THE COURT DECIDES IN FAVOR OF THE MOTHER DESPITE HER HAVING VIOLATED ORDERS

FERMIKIS & FERMIKIS

FAMILY COURT OF AUSTRALIA

[2020] FamCA 449

This judgment concerns the parenting arrangements for the children of the relationship, X (17 years old), Y (10 years old), Z (6 years old), W (4 years old), and Q (almost 3 years old). The children were not provided to the Father despite orders for that to occur.  Also, the mother relocated with the children to Queensland without notice to the Father, the ICL, or the Court.  Each of the parties makes serious allegations about the risk of harm presented to the children by the other.

FACTS:

Before the acquittal of Mr. Fermikis (the Father) for the assaults upon Ms. Fermikis (the Mother), interim orders were made wherein the Mother  was restrained from changing the parties’ children’s place of residence from the ACT area and for the Father to call X and Y once a week and spend time with Z, W, and Q each alternate Friday from 10 am to 5 pm and each alternate Saturday from 10 am to Sunday 5 pm with the Father’s sister or an agreed person to be in substantial attendance during the Father’s time.

The Mother failed on numerous occasions to provide the children.  She advised the Court on twice that she was not providing the children to the Father due to illnesses and to the Father’s failure to comply with his obligations pursuant to bail conditions, pursuant to the Domestic Violence Order, or pursuant to the orders of the Federal Circuit Court.  The Mother indicated that she would file an application to suspend the current orders.  The Mother filed a further affidavit in which she disclosed that she had removed the children to live with her in Queensland.  She had not informed the Court that she had done so on either of the previous two occasions that the matter was before the Court.

The Father sought the children’s return to the ACT and for shared care. In the event the Mother does not return, he sought a recovery order and that all five children live with him full time. The Mother, on the other hand, sought to regularize her move with the children to Queensland and that there be limited supervised face to face time with the Father, funded by the Father.

ISSUE: 

Whether or not the Court should grant the Father’s application for the children to be returned to the ACT and to be under the parties’ shared care.

HELD:

Sec 60CC(2A) the Family Law Act[1] places a primacy upon the need to protect children from harm occasioned by being exposed to abuse, neglect or family violence. Despite the unpalatability of orders that appear to reward a parent who has flaunted the orders of the Court by removal of the children in the face of an injunction, the Mother remaining in Queensland with the children is the result that most significantly ameliorates the risks faced by the children.

Remaining in Queensland ameliorates the risks associated with neglect by the Mother, by virtue of the involvement of the Mother’s mother and stepfather. It also ameliorates the risks posed by the Father concerning sexual abuse and family violence. It does little to ameliorate the risk of abuse posed by the Mother about the potential involvement of the children in the concoction of sexual abuse allegations.

Given the lack of time spent by X and Y with the Father, given that they have recently given evidence against him in respect of assaults upon the Mother, and given the tacit concession inferred from the Father’s position that there needs to be therapeutic reintroduction, it cannot be thought to be in their interests to be removed from the Mother to live with the Father if the Mother does not return to the ACT.

The Court permitted the Mother to relocate the children’s residence to the grandparent’s residence in Queensland and discharged the orders that governed time with the Father, which was relisted for determination of interim arrangements for time with the Father.  

It will be necessary to hear from the parties further with arrangements for the Father to spend time with children while remaining in Queensland.

Remaining in Queensland ameliorates the risks associated with neglect by the Mother, by virtue of the involvement of the Mother’s mother and stepfather. It also ameliorates risks posed by the Father in relation to sexual abuse and family violence. It does little to ameliorate the risk of abuse posed by the Mother in relation to potential involvement of the children in concoction of sexual abuse allegations.

[1] (2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2) (b).

(2)  The primary considerations are:

(a)  …      

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
#relocation