NIXON & NIXON - [2015] FamCA 887

FAMILY COURT OF AUSTRALIA

NIXON & NIXON

[2015] FamCA 887

FAMILY LAW – Interim decision – pending parenting proceedings re-listed – mother’s application for passports granted – father’s application to have children placed on the watch list dismissed

APPLICANT:

Ms Nixon

RESPONDENT:

Mr Nixon

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Ms Smith

FILE NUMBER:

MLC

2061

2009

DATE DELIVERED:

1 October 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

1 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

In Person

SOLICITOR FOR THE RESPONDENT:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

ORDERS

IT IS ORDERED THAT:

1.I grant leave to the husband to file his Response to an Application in a Case dated 30 September 2015 and his affidavit in support sworn or affirmed on 30 September 2015.
2.That the mother be permitted to apply for an Australian Passport for each of the children of the marriage N born … 2000, S born … 2001 and I born … 2005 notwithstanding that the father of the children has not signed the passport application forms.
3.Immediately upon receipt by the mother of the passport(s), the mother attend to the following:-
a) To make three copies of the endorsed pages of each passport and send a copy to the father and the independent children’s lawyer; and
b) To send the passport, or passports to the Registry Manager of this Registry of the Court by pre-paid post to be held for safekeeping.
4.Until further order, the Registry Manager of this Registry of the Court hold the passports safely pending further order of the Court subject only to the operation of paragraphs 5 and 6 hereof.
5.The mother be and is hereby entitled and authorised to do all acts and things necessary to enable the child N born … 2000 (“N”) to participate in the exchange tour to Europe from 3 April 2016 to 11 May 2016.
6.For the purpose of participation by N in the said tour, the Registry Manager of this Registry of the Court cause N’s passport to be posted to the mother, or at the direction of the mother, by not later than Monday 21 March 2016 and the child N be permitted to leave Australia for that purpose without the permission of the respondent father.
7.Otherwise, the Application in a Case of the wife filed on 15 August 2015 and the Response of the husband thereto filed on 1 October 2015 be dismissed and, for the avoidance of doubt, the father’s application to have the children placed on the watch list is not granted.
8.The further hearing of the pending children’s proceedings, which are part-heard, be set down before me to commence at 10.00 am on 18 January 2016 and thereafter be listed on 25, 27 and 28 January 2016 at 10.00 am.
9.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and…

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: [2015] FamCA 887
Decision Date: 1 October 2015

CaseChat Overview and Summary

In the matter of Nixon & Nixon, Bennett J of the Family Court of Australia considered an application by the mother concerning the children of the marriage and a response filed by the father. The dispute involved the children's ability to obtain Australian passports and the father's request to place the children on a watch list.

The primary legal issues before the Court were whether the mother should be permitted to apply for Australian passports for the children without the father's signature, and whether the father's application to place the children on a watch list should be granted. The Court also had to determine the mother's entitlement to travel with one of the children for an overseas tour.

Bennett J granted the mother leave to apply for passports for the children, notwithstanding the father's refusal to sign the application forms. The Court ordered that the passports, once issued, be held by the Registry Manager for safekeeping, with specific provisions for the mother to use the passport of one child, N, to facilitate participation in an overseas tour. The father's application to place the children on a watch list was dismissed. The Court also dismissed the father's applications against ASIC, the ATO, and the AFP. The further hearing of the children's proceedings was scheduled for January 2016.

Orders

Orders of the court

IT IS ORDERED THAT:

1. I grant leave to the husband to file his Response to an Application in a Case dated 30 September 2015 and his affidavit in support sworn or affirmed on 30 September 2015.

2. That the mother be permitted to apply for an Australian Passport for each of the children of the marriage N born … 2000, S born … 2001 and I born … 2005 notwithstanding that the father of the children has not signed the passport application forms.

3. Immediately upon receipt by the mother of the passport(s), the mother attend to the following:-

a) To make three copies of the endorsed pages of each passport and send a copy to the father and the independent children’s lawyer; and

b) To send the passport, or passports to the Registry Manager of this Registry of the Court by pre-paid post to be held for safekeeping.

4. Until further order, the Registry Manager of this Registry of the Court hold the passports safely pending further order of the Court subject only to the operation of paragraphs 5 and 6 hereof.

5. The mother be and is hereby entitled and authorised to do all acts and things necessary to enable the child N born … 2000 (“N”) to participate in the exchange tour to Europe from 3 April 2016 to 11 May 2016.

6. For the purpose of participation by N in the said tour, the Registry Manager of this Registry of the Court cause N’s passport to be posted to the mother, or at the direction of the mother, by not later than Monday 21 March 2016 and the child N be permitted to leave Australia for that purpose without the permission of the respondent father.

7. Otherwise, the Application in a Case of the wife filed on 15 August 2015 and the Response of the husband thereto filed on 1 October 2015 be dismissed and, for the avoidance of doubt, the father’s application to have the children placed on the watch list is not granted.

8. The further hearing of the pending children’s proceedings, which are part-heard, be set down before me to commence at 10.00 am on 18 January 2016 and thereafter be listed on 25, 27 and 28 January 2016 at 10.00 am.

9. My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and made available to the parties.

AND IT IS NOTED that the application of the father for orders against the Australian Securities and Investments Commission, the Australian Taxation Office and the Australian Federal Police is dismissed pursuant to Section 118 of the Family Law Act 1975.

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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