Nikolakis and Nikolakis

[2016] FamCA 290

FAMILY COURT OF AUSTRALIA

NIKOLAKIS & NIKOLAKIS [2016] FamCA 290

FAMILY LAW – CHILDREN – international travel – where mother has had no contact with subject children for some years – where children chosen to be representatives at overseas ceremony and battlefield tours - where mother has not responded to request for consent to issue Australian travel documents for children and remove children from airport watch list – where some urgency in application – where mother notified of application – where appropriate to hear application ex parte – where orders made as asked.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode[2006] FamCA 1346
MRR v GRR [2010] HCA 4

APPLICANT: Mr Nikolakis

RESPONDENT: Ms Nikolakis

FILE NUMBER: PAC 1707 of 2007

DATE DELIVERED: 29 April 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 24 March 2016

REPRESENTATION

APPLICANT – LITIGANT IN PERSON:

RESPONDENT: No appearance

Orders

1. The names of the children C born … 2000 and D born … 2002 be forthwith removed from the Airport Watchlist and that the children be at liberty to travel internationally.

2. The Father Mr Nikolakis may apply for an Australian travel document for the children C born … 2000 and D born … 2002 without first obtaining the consent of the Mother Ms Nikolakis.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1707  of 2007

Mr Nikolakis

Applicant

And

Ms Nikolakis

Respondent

REASONS FOR JUDGMENT

1. The matter for determination is a discrete one. The applicant father on 21 March 2016 filed an application returnable on short notice. The applicant father was granted leave to effect service of his application by email communication to the respondent mother by no later than 10 a.m. on 23 March 2016.

2. Exhibit A comprises the email communication from the father to the mother attaching a copy of his application and his affidavit in support in compliance with the substituted service order.

3. In his application the father sought orders that in summary provided:

   a)that previous orders placing the subject children on the airport watch list be discharged and the children’s names be removed from the watch list,

   b)that the children C born in 2000 and D born in 2002 be permitted to travel internationally, and

   c)that the father to be entitled to apply for an Australian travel document for the said children without first obtaining the consent of the respondent mother.

4. The mother and father were divorced in December 2004 and it appears there were ongoing proceedings over a number of years between them in relation to the four children of their relationship. The children the subject of this application are the youngest two children of that relationship.

5. On 19 October 2010 the mother and father consented to final parenting orders in relation to the subject children that in substance provided:

   a)that all previous orders in relation to the children be vacated,

   b)that as and from the Queensland September 2010 school holidays the children live with the father, and

   c)that the mother and father have equal shared parental responsibility for the children.

6. The father’s application is supported by his affidavit filed on 21 March 2016 and his further affidavit filed on 22 March 2016.

Procedural fairness

1. All four children of the parties’ marriage have been in the father’s care since about 2009.

2. The father has received no child support from the respondent mother since the children have all come into his care. The mother has had no contact with the children for some years in circumstances where the second eldest child of the relationship disclosed a sexual assault on her by the mother’s then partner.

3. To the father’s knowledge the mother still resides with that partner.

4. The child C, who is in year 11 at high school, is an active member of the Cadets. She has recently been chosen as one of 20 cadets be a representative at an international battlefields tour. For that purpose she needs an international travel document and to be permitted to leave Australia with her proposed departure date being 6 April 2016.

5. The child D is also a member of the Cadets and has been chosen as one of two cadets who will read the names of the fallen World War I soldiers in Europe in 2018. He also requires an international travel document and to be permitted to leave Australia with his proposed departure date being mid-April 2018.

6. The father has forwarded to the mother on three previous occasions proposed consent orders to facilitate the children obtaining passports. Appropriate documents have never been returned signed to the father.

7. In such circumstances the father sought that his application be heard ex parte on an urgent basis. Having regard to the considerations referred to above it was appropriate that, the mother having been notified by email and their being no appearance on her behalf, the application proceed to determination.

Discussion

1. As a consequence of the urgency of the father’s application, particularly in relation to the child C, the matter proceeded to ex parte hearing and orders were made.

2. As a consequence of the exigencies is of the list on the day Reasons for Judgment were reserved. These are those Reasons for Judgement.

3. The relevant principles in relation to parenting proceedings are well settled Goode & Goode[2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

5. Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the court is to take into account in determining what is in the best interests of the child.

7. Section 61DA of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)],

   b)in interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].

   c)if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)]

8. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the court may but is not required to consider equal or substantial and significant time [s65DAA(6)].

9. The “statutory pathway” has little relevance to the present application. There are presently final orders in place in relation to the subject children. Those orders providing for the mother and father to have equal shared parental responsibility and for the children to live with the father.

10. It is to be inferred that there was no order for the mother’s time with the children as a consequence of the allegation referred to above.

11. The Court is required to have regard to the best interest considerations set out in s 60 CC of the Act and to the extent that is necessary in the context of this discrete application that has been done.

12. It is clear that overall the orders sought by the father are in the best interests of the subject children who have had conferred on them a significant honour in representing their country and their organisation on important occasions significant to Australia’s history.

13. Orders will be made as sought by the father.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 29 April 2016.

Associate: 

Date:  29 April 2016