Nixon & Nixon  FamCA 887 (1 October 2015)
Last Updated: 28 October 2015
FAMILY COURT OF AUSTRALIA
IT IS ORDERED THAT:
- 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.
- 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.
- Immediately upon receipt by the mother of the passport(s), the mother attend to the following:-
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nixon & Nixon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT MELBOURNE
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
- This matter comes before me on an application in a case filed by the mother on 29 September 2015 seeking, in essence, that passports issue for the children N (15 years old) and S (14 years old) to enable them to travel on international school exchange programs. N is to travel in April and May of 2016 and S, it is anticipated by the mother, would travel in 2017.
- The husband, by a response in respect of which I have given leave to be filed today, appears to oppose the order and seeks an order that the children be placed on the watch list to prevent their exit out of Australia; similarly, that the mother be placed on the watch list. Further other orders, if I could call them that, are sought by the father in the response and they refer to the Australian Securities and Investments Commission, the Australian Taxation Office and the Australian Federal Police being requested to investigate various people including the wife and a number of legal practitioners for unspecified offences in relation to a number of pieces of legislation. He also seeks that the Australian Central Authority be joined as a party to this matter. The application for further other orders were not pressed by the father today, is not founded on any jurisdiction which I recognise and will, accordingly be dismissed. I am satisfied that the further other orders sought by the father are vexatious proceedings within the meaning of s 118 of the Act and pursuant to that power dismiss that part of the application.
- What remains are proceedings which are confined by the parties to the issues of passports for the girls and consequential orders to allow the older girls to participate in overseas school tours. I will have regard to the interests of each of the each individual girl as the paramount consideration. The additional considerations set out in s 60CC(3) of the Act are not of great relevance over and above me being satisfied (as I am) on the evidence of the mother and the independent children’s lawyer that the girls want to participate in the tours and that they will not be missing out on any time with the father or time at school in order to do so.
- Turning to the issue of passports for the two older children, it seems to me that a sensible course is to empower the mother to make application for passports for all three children. There is only one child whose travel dates are imminent and that is N who has been accepted into a school program to go to Europe in 2016. I have read the affidavit material submitted by both of the parties. I have had the benefit of hearing from the independent children’s lawyer as to her conclusion that passports should issue for all three children and, in relation to N, that the mother be entitled to proceed with N’s application and participation in the school program for which she has been accepted.
- The reasons why the mother seeks the passports are sound. The reasons why the father opposes the passports appear to me to relate to unresolved financial issues that he wishes to agitate but which are not relevant to my considerations about whether passports ought to issue for the children. For instance, he contends that the mother has undisclosed funds overseas. He submits that it’s reasonable for the court to infer that the assets to which the mother is entitled overseas are significant. He submits that it is reasonable for the court to infer that the mother has had difficulty in accessing those assets from within Australia and that she may have to present herself in person in order to access the assets. The father says that there is a real and genuine prospect that if all three children were permitted to travel overseas they would not return. I am unable, as a matter of logic or commonsense, to draw any of the inferences that the husband invites me to draw. It is not anyone’s proposal and nor do I grant permission for all three children to be removed from Australia at this time.
- I am satisfied that it is in the best interests of the children for the mother to be able to apply for passports in a timely and convenient way if she chooses to do so. Alternatively, she can apply for a passport for each child as and when the need arises. The father makes a secondary application and that is that the children’s names be placed on the watch list to prevent their exit from Australia. That is a reasonably common order under the legislation but the frequency with which it is used does not in any way lessen the fact that the court should only make orders when it is deemed necessary to do so. I am not persuaded by anything that the father has submitted or by the evidence that I have heard in this matter to date that there is an appreciable risk that the mother will attempt to remove the children otherwise than by agreement with the father or the permission of the court for her to do so.
- The next matter to which I turn my attention is to the conclusion of the pending child-related proceedings. They have limped along for what seems an eternity. The matter has been set down for hearing and allocated days which could not be used because the husband has been in ill health. The husband says that his ill health has been referable to one virus and two bacterial infections which necessitated his admission to hospital for five days but he says that he is in reasonable health now. To the extent that he is fatigued, he should make sure that he rests up before he comes back to court on the next occasion.
- I have allocated some hearing dates to this matter. It is my sincere hope that we can finalise it within those hearing days. This matter has reached the stage where the further prolongation of the case is a matter which I think could impact adversely on the interests of the children and that is something that I have to have regard to pursuant to Division 12A of Part VII of the Act and do so.