Nixon and Nixon and Ors

[2010] FamCA 1017

FAMILY COURT OF AUSTRALIA

NIXON & NIXON AND ORS [2010] FamCA 1017

FAMILY LAW – PROCEDURE – Airport watch list – Contravention application – Case management orders

APPLICANT: MS NIXON

FIRST RESPONDENT: MR NIXON

SECOND RESPONDENT: L  ASSET MANAGEMENT LTD

INTERVENOR: L  CAPITAL PARTNERS PTY LTD

FILE NUMBER: MLC 2061 of 2009

DATE DELIVERED: 8 NOVEMBER 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 8 NOVEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR O’SHANNESSY

SOLICITOR FOR THE APPLICANT: KLIGER PARTNERS

COUNSEL FOR THE FIRST 

RESPONDENT:

MR I.F. MAWSON SC

SOLICITOR FOR THE FIRST

RESPONDENT:

KENNEDY PARTNERS

COUNSEL FOR THE SECOND

RESPONDENT:

MR PARKER

SOLICITOR FOR THE SECOND

RESPONDENT:

LANDER & ROGERS

COUNSEL FOR THE INTERVENOR: MR PARKER

SOLICITOR FOR THE INTERVENOR: LANDER & ROGERS

Orders

IT IS ORDERED:

1. THAT paragraph 2 of the wife’s Application in a Case filed 5 November 2010 be dismissed.

2. THAT otherwise the Orders sought in paragraphs 3 – 11 (inclusive) of that Application in a Case be adjourned to the Judicial Duty List on 15 December 2010 before Cronin J, to await hearing after the determination of the Contravention Application previously issued and returnable on that day.

3. THAT until further order the husband provide in writing no less than seven (7) clear days notice to the wife and her solicitors of any intended departure by him from the Commonwealth of Australia (and if he genuinely has less than seven (7) clear days notice himself then to give the wife as much notice as is possible) and advise of the costs associated therewith and the nature and reason for such travel.

4. THAT there be no order as to any costs of and incidental to this day.

5. THAT the Application in a Case filed by the wife on 10 March 2010 be dismissed.

6. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS NOTED

A.THAT the intention of paragraph 3 of these orders is that the husband provide full and proper information as is known to him of the particulars and circumstances of any overseas travel including the cost and nature thereof.

B.THAT if practicable this matter should be removed from the Judicial Duty List on 15 December 2010 and be listed as a discrete one (1) day hearing before the Docket Judge (Dessau J) or such other Judge as is then available to hear the proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Nixon & Nixon and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2061 of 2009

MS NIXON

Applicant

And

MR NIXON

First Respondent

And

L ASSET MANAGEMENT LTD

Second Respondent

And

L CAPITAL PARTNERS PTY LTD
Intervenor

REASONS FOR JUDGMENT

1. The matter of Nixon has been listed before me for an urgent hearing.  An application in a case was filed and time was abridged by the Registrar and the matter comes before me at 2.15 p.m. this day.  Mr O’Shannessy of Counsel appears for the applicant wife.  Mr Mawson, Senior Counsel, appears for the husband.

2. When the matter was first mentioned, Mr Parker, Solicitor, announced an appearance on behalf of both the Second Respondent and the Intervenor.  As it transpired the matters actually before the Court for hearing this day did not involve either of those parties and Mr Parker then withdrew without making any consequential application.

3. Alongside the application in a case there was issued a Contravention Application on 5 November of this year, but that matter was not abridged, and it was allocated a Court hearing date of 15 December 2010, in the Duty List before Cronin J.  It was common ground that the Contravention Application was not before me and no abridgement of time was seriously proposed for that matter to be heard this day.

4. The matter proceeded on the basis that it was only the orders sought in the Application in a Case, to which I now turn, which were before the Court.  Paragraph 1 of that Application sought a general abridgement of times, including for the contravention hearing, but that was not pursued.  Paragraph 2 was before the Court and sought to restrain the husband from leaving the Commonwealth of Australia, for his name to be put on the Airport Watch List, and otherwise for his passport to be surrendered to the Melbourne Registry of the Family Court for safekeeping.

5. The balance of orders sought in that Application dealt with various commercial interests, including monies held in an interest-bearing account on behalf of the parties and the Respondent and Intervenor, and otherwise, proceedings for the sale of a property at M and the funds therefrom, and finally, an Application pursuant to section 106A of the Family Law Act 1975 as to empowering an officer of the Court to sign and execute documents in the name of the husband. 

6. Mr Parker withdrew from the hearing on the basis that orders sought in paragraphs 3-10 inclusive thereof would not be pursued this day.  That was common agreement and was acknowledged by Mr O’Shannessy.  On behalf of the husband, leave was sought to file and serve an affidavit.  That affidavit purported to respond to paragraph 2 of the Application, that is issues of, and related to, the freedom of movement of the husband.  Leave was granted, and that affidavit is to be filed.  I have read that affidavit.

7. The husband in that affidavit explained, somewhat belatedly to the wife, that the purpose of his trip is for business and primarily to sight and listen to the good news of, and related to, certain resource exploration venues on site, as per the draft itinerary annexed to his affidavit.  The husband flies business class on Emirates, leaving from Melbourne, and returning, all between the dates of 12 November and 22 November.  The affidavit deposed to the fact that the airfare and accommodation is funded by a group identified as G Equities, and there is correspondence from that organisation annexed to his affidavit and dated 4 November of this year.

8. The wife’s concern when the Application was issued, and her affidavit in support was prepared, was that she knew little or nothing of the trip, or the funding of the trip.  It is understandable that the wife was aware of the husband’s past personal trip and expenditure to the South of France.  Those matters are detailed in part in the reasons for judgment of the Senior Registrar, in his Judgment delivered 1 October of this year and, in particular, I was referred to paragraphs 91, 92, and 93 thereof, which I have read.

9. I am accepting that, on this occasion, this trip is for business purposes.  It is largely funded by an outside equity group.  The husband may have some personal expenditure on entertainment and wining and dining himself or others, but it realistically can be read under the umbrella of business expenses.  It would be most unusual, notwithstanding the particular facts of this case, to restrain the husband from what is almost certainly a business trip to a business location on a tight schedule, notwithstanding the luxury of business class airfare.

10. I do not see that any restriction on travel would impact upon the asset pool.  The wife and her legal advisors are clearly focused on asset retention, but that has to be balanced against proper business enterprise and expenditure and, on the facts of this particular case, for this trip to its destination and limited time span, I will not restrain the husband.  It should be added that he says in his affidavit he will return and not live overseas, and that seems a reasonable assertion.  In any event, the manner in which the wife’s Application was drafted as to paragraph 2, (b), (c), and (e) thereof, might in itself have caused some issues.  My overview would have been, in appropriate cases, an airport restraint and entering the prohibition order upon the computer at all ports of embarkation would be appropriate, rather than this Court taking possession of the passport.  That matter is of no consequence in my determination to dismiss paragraph 2.

11. The other paragraphs 3-11 (inclusive) of the wife’s application I intend to adjourn, without hearing, to 15 December of this year in the Duty List before Cronin J, or otherwise as before such other Judge as can be arranged.  I understand that there is likely to be time needed on the Contravention Application.  Mr Mawson has carefully not addressed that today, though the significant letter annexed to the wife’s affidavit, being the letter from the husband’s solicitor explaining their reasons for non-compliance and written in mid-September of this year, is a document of some interest.  The reality is that there has been no appeal or review of the Senior Registrar’s decision.  The husband has not exercised what rights he would have had in that regard.

12. What matters or facts were before the Registrar at the hearing in August of this year, and as may have differed from the disclosures by the September letter, are not before me at this time, and I make no findings thereon.  The reality is that there are payments, both ongoing periodic and a lump sum payment, that are in arrears and will be the subject of the section 112AD Contravention Application.  My concern is that matter should be separately listed on 15 December before a discrete Judge, perhaps the Docket Judge, Dessau J so as it can be given some hearing time on the day.  The other Applications would follow in turn after the Contravention Application, which need be first heard and determined.

13. One of the many reasons for dismissing the orders sought by the wife in paragraph 2 of her interim Application this day is that the Contravention Application is still alive.  The husband is entitled to reserve his plea and maintain a level of silence on those issues and not be compromised by giving evidence which may, possibly, tend to incriminate him on that Contravention Application.  Accordingly, the listing of an Application in a Case this day in competition to the subsequent hearing of the Contravention Application was somewhat misguided.

14. At the conclusion of his submission, Mr O’Shannessy raised a separate issue, that is, requiring the husband to give notice to the wife of any further overseas trip, not just limited to any trip on or prior to 15 December of this year, but any other trip hereafter to be made.  That issue and as to the Court’s hearing thereof, and as to the merits thereof, was strongly opposed by Mr Mawson, who highlighted the impracticality of that advice to be given to the wife, as it often arises on extremely short notice.  What had been sought was 21 days’ notice, and that from time to time may be impracticable.  There is, however, a benefit to the wife, who is owed money which is not the subject of an appeal, but may be the subject of an inability to pay application, having some knowledge of the whereabouts of the husband, particularly if it is for social and personal travel rather than business.

15. I understand the husband has not had any reasonable opportunity to prepare his objections, but I would most likely understand that the husband would object to any such Application at any time and anywhere.  The reality is, ultimately, how does the Court afford a level of reasonable justice without impinging upon the rights of parties in any unreasonable manner.  On balance, it is appropriate for leave to be afforded Mr O’Shannessy for that Application.  I do not see any prejudice afforded the husband, subject to a reasonable timetable.  I would concur that 21 days is excessive.  A more realistic period is 10 days, and if it be less than that, then that can be fairly explained by the husband when notice is given.  The intention is very simple.  If and when the husband knows he is to travel, he does the courtesy of telling his solicitor to tell the wife’s solicitor, without sitting on the information.  At the very least, it might discourage personal and expensive travel to the South of France or wherever.

16. I intend to make such an order as, in all of the circumstances of this case, I find that it is both just and does not impinge, in any way that I can reasonably understand upon the husband or his standing with the Court.  It in no way prejudges any aspect of any Contravention Application and I highlight that observation in these reasons for Judgment.  It is, and should be, wholly immaterial to that hearing.  It is in place to avoid any further uninformed short-notice application to the Court which comes at cost to the parties.

17. I will have these reasons for judgment transcribed, placed upon the Court file, and made available to all parties.  I will have the aide-memoire produced by Mr O’Shannessy of counsel marked as exhibit “W1” and be retained upon the Court file.

I certify that the preceding seventeen
(17) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 8 November 2010

Associate: ……………………………………………………………

Date:  …………………………………………………………………