ms Fermikis, being contraventions of parenting orders made following a contested trial and pursuant to a judgment of 30 September 2021. Those orders were made in a context where there was an anticipated potential non-compliance by the mother with the orders, the mother having the primary care of the children and where findings have been made as to manipulative and disingenuous use of abuse allegations against the father in respect of the children. The orders provided a scheme for the ramped increase of time between the father and Z, W and Q in a context where the children live in Queensland and the father in UU Region, approximately 1500km apart, in circumstances where the building of a relationship between the father and the children was the function of the orders in order to provide the benefits of meaningful relationship with the father to the children.
The contraventions took place on the weekend of 19 and 20 February 2022, secondly, the weekend of 19 and 20 March 2022 and thirdly, on 24 February 2022, being three periods following the first period post the orders that the father was to spend time with the children, noting that that first period was frustrated by COVID infections.
The mother appropriately quickly conceded that she had contravened the orders in the manner alleged by the father, but until the hearing of today, being 2 December 2022, maintained that she had a reasonable excuse for doing so. In addition to maintaining that she had a reasonable excuse for doing so, she commenced by Initiating Application fresh proceedings.
The mother has now abandoned the assertion that she had a reasonable excuse, and conceded that the three contraventions are without reasonable excuse. She has also consented to the reimbursement of the father’s travel expenses for those three contravention periods, has agreed to costs in a fixed sum, with the monies to be sourced from monies held in trust from the sale of the parties’ home, and has agreed to identification of the point at which the progression in the orders has reached under the orders. The mother also accepts that she should be dealt with by a bond.
While the parties’ agreement to these matters are significant, the matters remain for the court’s determination. In doing so, I acknowledge that the function of contravention proceedings is to ensure compliance rather than to punish, although in causing compliance the Court is furnished with coercive powers, a bond being an example of such powers, a fine being an alternative example, and a sentence of imprisonment being a further example.
It is necessary to characterise whether the contraventions here are less or more serious pursuant to respectively s 70NEA and s 70NFA of the Family Law Act 1975 (Cth) (“the Act”).
Here, where the proceedings had been so recently finally determined where the potential for non-compliance was identified and catered for, where the mother’s non-compliance constituted an immediate and complete barrier to and frustration of the operation of the orders and of the development of the relationship between the father and the children, each of the three contraventions constitutes a more serious contravention in the sense of being a serious disregard of obligations under the primary orders by the mother. That characterisation renders s 70NFB applicable.
Section 70NFB(1)(a) requires that a costs order be made, unless it is contra to the best interests of the children. The consent position of the parties identifies that it is appropriate to make a costs order.
Section 70NFB(2) identifies available sanctions to enforce compliance. As I noted before, there is no resistance to a bond as a response. I accept that a bond is an appropriate disposal of each of these serious contraventions.
Given the effect of the contraventions and their coming hot on the heels of the final judgment, and their demonstration of an ongoing intention to defeat the orders, they are serious matters that attract a bond. Bonds promote adherence to orders.
Ms Fermikis, I need to tell you what the consequences of each of the bonds will be as it is important that you understand that before you enter into the bonds. The consequences of breaching of a bond is that I may revisit this matter, that is, I can come back and deal with you again for the contraventions, potentially imposing a more serious response and a stronger sanction than a bond. There is potential for you to be fined should you breach the bond. Where, as here, the bond is going to be accompanied by an order for surety, I may order the forfeiture of the surety. As there will be three bonds, each with a surety of $1,000 that could see you forfeiting the sum of $3,000.
You should be under no misapprehension that contravention lacks consequences. I consider that it is appropriate to impose a bond in respect of each of the three contraventions to promote enforcement of the orders, being bonds pursuant to s 70NFE. I consider that the bonds should run together such that all can be revisited should there be a breach of the orders. They should not be cumulative as in totality that would provide too long a duration of the bonds. Surety in the sum of $1,000 should be given on each given the funds currently held in trust of the parties. The condition that accompanies the bond is a condition that Ms Fermikis will comply with the orders of this Court. I will direct that the bonds will be required to be entered into within seven days at the Brisbane Registry of this Court.
The balance of the matters requiring consideration that is not agreed by the parties, is whether there should be compensatory time ordered pursuant to s 70NDB. I note that despite the father being entitled to exercise overnight time with the children, pursuant to the current orders on 10 and 11 December 2022, he elects to merely exercise day time periods. This appears to be a child focused approach. He has invited me to make orders amending the current orders to provide for it to be daytime periods only on 10 and 11 December 2022.
I note that in the coming school holidays he is entitled to exercise time across five consecutive school days and nights. While the compensation initially sought for a block of overnight time the father has moved away from that position, and rather has adopted a position that compensatory time should be for a period of five consecutive days from 9.00 am to 5.00 pm on each of those days save the last day on which it should be from 9.00 am to 3.00 pm. This is an appropriate compensatory time. It is also child focused and in the best interests of the children as, given the timing with which the father says that it should happen it will precede his commencement of overnight time with the children enabling them to be introduced more gradually to spending time with him, a process that is otherwise being frustrated by the failure of the mother to comply with the court’s orders.
Regarding the contravention of 19 and 20 February 2022, I require you, Ms Fermikis, to enter into a bond for a period of two years, self-surety $1,000 with a condition that you comply with the orders of this Court.
Regarding the contravention of 19 and 20 of March 2022 I require you, Ms Fermikis, to enter into a bond for a period of two years, self-surety of $1,000 with a condition that you comply with the orders of this Court.
Regarding the contravention of 24 April 2022 I require you, Ms Fermikis, to enter into a bond for a period of two years, self-surety in the sum of $1,000 with a condition that you comply with the orders of this Court, and I direct that the bonds run concurrently.
I direct you, Ms Fermikis, to attend the Brisbane Registry on 9 December 2022 for the purpose of entering into the bonds.
Mother’s Initiating Application 2 August 2022
On 2 August 2022, the mother filed an Initiating Application seeking to recommence the parenting proceedings in this matter following the delivery of final judgment in September 2021. I note that by the abandonment of the mother of her reasonable excuse claim in the contravention proceedings just heard, the matters asserted by the mother can carry no substantive weight to justify the revisiting of the orders so recently made.
In accordance then with the principles contained in the cases of Rice & Asplund,[1] the Initiating Application will be dismissed.
[1] (1979) FLC 90-725.
Father’s application for costs
In this matter, the father applies for his costs in respect of the dismissed Initiating Application filed by the mother.
The default position in respect of costs is that each party bear their own costs of proceedings, unless there are circumstances sufficiently justifying departure from that position as set out at s 117 of the Act.
In this matter, there are a number of circumstances which bear upon whether or not there should be an order for costs. Weighing against there being an order are the limited financial circumstances of, in particular the mother, who would be required to fund any such costs order. Her evidence attests to her having limited financial support, to having the care of the children with limited child support and in particular where there may be added needs on the parts of one or more of the children for assistance. There is however some source of funding, which is the proceeds currently held in trust from the sale of the property of the parties, those proceedings being held in trust pending resolution of any property dispute between them. The mother asserts, not unreasonably, that she would use whatever proceeds she is able to take from the property proceedings in an attempt to re-establish her life. This is a matter which points away from the making of a costs order.
However, there is another factor which points solely towards the making of a costs order, that is that the Initiating Application filed by the mother was filed in the circumstances where only recently there had been a final determination of the proceedings. It is an Initiating Application which has now been dismissed in accordance with the principles set out in Rice & Asplund.[2]
[2] (1979) FLC 90-725.
The mother’s Initiating Application may be taken be wholly unsuccessful and accordingly, it is appropriate that there be an order for costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 2 December 2022
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