Nixon and Nixon (No 2) - [2016] FamCA 963

FAMILY COURT OF AUSTRALIA

NIXON & NIXON (NO. 2)	[2016] FamCA 963
FAMILY LAW — CHILDREN — Final parenting orders — sole parental responsibility to mother — no benefit to the children to have a meaningful relationship with the father — children subjected to family violence and emotional abuse at hands of father — children to reside with mother and no provision for time with father — restraint against father contacting mother and children — father ran proceedings in a vexatious manner.

APPLICANT:

Ms Nixon

RESPONDENT:

Mr Nixon

INDEPENDENT CHILDREN’S LAWYER:

Ms Smith

FILE NUMBER:

MLC

2061

2009

DATE DELIVERED:

15 November 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:	20–24 January 2014, 3–5 June 2014, 8–10 October 2014, 25, 27, 28 January 2016
DATE OF LAST SUBMISSION:	26 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

All previous parenting orders in relation to the children, N born … 2000, S born … 2001 and I born … 2005 (collectively ‘the children”), or any of them, be and are hereby discharged.
The mother have sole parental responsibility for the long term care, welfare and development of each of the children.
The children live with the mother.
For the avoidance of doubt, the mother is solely responsible, as between herself and the father, for decisions regarding:
(a) where the children live;
(b)when and how the children travel, including being able to apply for passports without the consent of the father;
(c) the health and education of the children.
The father be, and is hereby, restrained by injunction from knowingly attending at or within the vicinity of
(a)the residence of the mother and/or any of the children;
(b)the mother’s work place;
(c) the school at which any of the children are attending from time to time;
(iii) the tertiary education institutions attended by any child from time to time; and
(iv) any place at which a child works or is employed or attends for recreational purposes.
The father, his servants and agents be and are hereby restrained from attending at or with 100 metres of the residence of the maternal grandmother in Town LX, Victoria.
If the children, or any of them, express a wish to communicate with or spend time with the father, the mother contact the father in writing to organise the communication or time to be spent.
The father spend time with the children (or any of them) in accordance with any agreement reached between himself and the mother and confirmed in writing.
The mother be, and is hereby at liberty to provide a copy of these reasons to the children’s paternal grandmother and I DIRECT that the mother be provided with an extra copy of these reasons for that purpose.
Any passports of the children held by the Registry for safekeeping be released to the mother.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FamCA 963
Decision Date: 15 November 2016

CaseChat Overview and Summary

In *Nixon & Nixon (No 2)*, the Family Court of Australia considered final parenting orders concerning three children. The dispute involved allegations of family violence and emotional abuse by the father, leading to the mother seeking sole parental responsibility and orders for the children to reside with her, with no provision for time with the father. The father had also conducted the proceedings in a vexatious manner.

The court was required to determine whether it was in the best interests of the children to have a meaningful relationship with their father, given the history of family violence and emotional abuse. The court also had to consider the appropriate parenting orders, including the extent of parental responsibility, the children's living arrangements, and whether any contact or time with the father should be permitted. Furthermore, the court needed to address the father's conduct in the proceedings and the necessity of protective measures for the mother and children.

Justice Bennett found that there was no benefit to the children in having a meaningful relationship with the father due to the family violence and emotional abuse they had been subjected to. Applying the principles of the *Family Law Act 1975* (Cth), particularly concerning the paramountcy of the children's best interests and the need to protect them from harm, the court ordered that the mother have sole parental responsibility for the children's long-term care, welfare, and development. The children were ordered to live with the mother, and the father was restrained by injunction from attending at or near the mother's and children's residences, workplaces, and schools, as well as the maternal grandmother's residence. The court also made provisions for the mother to facilitate communication or time with the father only if the children expressed a wish to do so and an agreement was reached in writing. The father's applications were dismissed, and the proceedings were removed from the docket.

Orders

Orders of the court

All previous parenting orders in relation to the children, N born … 2000, S born … 2001 and I born … 2005 (collectively ‘the children”), or any of them, be and are hereby discharged.

The mother have sole parental responsibility for the long term care, welfare and development of each of the children.

The children live with the mother.

For the avoidance of doubt, the mother is solely responsible, as between herself and the father, for decisions regarding:

(a) where the children live;

(b) when and how the children travel, including being able to apply for passports without the consent of the father;

The father be, and is hereby, restrained by injunction from knowingly attending at or within the vicinity of

(a) the residence of the mother and/or any of the children;

(b) the mother’s work place;

(iii) the tertiary education institutions attended by any child from time to time; and

(iv) any place at which a child works or is employed or attends for recreational purposes.

The father, his servants and agents be and are hereby restrained from attending at or with 100 metres of the residence of the maternal grandmother in Town LX, Victoria.

If the children, or any of them, express a wish to communicate with or spend time with the father, the mother contact the father in writing to organise the communication or time to be spent.

The father spend time with the children (or any of them) in accordance with any agreement reached between himself and the mother and confirmed in writing.

The mother be, and is hereby at liberty to provide a copy of these reasons to the children’s paternal grandmother and I DIRECT that the mother be provided with an extra copy of these reasons for that purpose.

10.

Any passports of the children held by the Registry for safekeeping be released to the mother.

11.

The appointment of the Independent Children’s Lawyer be discharged as and from the expiration of the period in which a Notice of Appeal can be filed without leave.

12.

All extant applications be and are hereby dismissed and this matter be removed from the docket of the Honourable Justice Bennett.

IT IS FURTHER ORDERED:

13.

That pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS DIRECTED:

14.

That all material produced under subpoena be returned to the party or entity producing same at the expiration of the appeal period and if no appeal has been lodged with the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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