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Defying Court Orders: A Costly Mistake in Fermikis & Fermikis (2024)

Introduction

The case of Fermikis & Fermikis [2024] FedCFamC1F 879 underscores the importance of complying with final parenting orders in Australian family law. Justice Carter ruled that the mother, Ms. Fermikis, had contravened parenting orders on multiple occasions by failing to facilitate time between the children and their father, Mr. Fermikis. Despite already being on a bond from previous breaches, the mother’s continued non-compliance led to serious legal consequences. This case serves as a stark reminder that family law orders must be followed, and failure to do so can have severe repercussions, including potential imprisonment.

Facts and Issues

Facts:

  • The parties separated in 2018 and had five children, three of whom were the subject of these proceedings.
  • Final parenting orders were made on 30 September 2021, requiring the children to spend time with their father on weekends and school holidays.
  • The mother failed to comply with these orders, leading to a contravention application by the father in May 2022.
  • On 2 December 2022, the Court ordered the mother to enter into three separate bonds and comply with parenting orders.
  • Despite this, the mother again failed to facilitate time between the children and their father on 11, 27, and 28 December 2022, and 16 January 2023, leading to the second contravention application.
  • The mother defended her actions by claiming she had made "reasonable attempts" to comply and had a "reasonable excuse."

Issues Before the Court:

  1. Did the mother intentionally contravene the parenting orders?
  2. Did she take reasonable steps to comply?
  3. If not, did she have a reasonable excuse for her non-compliance?
  4. Should any penalties be imposed on the mother for repeated breaches?

Application of Law to the Facts

Under s 70NAC of the Family Law Act 1975 (Cth), a person contravenes a parenting order if they intentionally fail to comply or make no reasonable attempt to comply.

  • Did the mother take reasonable steps to comply?
  • The Court found that she did not. Simply bringing the children to the changeover location was not enough; she was required to positively encourage them to go.
  • In Stamp & Stamp [2014] FCCA 1269, the Court made it clear that a parent must actively encourage compliance, not merely ask the child if they wish to attend.
  • The mother repeatedly asked the children if they wanted to go, rather than directing them to go. She also spoke negatively about the father in front of the children, undermining the process.
  • Did the mother have a reasonable excuse?
  • Under s 70NAE(5), a parent may have a reasonable excuse if they believed withholding time was necessary to protect the child’s safety.
  • The mother claimed the children were distressed and did not want to go, but the Court ruled that their distress was not severe enough to justify non-compliance. In TVT & TLM [2006] FMCAfam 20, the Court emphasized that emotional distress must be extreme to qualify as a reasonable excuse.
  • The Court found that the mother's assertions of distress were unsubstantiated, and her behavior at handovers contributed to the children’s reluctance.
  • Penalty Considerations:
  • The Court recognized that contravention proceedings are not about punishment but ensuring compliance. However, since the mother was already on a bond and continued to breach orders, penalties—including imprisonment—were now under consideration (Family Law Act 1975 (Cth), Pt VII Div 13A).

Judgment Analysis

Justice Carter found that the mother knowingly and intentionally contravened the orders. The Court ruled:

  1. Count 1 (10 December 2022) – Dismissed.
  • The mother had a reasonable excuse as she was waiting for the father to be served with a Protection Order.
  1. Counts 2, 3, 4, and 5 – Proven Beyond Reasonable Doubt.
  • The mother failed to take reasonable steps to comply with orders.
  • She did not actively encourage the children to attend handovers.
  • Her behavior actively discouraged compliance.
  • No sufficient reasonable excuse was established.

Judicial Reasoning:

  • Justice Carter relied on precedents like O’Brien & O’Brien (1993) FLC 92-396 and Stevenson & Hughes (1993) FLC 92-363, which state that parents must do more than passively ask children if they want to comply.
  • The video evidence submitted showed that the mother did not attempt to persuade the children to go with their father and instead reinforced their resistance.
  • The Court emphasized that orders are not optional—parents cannot substitute their judgment for that of the Court (Stamp & Stamp [2014] FCCA 1269).

Take-Home Lesson

Key Lessons from the Case:

  1. Compliance with Parenting Orders is Mandatory – Parents must actively encourage compliance, not simply go through the motions.
  2. Children’s Reluctance is Not a Justification – Courts expect parents to enforce orders just as they would enforce school attendance.
  3. Repeated Breaches Lead to Serious Consequences – The Court considered imprisonment due to the mother’s ongoing defiance.
  4. Evidence Matters – The Court relied on video footage and not just testimony to determine whether the mother truly attempted compliance.

This case serves as a cautionary tale—failing to follow court orders, especially after a prior warning, can lead to severe penalties.

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