FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nixon & Nixon [2024] FedCFamC2F 94
File number(s): ADC 4209 of 2020 Judgment of: JUDGE JENKINS Date of judgment: 1 February 2024 Catchwords: FAMILY LAW – parenting – final hearing – unacceptable risk – children with complex special needs – family violence substantiated – whether risk can be ameliorated – insight into family violence and the impact on children – orders made for children to live with mother and sole parental responsibility – day time only with father Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 65D, 65DAC, 68P, 68Q
Cases cited: Grella & Jamieson [2017] FamCAFC 21
Isles & Nelissen [2021] FedCFamC1F 295
Masson & Parsons [2019] HCA 21; (2019) 266 CLR 554
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Division: Division 2 Family Law Number of paragraphs: 185 Date of last submission/s: 25 May 2023 Date of hearing: 6-9 March and 5 May 2023 Place: Melbourne Counsel for the Applicant: Ms Boyle Solicitor for the Applicant: C M Tucker & Associates Counsel for the Respondent: Ms Miller Solicitor for the Respondent: Marie Stokes Family Lawyers ORDERS
ADC 4209 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NIXON
Applicant
AND: MS NIXON
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
1 FEBRUARY 2024
Order amended pursuant to r 10.13(1)(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 1 February 2024
THE COURT ORDERS THAT:
1.The children X born in 2013 and Y born in 2016 ("the children") live with the mother.
2.The mother have sole parental responsibility for the children subject to forthwith notifying the father upon making any long term decisions in relation to the children.
3.The father spend time with the children:
(a)Each Saturday from 10.30am until 4.30pm;
(b)On the first Sunday of the short school holidays from 10.30am until 4.30pm;
(c)On the first, third and fifth Sunday of the long school holidays from 10.30am until 4.30pm;
(d)On Father's Day from 10.30am until 4.30pm;
(e)If the children's birthdays fall on a Sunday, from 10.30am until 4.30pm;
(f)If the children's birthdays fall during the school week, from afterschool until 6pm;
(g)On Christmas Day from 3.00pm until 9.00pm each year.
4.Handovers occur at the B Children's Contact Centre or if unavailable at the McDonalds closest to that centre.
5.The mother be permitted to suspend the father's time in the long summer holidays for a period of up to 2 weeks to take the children on a holiday provided the mother gives the father 30 days written notice in advance and such time does not coincide with Christmas Day.
6.Each parent be at liberty to enrol the children in extracurricular activities during their time with the children and the other parent be restrained from being in attendance during those activities.
7.The mother forthwith notify the father by email of the children's engagement with…
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CaseChat Overview and Summary
The court had to determine whether the risk posed by the father to the children could be sufficiently ameliorated to allow for shared parental responsibility, or if sole responsibility with the mother was necessary to protect the children. This involved an assessment of the father's insight into the family violence and its impact on the children, as well as his ability to provide a safe environment. The court also needed to consider the mother's capacity to provide for the children's special needs and whether the father's proposed arrangements would be in the children's best interests.
In reaching its decision, the court considered evidence of the father's history of family violence, his lack of insight into the impact of this violence on the children, and the children's complex needs. The court found that the risk posed by the father could not be sufficiently mitigated to allow for shared parental responsibility. Consequently, the court ordered that the children live with the mother and that she have sole parental responsibility, with the father having specified contact times. The court also imposed various restrictions and obligations on both parents to ensure the children's safety and well-being.
The court's final orders included detailed provisions for the children's living arrangements, contact with each parent, communication between the parents, and restrictions on the father's behaviour. The mother was granted sole parental responsibility and the father was limited to specified daytime contact with the children, with specific instructions on handover locations and conditions. The court also included provisions for the children's education, health services, and emergency communication between parents. The orders reflect the court's careful consideration of the evidence and its determination that sole parental responsibility with the mother was in the best interests of the children.
Orders
Orders of the court
ADC 4209 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR NIXON
Applicant
AND:
MS NIXON
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
1 FEBRUARY 2024
Order amended pursuant to r 10.13(1)(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 1 February 2024
THE COURT ORDERS THAT:
1. The children X born in 2013 and Y born in 2016 ("the children") live with the mother.
2. The mother have sole parental responsibility for the children subject to forthwith notifying the father upon making any long term decisions in relation to the children.
3. The father spend time with the children:
(a) Each Saturday from 10.30am until 4.30pm;
(b) On the first Sunday of the short school holidays from 10.30am until 4.30pm;
(c) On the first, third and fifth Sunday of the long school holidays from 10.30am until 4.30pm;
(d) On Father's Day from 10.30am until 4.30pm;
(e) If the children's birthdays fall on a Sunday, from 10.30am until 4.30pm;
(f) If the children's birthdays fall during the school week, from afterschool until 6pm;
(g) On Christmas Day from 3.00pm until 9.00pm each year.
4. Handovers occur at the B Children's Contact Centre or if unavailable at the McDonalds closest to that centre.
5. The mother be permitted to suspend the father's time in the long summer holidays for a period of up to 2 weeks to take the children on a holiday provided the mother gives the father 30 days written notice in advance and such time does not coincide with Christmas Day.
6. Each parent be at liberty to enrol the children in extracurricular activities during their time with the children and the other parent be restrained from being in attendance during those activities.
7. The mother forthwith notify the father by email of the children's engagement with a new medical or allied health professional including the name, phone number and address of that health professional.
8. Both parents:
(a) May liaise with any educational institution, including private tutors, attended by the children in relation to the progress of the children; and
(b) May receive, direct from the school, all school reports, newsletters, and other information which the parent may reasonably request, at the requesting parent's expense.
9. Both parents:
(a) May liaise with any person providing a health service, as defined in the Privacy Act 1988 (Cth), to the children; and
(b) May receive, direct from that person, all reports, results and any other health information, as defined in the Privacy Act 1988 (Cth), relating to the children, at the requesting parent's expense.
10. In the event of any medical emergency involving the children, the parent having care of the children shall immediately notify the other parent, either by text message or telephone call.
11. From 6.00pm to 7.00pm each Wednesday and each of the children's birthdays, that is spent with either the father or the mother:
(a) That parent initiate a call to the other parent via a video conferencing application;
(b) That parent must ensure that the children are available at the above time; and
(c) That parent must ensure that the children have privacy during their communication with the other parent.
12. The father be at liberty to send the mother one email within 24 hours of his time with the children with any issues that have arisen during his time and the mother respond to that email within 24 hours thereafter.
13. Pursuant to section 68Q of the Family Law Act 1975 (Cth), to the extent that any intervention order is inconsistent with these orders, the intervention order is invalid.
14. The father be restrained by injunction from:
(a) Denigrating the mother to or in the hearing of the children or permitting any other person to do so;
(b) Verbally or physically abusing the children or permitting any other person to do so;
(c) Leaving the children in the care of the paternal grandmother or permitting the paternal uncle (Mr C) to be left unsupervised with the children;
(d) Attending the children's school or any school events, save and unless the mother notifies him in writing that she will not be in attendance;
(e) Attending any medical or allied health appointment of the children at which the mother is in attendance,
(f) Physically disciplining the children;
(g) Communicating with the mother in any form, either by text, email, or telephone, save in accordance with orders 9 10 and 11 12 herein.
15. The mother be restrained by injunction from denigrating the father to or in the hearing of the children or permitting any other person to do so.
16. All extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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