Fermikis & Fermikis (No 2) [2025] FedCFamC1F 58

Introduction

The case of Fermikis & Fermikis (No 2) [2025] FedCFamC1F 58 was heard in the Federal Circuit and Family Court of Australia (Division 1) before Justice Carter. It involved a detailed examination of multiple contraventions of parenting orders by the mother, leading to the imposition of legal sanctions under the Family Law Act 1975 (Cth). The case highlighted the Court’s role in enforcing compliance with parenting orders and assessing the appropriate responses to repeated breaches. The Court had to determine whether the mother’s conduct necessitated a punitive approach, such as imprisonment, or whether rehabilitative measures like parenting education and behavioural bonds would be more effective. The ruling addressed broader implications for compliance with family law orders, reinforcing the balance between coercive and punitive judicial interventions.

Background

The matter involved contraventions of court-ordered parenting arrangements, where the mother was found to have breached the orders on four separate occasions between December 2022 and January 2023. Notably, these breaches occurred while the mother was already serving bonds imposed for earlier contraventions of parenting orders.

The previous orders required the children to spend time with their father on specified dates. However, the mother’s actions, including failing to facilitate the changeover and involving the children in parental disputes, led to allegations of deliberate non-compliance. The father sought severe sanctions, including imprisonment, while the mother argued for a therapeutic approach, suggesting that parenting education would be a more effective measure to ensure compliance in the future.

As the contraventions predated the commencement of the Family Law Amendment Act 2023 (Cth), the case was determined under the Family Law Act 1975 (Cth) as it stood at the time of the contraventions, specifically under Part VII, Division 13A.

Key Legal Issues and Questions for the Court

1. Contravention of Parenting Orders: Whether the mother’s failure to comply with court-ordered parenting arrangements, including facilitating changeovers, constituted a breach under Division 13A, Part VII of the Family Law Act 1975 (Cth).
2. Seriousness of the Contraventions: Determining whether the mother’s breaches should be categorized as less serious (Subdivision E) or more serious (Subdivision F) given her history of non-compliance and previous sanctions.
3. Sanctions and Enforcement Measures: Whether penalties such as bonds, fines, or mandatory counselling should be imposed under s 70NFE(4) of the Family Law Act 1975 (Cth) or whether imprisonment would be an appropriate sanction for repeated breaches.
4. Financial Compensation: Assessing whether the mother should be required to reimburse the father for travel and other costs incurred due to her contraventions, pursuant to s 70NFB(2)(f) of the Family Law Act 1975 (Cth).
5. Legal Costs Order: Considering whether the mother should be required to contribute to the father’s legal costs, including whether indemnity or party/party costs should be awarded under s 117 of the Family Law Act 1975 (Cth).
6. Ensuring Future Compliance: Evaluating the most effective means to secure compliance with court orders, including whether further bonds, supervised changeovers, or parenting education programs would be more appropriate moving forward.

Case Authorities and Cited Precedents

The Court referenced several key cases to guide its decision:

1. Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 – Considered in determining whether the father should be awarded indemnity for legal expenses due to the mother’s contraventions.

Link: Full Case

• D & D (Costs) (No. 2) (2010) FLC 93-435 – Applied in deciding whether costs should be awarded on a party/party basis rather than indemnity.

• Kohan v Kohan [1992] FamCA 116; (1993) FLC 92-340 – Examined to assess whether the mother’s breaches met the threshold for indemnity costs, which are granted only in exceptional circumstances.

Link: Full Case

• Limousin & Limousin (Costs) [2007] FamCA 1178; (2007) 38 Fam LR 478 – Considered in determining whether the financial circumstances of both parties justified an order for costs.

Link: Full Case

• McClintock & Levier [2009] FamCAFC 62; (2009) FLC 93-401 – Used to justify imposing bonds and counselling rather than imprisonment, reinforcing that contravention sanctions aim to ensure compliance rather than punishment.

Link: Full Case

• Munday v Bowman (1997) FLC 92-784 – Reviewed to assess whether the mother’s repeated breaches justified indemnity costs, leading to a party/party cost order.

• Yunghanns v Yunghanns [2000] FamCA 681; (2000) FLC 93-029 – Considered in exercising discretion to order costs against the mother while limiting them to party/party costs rather than indemnity costs.

Link: Full Case

Court’s Findings

After considering the evidence and legal principles, the Court ruled as follows:

1. Contraventions Established: The Court found that the mother had contravened the parenting orders on 15 occasions by failing to facilitate telephone contact with the father, without reasonable excuse.
2. Reasonable Excuse Dismissals: Two contravention counts were dismissed, as the Court accepted that the eldest child’s refusal to see the father was a valid reasonable excuse.
3. Penalty Considerations: Despite the breaches, no penalties were imposed, as the Court recognised the impracticality of strict compliance with the existing parenting orders.
4. Variation of Orders: The Court varied the parenting orders, granting the eldest child autonomy in deciding contact with the father and modifying telephone communication requirements to reflect the children’s best interests.

Legal Implications and Precedent Summary

This case highlights key aspects of family law, emphasizing that contraventions must be taken seriously, but penalties are not automatic, as courts consider the practicality of compliance before imposing sanctions. A valid reasonable excuse requires clear and compelling evidence, ensuring that parenting orders are enforceable yet adaptable. Courts may vary orders when circumstances change, prioritizing the children’s best interests over rigid compliance. Additionally, the case underscores the importance of alternative dispute resolution, given the financial and emotional toll of prolonged litigation, making mediation a preferable approach.

 Keywords

• Family law
• Parenting orders
• Contravention applications
• Reasonable excuse
• Child contact disputes
• Variation of court orders
• Federal Circuit and Family Court of Australia
• Enforcement of court orders
• Best interests of the child

Conclusion and Call to Action

The case of Briggs v Briggs (No 3) highlights the complexities involved in enforcing parenting orders, particularly when compliance becomes challenging due to changing family dynamics and practical constraints. It underscores the importance of understanding legal obligations and seeking appropriate legal remedies rather than unilaterally disregarding court orders, which can result in protracted and costly litigation. This case also reinforces the significance of negotiation and dispute resolution to avoid unnecessary legal proceedings and to ensure parenting arrangements serve the children’s best interests.

If you are facing parenting disputes, allegations of contravention, or seeking to vary existing orders to better reflect your circumstances, Pentana Stanton Lawyers can provide expert legal guidance. Our experienced team can assist you in navigating the complexities of family law to achieve fair and effective outcomes.

Contact us today for professional legal assistance tailored to your unique situation.