Fermikis & Fermikis (No 3)

[2020] FamCA 576

FAMILY COURT OF AUSTRALIA

FERMIKIS & FERMIKIS (NO. 3) [2020] FamCA 576

FAMILY LAW – Parenting arrangements – Context of Interim orders permitting the Mother to remain in Queensland with the children – where children have not seen the Father – competing risks alleged by each of the parties – appropriate arrangements for children to spend time with the Father – change in Mother’s position regarding contact arrangements – supervised contact with Father at contact centre in Brisbane – provision of extra contact time if Father can facilitate such – provision of information about children’s address, medical and school information to Father – discharge of order prohibiting the Father from visiting the Mother’s previous address

Family Law Act 1975 (Cth)

APPLICANT: Ms Fermikis

RESPONDENT: Mr Fermikis

INDEPENDENT CHILDREN’S LAWYER: Ms Orczykowski

FILE NUMBER: CAC 498 of 2012

DATE DELIVERED: 17 July 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 9 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Neilan Stramandinoli Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Boland Legal Family Lawyers

It is ordered

1. That all previous orders with respect to X born … 2003, Y, born … 2009, Z, born … 2013, W, born … 2015, and Q, born … 2017, be and are hereby discharged.

2. That the children live with the Mother at the residence of the maternal grandparents.

3. That the children Z, W and Q spend time with the Father at a supervised Contact Centre in Brisbane at such times as may be nominated seven days in advance by the Father in writing to the Mother and the Independent Children’s Lawyer for the maximum time as can be facilitated by the Contact Centre and for this purpose:

   (a)Within seven (7) days of the date of this Order, the Mother shall provide a panel of three (3) Contact Centres in Brisbane for the Father’s selection on one (1) within a further seven (7) days of receiving the Mother’s panel;

   (b)Should the Father fail to select a Contact Centre in accordance with Order 3 (a), the Mother shall select a Contact Centre and notify the Father of her selection;

   (c)The Mother and Father shall arrange their own intake appointment within 48 hours of the selection of Contact Centre;

   (d)The Mother and Father shall attend their intake assessment and pay the relevant fee (if any);

   (e)The Mother and Father shall comply with all reasonable requests and directions of the Contact Centre; and

   (f)The Mother shall be solely responsible for any and all fees associated with the Contact Centre (save for the intake assessment fees, if any).

4. Within 7 days of the date of these Orders:

   (a)The Mother provide written confirmation that she is residing with her mother and step father;

   (b)The Mother provide the Father with the children’s residential address;

   (c)The Mother provide the Father with the names of the schools that each of the children are attending;

   (d)The Mother provide the Father with the names and contact details of any doctor or other health professionals including mental health professional that the children have been attending upon whilst in Queensland; and

   (e)The Mother keep the Father informed about the children’s health and welfare matters and that the parties also communicate about their financial matters through their existing parenting app, otherwise by text message for urgent welfare matters relating to the children.

5. The Father be permitted to contact the children’s respective schools to obtain any necessary information that parents usually receive and in relation to the children’s progress.

6. The Father be permitted to contact the children’s doctors or other specialists to obtain any necessary information that parent usually receive in relation to the children.

7. Order 18 of the orders made by consent on 25 February 2019, insofar as it relates to K Street, Suburb L in the Australian Capital Territory is discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fermikis & Fermikis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 498 of 2012

Ms Fermikis

Applicant

And

Mr Fermikis

Respondent

REASONS FOR JUDGMENT

1. In this matter interim orders were made on 4 June 2020 that allowed the Mother to remain with the children in Queensland, she having unilaterally removed them to Queensland from the Australian Capital Territory.  As a consequence of that removal, the children have not seen the Father in accordance with the Orders previously in place that provided for them to spend time with him. 

2. The reasons for that determination are integral to determining the matter that is currently before me, which relates to the time that the Father might now spend with the children.  Those reasons revolved around competing risks alleged by each of the parties.  The Mother alleges extreme family violence on the part of the Father, including sexual abuse of herself and the children.  The Father alleges that the Mother is concocting these matters, risking potential serious psychological harm being caused to the children.  As I observed in the previous judgment, there was no neutral resolution available to remove both of those sets of risks.

3. The proceedings were adjourned following the giving of the above judgment in order to allow the parties to put on material to identify what the appropriate arrangements should be for the children to spend time with the Father.  This was done in a context where the Mother’s Application before the Court at the time of judgment provided, in general terms, that the children Z, W and Q spend time with the Father on a Saturday each month, supervised by Ms P, Ms N or Mr M, along with FaceTime and other times as agreed.  She, at that stage, proposed that the changeovers would occur at the Canberra airport and that the Mother would bear the cost of the children spending time with the Father, including their air or car travel. 

4. In the Father's Application he proposed that there be unsupervised time occurring for a weekend each month in Canberra, although, as a fall-back position if supervision was necessary, that it be supervised by the persons previously proposed by the Mother.  He proposed that the Mother would pay the expenses including the return flights for such time.

5. However, by the time the matter came back on to determine this issue, the Mother’s position had altered considerably.  She proposed that the time with the children take place once per month at a professional contact centre in Brisbane.  She further proposed that the Father would meet the costs of that supervision.  The Mother explained this change in position firstly on the current COVID-19 pandemic (although she accepted that the pandemic was in place when she made her previous set of proposals), on the escalating costs of travel and, without an evidential basis, withdrawal of financial support for that purpose by her parents.  The Mother provided some material to support expense involved with air travel with exhibit F 07 which appeared to identify a best price of flight at $749 round-trip per person.

6. It is against this factual background that the dispute falls to be determined.  The Independent Children's Lawyer was generally supportive of the Mother's proposal although she supported the visits by the Father being at a higher frequency than those proposed by the Mother (if the Father was able to support such).  The Independent Children’s Lawyer gave cogent reasons for adopting such an approach.  In the light of the previous judgment, she noted that those arrangements are protective against each of the risks that have been identified.  Firstly, if the Father does pose a risk of family violence, then professional supervision counters such a risk.  Secondly, if the Mother poses a risk by way of concoction of complaints against the Father, then again professional supervision provides a protection against the increase of such claims being made against the Father by virtue of the times with the children being appropriately supervised by a professional agency.  That is, the arrangements take both sets of risks into account.  The Independent Children’s Lawyer also noted that the arrangements should be in place for only a short period of time given the proposed final hearing of the matter is listed to take place in September 2020.  She also noted that the arrangements for the children, should they spend time with the Father at a professional contact centre in Brisbane, are far less onerous than causing them to fly to Canberra each month for visits with the Father. 

7. It may also be observed that there is good reason in this case to doubt that, if ordered, the visits to Canberra would take place, whether by virtue of a lack of funding on the part of the Mother or otherwise.

8. As with the previous judgment, these interim proceedings give little scope for determining the facts which are essential to determining properly what is in the best interests of the children.  Those considerations are dominated here as they were in the previous judgment by the need for the protection of the children in relation to risks potentially posed by both the Mother and the Father, along with promoting the benefits of meaningful relationship with each of the parents.

9. Focusing on the children's best interests points to the resolution as supported by the Independent Children’s Lawyer.  For the reasons outlined above, this provides the surest guarantees for the protection of the children from risk and the maintenance of their relationship with their Father, as well as their Mother.  Accordingly, with modification to allow an increased frequency if the Father is able to facilitate such (even if that involves some missing of school), orders will be made in general terms as sought by the Mother in respect of that time.

10. Although the Mother sought that the Father pay the costs of supervision, given the previous position articulated by the Mother (paying for the children’s flights to the ACT) and the financial burden of travel to be met by the Father, those costs should be met by the Mother.

11. The Father has also sought that information be provided to him in relation to where the children are living, that she is living with her mother and stepfather, the identification of the children's schools, health professionals and to keep the Father informed about such matters.  The Mother indicated that she was providing information in relation to health and education to the Father and accordingly had no difficulty with such an order.  She opposed the identification of her address.

12. However, a critical aspect of the previous set of orders was the amelioration of risk posed by the Mother through living with her mother and stepfather.  This requires adequate confirmation, not only by means of written confirmation from the Mother that she is residing with her mother and stepfather, but also by disclosure of the address.  To the extent that the Mother expresses concerns in respect of family violence, it may be observed the parties have mutual family violence orders against each other.  Accordingly, orders will be made in the terms sought by the Father in respect of the disclosure of information.  Similarly, the Father will be granted permission through these orders to contact the children’s schools and health professionals to obtain information in relation to the children.

13. Although orders were also sought in respect of X and Y, the evidence does not support the making of the particular orders as sought by the parties.

14. Finally, the Father sought the discharge of an order made on 25 February 2019 restraining him from attending the property of the parties of K Street, Suburb L in the Australian Capital Territory.  Although the Mother is now living interstate, she opposed this order.  She asserted that she has in train the work to prepare the premises for sale, and that some of her property is still there.

15. It seems, however, that the move by the Mother to Queensland removes the necessity of this restraint on the Father and it will be discharged.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 17 July 2020.

Associate: 

Date:  17 July 2020