SEIDEL & DIXSON - [2019] FamCA 25

FAMILY COURT OF AUSTRALIA

SEIDEL & DIXSON

[2019] FamCA 25

FAMILY LAW – CHILDREN – Undefended final parenting hearing – Where the father has perpetrated serious family violence against the mother – Where the father has mental health problems – Where the father poses an unacceptable risk of psychological harm to the children on the basis of exposing the children to family violence – Where it is not in the children’s best interests to have contact with the father – Orders made for the children to live with the mother and spend no time with the father – Orders made restraining the father from contacting or approaching the mother and children.

Births Deaths and Marriages Act 1995 (NSW) s 28(5)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 68B and 68C

Jarrah & Fadel [2014] FamCAFC 14
McCall & Clark [2009] FamCAFC 92 (2009) FLC 93-405; 41 Fam LR 483
Mazorski & Albright (2007) Fam LR 518

APPLICANT:

Mr Seidel

RESPONDENT:

Ms Dixson

FILE NUMBER:

PAC

881

2015

DATE DELIVERED:

25 January 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

21 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

No Appearance

SOLICITOR FOR THE RESPONDENT:

Sarah Bevan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Braine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kathryn Renshall Lawyers

Orders

That the mother has sole parental responsibility for X born … 2006 and Y born … 2008 (“the children”).
That the children live with the mother.
That the children spend no time with the father.
Pursuant to s 68B of the Family Law Act 1975 (Cth) Mr Seidel born … 1980 is restrained:
(a) From being within 200 metres of the children and the mother, Ms Dixson born … 1989 (“the mother”);
(b) Contacting the children or the mother in any way including telephone, social media, written correspondence or through any third party.
Order 4 is made for the personal protection of the children and the mother.
In the event that Mr Seidel does not comply with Order 4, and a police officer believes, on reasonable grounds, that the injunction has been breached, then such police officer is authorised to arrest Mr Seidel without warrant pursuant to the provisions of s 68C of the Family Law Act 1975 (Cth).
The child Y Seidel (female) born … 2008 shall be henceforth known as Y Dixson.
The mother Ms Dixson is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as Y Seidel (female) born … 2008 be now registered as T Dixson.
Pursuant s 28(5) of the Births Deaths and Marriages Act 1995 (NSW) the Registrar register the child’s name in the form specified in Order 7 herein.
The child X Seidel (male) born … 2006 shall be henceforth known as X Dixson.
The mother Ms Dixson is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X Seidel (male) born … 2006 be…

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.

Continue reading SEIDEL & DIXSON

Details

AGLC: SEIDEL & DIXSON [2019] FamCA 25
Case: [2019] FamCA 25
Decision Date: 25 January 2019

CaseChat Overview and Summary

In the matter of *Seidel & Dixson*, Hannam J of the Federal Circuit and Family Court of Australia made orders concerning the parental responsibility, residence, and contact arrangements for two children, X and Y, and also addressed the children's names and international travel. The dispute involved the mother, Ms Dixson, and the father, Mr Seidel.

The court was required to determine the appropriate orders for the children's upbringing, including who would have sole parental responsibility, where they would live, and whether any contact with the father was appropriate. Additionally, the court considered the children's surnames and the mother's authority to apply for passports for them, including international travel.

Hannam J ordered that the mother have sole parental responsibility for the children, that they live with her, and that they spend no time with the father. Pursuant to section 68B of the *Family Law Act 1975* (Cth), Mr Seidel was restrained from being within 200 metres of the children and the mother, and from contacting them in any manner, including through third parties. These protective orders were made for the personal protection of the children and the mother, with provisions for arrest without warrant by police in the event of a breach, as authorised by section 68C of the *Family Law Act 1975* (Cth). The court also ordered that the children, Y and X, be henceforth known as Y Dixson and X Dixson respectively, and authorised the mother to apply to the Registrar of Births, Deaths and Marriages in New South Wales to register these name changes, as permitted by section 28(5) of the *Births Deaths and Marriages Act 1995* (NSW). Finally, the children were permitted to travel internationally without the father's consent, with the mother being the sole person with parental responsibility for passport applications.

Orders

Orders of the court

That the mother has sole parental responsibility for X born … 2006 and Y born … 2008 (“the children”).

That the children live with the mother.

That the children spend no time with the father.

Pursuant to s 68B of the Family Law Act 1975 (Cth) Mr Seidel born … 1980 is restrained:

(a) From being within 200 metres of the children and the mother, Ms Dixson born … 1989 (“the mother”);

(b) Contacting the children or the mother in any way including telephone, social media, written correspondence or through any third party.

Order 4 is made for the personal protection of the children and the mother.

In the event that Mr Seidel does not comply with Order 4, and a police officer believes, on reasonable grounds, that the injunction has been breached, then such police officer is authorised to arrest Mr Seidel without warrant pursuant to the provisions of s 68C of the Family Law Act 1975 (Cth).

The child Y Seidel (female) born … 2008 shall be henceforth known as Y Dixson.

The mother Ms Dixson is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as Y Seidel (female) born … 2008 be now registered as T Dixson.

Pursuant s 28(5) of the Births Deaths and Marriages Act 1995 (NSW) the Registrar register the child’s name in the form specified in Order 7 herein.

10.

The child X Seidel (male) born … 2006 shall be henceforth known as X Dixson.

11.

The mother Ms Dixson is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X Seidel (male) born … 2006 be now registered as X Dixson.

12.

Pursuant s 28(5) of the Births Deaths and Marriages Act 1995 (NSW) the Registrar register the child’s name in the form specified in Order 10 herein.

13.

The Court directs that the mother forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.

14.

The children are permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to the children. The mother shall be the only person with ‘parental responsibility’ of the children for the purposes of applying for, and being issued with, an Australian passport for the children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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