Nixon and Nixon - [2016] FamCA 23

FAMILY COURT OF AUSTRALIA

NIXON & NIXON

[2016] FamCA 23

FAMILY LAW – ADJOURNMENT – Father’s application for an adjournment is refused –inadequacy of father’s evidence in support of application for adjournment – interests of children dictate that hearing should proceed.

APPLICANT:

Ms Nixon

RESPONDENT:

Mr Nixon

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Ms C Smith

FILE NUMBER:

MLC

2061

2009

DATE DELIVERED:

25 January 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

25 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Nixon in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms D Harris

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 Application in a Case in which he seeks that the hearing this day be vacated and rescheduled no later than 1 April 2016 and the affidavit in support.

IT IS DIRECTED:

2.That the husband’s Application in a Case be returnable this day.
3.The letter date 22 January 2016 from the father to Registrar Field (two pages) be marked Exhibit “H11” and remain on the Court file.
4.An urgent email be sent electronically by the case coordinator to the husband addressed to … in the following terms:-
Dear [Mr Nixon],
MATTER OF [NIXON] - MLC2061/2009
Leave has been granted for your application to postpone this hearing to after 1 April 2016 to be filed and be returnable today ("the adjournment application").
The independent children's lawyer and the wife both oppose your application and seek to proceed with the case today. The Court has been informed that it will be submitted by them that you are attempting to delay the finalisation of this case and that you are not too ill to attend Court. Further, or in the alternative, that there is insufficient expert evidence to support your assertions as to your medical condition.
The Court's attempt to contact you by telephone this morning to mobile number … results in no progress.
Please note that Justice Bennett will hear the adjournment application today. If you wish to attend Court today please notify the Court immediately in which case the matter will be stood down until 2.30 pm. Otherwise the adjournment application will be determined in your absence.
If your adjournment application fails the case will proceed.
If the case proceeds and you are not at Court:-
1.      the independent children's lawyer will introduce the further evidence in respect of which she has obtained leave;
2.      the children may be interviewed to ascertain their current views or any change in views previously expressed; and
3.      the proceedings may be finally determined without any further input by you.
In terms of contacting the Court immediately please contact the writer by email at ….

IT IS FURTHER ORDERED THAT:

5.The Application in a Case filed by the father with leave this day be and is hereby dismissed.
6.The proceedings will otherwise continue to be listed for final determination and resume on Wednesday 27 January 2016 at 10.00 am.

IT IS REQUESTED:

7.That the Department of Child Dispute Services of this Registry of the Court make Ms KE available to interview the children N born … 2000, S born … 2001 and I born 10 June 2005 on the afternoon of Thursday 28 January 2016, at a location and venue of Ms KE’s choice, and then to deliver a report to the Court orally pursuant to s62(G)(2) of the Family Law Act 1975 as to the current views of the children and any further or other recommendations that she has.

IT IS FURTHER DIRECTED:

8.That my reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.
9.That the email from the husband sent to the Court at 12:18:31 this day be marked Exhibit “H12” and remain on the Court file.
10.That the email sent by the case coordinator to the husband at 12.52 pm this day and the reply to that email sent by the husband at 13.07 pm this day be marked Exhibit “H13” and remain on the Court file.

AND IT IS NOTED that this matter was stood down to enable paragraph 4
to be complied with and the Court resumed following the receipt of the reply from Mr Nixon now labelled as Exhibit “H13”.

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

FILE NUMBER: MLC 2061 of 2009

Ms Nixon

Applicant

And

Mr Nixon

Respondent

REASONS FOR JUDGMENT

Ex Tempore

These are my reasons for refusing the father’s application for an adjournment of these proceedings until after 1 April 2016. I am delivering them now ex tempore because the father has indicated that absent an adjournment, he will appeal any final determination of the matter. I think, with respect, he probably would mean to appeal this order refusing his application for an adjournment at least as the first step.
This matter comes before me as the adjourned date of the final hearing of parenting proceedings concerning the three girls, N who is 15 years old, S who is 14 years old and I who is 10 years old. These proceedings have been in final hearing stage since January 2014 and have been interrupted on a number of occasions. The case was thought to be finalised on 10 October 2014, at which point I had heard the evidence to be adduced and ordered final submissions in writing. However, on 10 November 2014, the independent children’s lawyer made application to adduce further evidence in the case, which application was granted by me over the objection of the father on 27 November 2014. The father then lodged an appeal against my decision to permit the independent children’s lawyer to adduce further evidence. The father did not proceed with that appeal and a notice of discontinuance was, I understand, filed on 13 March 2015.
As best I recollect, there was an endeavour to re-list the matter between April and July 2015 for the purpose of receiving the further evidence which the independent children’s lawyer had gathered, including by the issuance of subpoenas to produce documents. Broadly speaking, I understood that the further evidence which was sought to be adduced is highly corroborative of the case of the mother and the independent children’s lawyer, and undermining of the father’s case in relation to his financial capacity to support the children in the context of s60CC(3)(i), his credibility and parenting capacity (s60CC(3)(f))(i)) and his addiction or continued use of alcohol and/or cocaine.
In the principal proceedings, the father had said that he had been, on occasion, without accommodation or had stayed at certain institutions at the expense of others. Some of the evidence which the independent children’s lawyer semaphored would be adduced with leave was to the effect that during at least one of these periods, the father had accommodated himself for an extended period at the Hotel 1 in Suburb YS, which is not an inexpensive establishment. The father had also said that he had been provided with accommodation by a relative of his then partner — the partner being Ms PS and her relative, being Mr CW.
Further evidence sought to be adduced by the independent children’s lawyer was that the father had in fact been put out of accommodation by Mr CW in circumstances where Mr CW had found it necessary to make a complaint to the police. The evidence which is to be adduced was not directly from Mr CW, but is a statement taken from Mr CW by Victoria Police in the course of them investigating certain complaints. It is apparently evident from the complaints that the husband had variously been affected by alcohol and/or had been taking illicit drugs such as cocaine.
Other evidence related to the father’s possession of a prestige motor vehicle which the father testified had been repossessed.
My recollection is that the further hearing of the matter in 2015 did not proceed because the father said that he was ill. However, as I provide these reasons, I am unable to locate correspondence or a record of the court to that effect. In any event, on 15 August 2015, the mother made an interim application asking for passports to issue for the two older children to facilitate their attendance at overseas school-related trips. The father filed a response to that application on 30 September 2015 opposing the mother’s application. On 1 October 2015, I allowed the mother’s application and ordered that the passports be issued as she requested.
Also on 1 October 2015, I set the matter down to be resumed in January 2016. It was to commence on 18 January 2016, although on or about 8 December 2015 a notification was issued by the court to all parties that the new hearing dates would in fact be today, Monday 25 January 2016 until 29 January 2016, not including tomorrow which is a public holiday because it is Australia Day.
In support of today’s application, the father swore an affidavit on 21 January 2016. The father deposes that he “cannot attend court in person or via other means for some months ahead for the reasons deposed below”.
The father deposes at [3] that he has been extremely sick and had ongoing periods of ill health throughout 2015. He deposes at [3] to being “confined to a wheelchair and/or was unable to walk without assistance” for the second half of 2015. The husband deposes at [4] that he was hospitalised extensively in May 2015 in an isolation unit of the HA Hospital in Melbourne and was diagnosed with severe respiratory symptoms and treated with antibiotics. He says that he was “again hospitalised from 14 December 2015” to an unstated date again in the Allergy Immunology and Respiratory Ward at the HA Hospital in Melbourne, and that he was “advised that the cilia in my lungs have suffered significant damage”. He deposes at [6] to having been
hospitalised on 31 December 2015 in the emergency department of the [HA Hospital]. I presented as I was unable to breathe.
He deposes at [7] that:
I understand that I was hospitalised in the intensive care unit from 6 January 2016 at the [HA Hospital] (I was in a medically induced coma so I need, for the purposes of this affidavit, to rely upon the advice of medical staff at the [HA Hospital] and others for this point). This is the first time in my life I have had to attend an intensive care unit. I understand — I suffered a serious head strike. After admission, a number of injuries were discovered which were suggested that I had collapsed more than once — most likely due to an inability to breathe.
The husband deposes at [9] to living
day to day in a significant amount of pain (even after taking lawfully prescribed medication).
He deposes at [10]:
I have suffered significant concussive head injuries that temporarily, but not permanently, have impaired my cognitive functions. I cannot concentrate.
He says at [12]:
I do not expect to be involved in any form of gainful employment or consulting or other economic activity for at least a year, depending on the rate and the efficacy of my recovery. This situation may or may not change. Currently I cannot work ... Should the matter proceed on 25 January 2016, it is inevitable that a miscarriage of justice will occur and that I and my daughters ... will have been denied procedural fairness. I fatigue extremely easily. It is extremely difficult for me to conduct more than 30 to 60 minutes of continuous activity without resting. This includes both physical activity and semi-intellectual activities. I cannot read or text for more than five minutes typically.
The father deposes at [15] that his “symptoms are consistent with Traumatic Brain Injury.” However, the affidavit evidence which he submits in support of his application is absent any expert opinion to verify that assertion.
The father deposes at [24] that:
I was admitted to the intensive care unit on 7 January 2016 following a head strike. I was placed in an induced coma for a day and a half. I have collapsed a number of times over the last year. A true copy of the photos taken on 7 January 2016 are attached.
The father deposes at [35]–[38] that he cannot drive a motor car or play sport, including polo. Finally, he deposes:
I will not be attending Court on 25 January 2016 in person or by telephone/video link. I simply cannot. I will be forced to lodge an appeal should the Court — to purport a holding of the hearing without me. I and my daughters will be denied procedural fairness. I have been advised that I will recover over time and that it is realistic to expect some improvement over the next six to eight weeks. I am due to return to the [HA Hospital] on 8 February 2016.
However, as previously indicated, there is an absence of any expert opinion to verify the advice to which the father deposes.
The independent children’s lawyer and the mother oppose the father’s application that these days be vacated. They concede that the husband has had a number of hospital admissions within the last 12 months or so. In fact, the independent children’s lawyer has secured the production at Court of the records of HA Hospital for the father’s admissions. It is submitted, however, that the father is attempting to construct an adjournment application based on his inability to attend for medical reasons when really what he wants to achieve is to prevent the further evidence of the independent children’s lawyer being put before the Court and available to the Court for a determination of these long-standing and unresolved parenting proceedings.
Ms Harris, for the independent children’s lawyer, led the argument in opposition to the adjournment and did so in reliance on a number of documents, including emails from the father and notes from the hospital at which the father has been treated. It is submitted that against this historical background, the husband’s application for an adjournment of the proceedings amounts to nothing more than a ruse to secure for himself further delay so that the parenting issues can remain unresolved. The independent children’s lawyer submits that the proceedings have been unresolved for an extended period and that the children, whose best interests she represents, deserve finality.
The mother supports the submissions of the independent children’s lawyer in every respect. Further, in relation to the desirability of resolving these proceedings for the children, she has said from the bar table, and I accept, that the fact that the proceedings are not resolved has resulted in the children feeling less secure in their life in Canberra than they should feel, that each child has indicated to her that they are concerned and apprehensive that the father may appear at their schools or somewhere around where they live and try to collect them and take them back to Melbourne or elsewhere.
The mother has expressed that the unresolved nature of the proceedings have resulted in the children not feel optimally settled, in particular, I, who, as the youngest daughter, has less of a capacity to assimilate all of the information and to make a reasoned prediction as to the outcome of these proceedings. Whereas the mother says that the children have a “real fear” of being removed and, therefore, are somewhat unsettled, she makes the point clearly that they are at home and happy in their life in Canberra and are performing very well and that the older children have obtained employment. However, the children want the Court case to be finalised, as does the mother.
The submissions of the independent children’s lawyer and further submissions and examples and descriptions provided by the mother persuade me that further delay in finalising these proceedings is going to be deleterious to the children. Of course proceedings may be delayed to the detriment of the children if it is thought that the greater good lies in the proceedings being better prepared and presented. However, they say that this not such a case and I accept that is so.
I now turn to the historical background against which the independent children’s lawyer and the mother say that the father’s application for an adjournment ought to be considered.
The hearing dates in January 2016 were set on 10 October 2015. On 8 December 2015, the case coordinator for this matter wrote to the parties informing them that the hearing would not commence on 18 January 2016 but would commence on 25 January 2016 and conclude on 29 January 2016.
On the morning of 15 December 2015, the father wrote to the case coordinator stating that he was currently in the HA Hospital in isolation with a respiratory illness and
at this stage, it is unlikely, if not impossible, for me to attend court on those dates. The [HA Hospital] has already been subpoenaed — you should have copies of my CT scan evidencing significant lung nodule/scar tissue/cancer. The dates, therefore, need to be vacated.
The father was notified on the same day by the case coordinator that the dates would not be vacated and
therefore, the matter will begin on Monday, 25 January 2016 and proceed until 29 January 2016.
The father wrote again on 15 December 2015 saying,
[f]or the avoidance of doubt, there is limited to no prospect of me appearing in court in person. Nor am I able to prepare … I have been extremely sick over the last year — I have already had one cancer removed (this is in evidence). I have been wheelchair-bound for parts of this year. [Ms Nixon’s] email represents a form of harassment and fails to deal with the relevant medical condition. The dates must be vacated in the circumstances.
The case coordinator responded to that email within the hour on 15 December 2015 saying,
[a]s there is no consent to adjourn the hearing on 25 January 2016, if you wish to seek an adjournment of a date that is still some five weeks away, you must file and serve an application in the case, together with a supporting affidavit attaching medical evidence to support your claim.
On 18 January 2016, the father sent an email to the independent children’s lawyer, the mother and to the case coordinator of this Court. He wrote as follows:
The dates currently scheduled for hearing before Bennett J in relation to the matter of [Nixon] must be vacated. I am extremely unwell and am not able to attend court. True copies of 2x medical certificate are attached herewith, one from the [HA Hospital] and one from the [CO] Medical clinic. I have recently been discharged from intensive care unit at [HA Hospital] (photos attached). I’m due to return to hospital on 8 February 2016. It is not realistic to expect me to attend court until possibly April 2016 at the earliest. I spent a significant amount of time hospitalised in May 2015 at the [HA Hospital] in the respiratory ward.
I was further hospitalised from 14 to 16 December 2015 in the respiratory ward, on 31 December 2015, in the emergency department and from 6 January 2016 in the intensive care unit/trauma unit … It is entirely unreasonable and, indeed, offensive to expect me to bring an application to vacate these dates in the circumstances — I am lodging a complaint if compelled to.
On 18 January 2016, the independent children’s lawyer sent a response to the father by email writing,
Please request your treating practitioner to provide a detailed report on your health and the reasons for your hospitalisation, the current treatment, diagnosis and prognosis. A medical certificate saying that you are unfit for work is not sufficient to understand your medical conditions. Photographs are also not sufficient to assist in explaining your condition and treatment. I understand what you are saying regarding your condition. However, it is requested that independent evidence be provided to explain and confirm your medical treatment and condition.

The father then responded within a matter of moments saying,
[y]ou have all of the information that you need. It is fairly self-evident. If you want this you can pay for it. There is no prospect of me attending court — so rather than waste more of the parties’ time — the only critical option is to vacate the relevant dates.
The next day, on Tuesday, 19 January 2016, the father wrote to the independent children’s lawyer in the following terms:
Dear Carolyn,
I note that you have failed to confirm that the hearing dates before Bennett J have been vacated. There is no way that I can attend court in the circumstances given my recent hospitalisation in intensive care and for the reasons set out in my email of yesterday and supporting medical certificates and photographic evidence. You have already wasted a lot of money by obfuscating and obstructing Mills Oakley from resolving this matter — hence, I am self-represented again. I remind you that you are required to be a model litigant and draw your attention to the Victorian Model Litigant Guidelines. If I need to engage counsel to bring an application to vacate the hearing dates I will be seeking costs against you. Please confirm that the hearing dates are vacated by 5 pm today.
On 20 January 2016, Registrar Field of this registry wrote to the parties in the following terms:
I refer to the recent email sent to the Court by [Mr Nixon]. As there is no consent by all parties to adjourn the hearing commencing 25 January 2016, it remains listed before the Honourable Justice Bennett that day.
As previously advised, if [Mr Nixon] is seeking an adjournment of the proceedings, an application to that effect must be made to the Court and supported by any affidavit setting out the reasons for the adjournment together with all relevant medical evidence. Any affidavit from a medical practitioner should set out the history of the medical treatment provided to [Mr Nixon] to date, his current diagnosis and prognosis, together with an opinion as to [Mr Nixon’s] capacity to participate in the hearing. That medical practitioner may also be required to be available for the hearing for cross-examination purposes by other parties.
When the matter commenced this morning, Mr Nixon was not in attendance at Court. The matter was called at the door of the Court and it was called at the door of Court 4A where the matter had previously been listed.
The father’s affidavit and application which had been sent to Registrar Field were accepted for filing by me and were permitted to proceed today. On that point, the fact that the application and the evidence in support would be considered by the Court this day could not come as a surprise to the father because he has inserted, as a “court date,” 25 January 2016. The submissions of the independent children’s lawyer and the mother are that Mr Nixon does not suffer the level of incapacity to which he deposes.
When it was clear that the independent children’s lawyer and the mother would seek to impugn the fact that the father’s medical state precluded him from participating in the proceedings this day I required a call to be placed to the last known mobile telephone number for the father. That’s a telephone number on which the mother informs the Court that she received a text message from the father on Christmas Day just gone. It is also the telephone number which is recorded in the records of the HA Hospital as being the father’s mobile telephone number. There was no progress on that call. It does not ring out; it does not ring at all. It’s just a beep and then the line goes dead.
In those circumstances I ordered that a letter be written to the father. That letter was in the following terms:
Dear [Mr Nixon],
MATTER OF [NIXON] - MLC2061/2009
Leave has been granted for your application to postpone this hearing to after 1 April 2016 to be filed and be returnable today ("the adjournment application").
The independent children's lawyer and the wife both oppose your application and seek to proceed with the case today. The Court has been informed that it will be submitted by them that you are attempting to delay the finalisation of this case and that you are not too ill to attend Court. Further, or in the alternative, that there is insufficient expert evidence to support your assertions as to your medical condition.
The Court's attempt to contact you by telephone this morning to mobile number … results in no progress.
Please note that Justice Bennett will hear the adjournment application today. If you wish to attend Court today please notify the Court immediately in which case the matter will be stood down until 2.30 pm. Otherwise the adjournment application will be determined in your absence.
If your adjournment application fails the case will proceed.
If the case proceeds and you are not at Court:-
1.the independent children's lawyer will introduce the further evidence in respect of which she has obtained leave;
2.the children may be interviewed to ascertain their current views or any change in views previously expressed; and
3.the proceedings may be finally determined without any further input by you.
In terms of contacting the Court immediately please contact the writer by email at...”
The note from the case coordinator was sent to the father at 12.52 pm today.
When Court resumed this afternoon, it was apparent that at approximately 20 past 12 today the father wrote to Registrar Field saying, amongst other things, that he had a screenshot of the Australia Post tracking number for his documentation which he said was received by the Court at 7.03 am this morning.
And he wrote:
Should the hearing not be vacated this morning, I will be appealing to the Full Court Family Court. Please provide a transcript of this morning’s hearing as a matter or urgency and any associated orders. There are powerful grounds to believe that Debra Harris has committed serious deception offences in some of her submissions to her Honour and I will be seeking that the Full Family Court examine this in detail. My daughters are genuinely suffering in Canberra and do not want to be there. Her Honour has no hope of making a lawful finding without giving me the opportunity to be heard. I can undertake to attend court at the earliest practical opportunities, however I am too unwell at present.
As noted, the Court’s communication was sent to the father at 12.52 pm. By an email received at eight minutes past 1, that is less than 20 minutes after the Court’s email was sent, a response was received from the father. Accordingly, in eight minutes he read the email from the Court and composed, typed and transmitted the following response:
Dear [Case coordinator],
I currently do not have a telephone — it was soaked in blood and had its screen during the head-strike event and was subsequently crashed. I will get a new one when I am well enough to go to the Telstra shop.
I am not attempting to delay — I have been in intensive care at the [HA Hospital] and am too unwell to attend court. I can undertake to notify the Court and to attend at the earliest practical opportunity when I recover. I am spending a few hours a day out of bed. I ordinarily would attend (I have attended every other hearing). It therefore needs to be determined in my absence. I am too medicated to attend by telephone, I am exhausted just writing this email.
I require some details as to who will be interviewing my children, should this occur. Ms Smith traumatised N last time and she is not to go near her. I was traumatised by [Ms KE] — she is not to go near my daughters either. A complaint has been lodged with the Australian Healthcare Practitioner Regulation Agency in relation to [Ms KE] traumatising my daughters. Should their application be granted, I will be appealing to the Full Family Court and seek that the proceeding be stayed pending the appeal — a miscarriage of justice is inevitable. My daughters do not want to be in Canberra and I have inquiries of my extended family about living with them. They are desperate to leave and need to be enrolled in school prior to the start of the school year. Final parenting orders have already been made, the current parenting order was only secured by a series of lies told to this honourable Court. Please provide a transcript from this morning.
No transcript will be provided by Mr Nixon without him paying the appropriate amount of money for it. However, as indicated, I will endeavour to have these reasons expedited.
There are few things arising out of the father’s second email. First is that it was, with respect, a well-composed response to the matters raised in the communication from the case coordinator and executed in less than 10 minutes of his receipt of the message from the case coordinator. The second is that if he says he does not have a telephone, I wonder how the father managed to take a screenshot of the Australia Post tracking number referred to in the earlier email.
The father says in his last communication today:
I have been intensive care at the [HA Hospital] and am too unwell to attend court.
I will precis the notes from HA Hospital upon which the counsel for the independent children’s lawyer relies. There are two issues of relevance with the hospital records. The first issue is that the father has overstated or misrepresented the situation in terms of his presenting symptoms and the condition for which he was treated. Second, the independent children’s lawyer points to the fact that within the following history the father implicitly or expressly admits a use of substances such as cocaine which he has previously denied he was still using.
The documents confirm that the husband was admitted to HA Hospital on 29 May 2015. He presented as unable to breathe and said that he had been unwell for five weeks and had a productive cough. He was given two courses of antibiotics which did not improve the situation and down the line a “follow up” appointment was scheduled.
On 26 May 2015 there was a CT scan of the father’s chest. A five millimetre subpleural nodule was detected. The lungs and pleura are otherwise clear. No evidence of consolidation. The bronchi and trachea are normal. There is no evidence of pleural effusion. No enlarged lymph nodes are demonstrated in the mediastinal, hilar or auxiliary regions; the imaged upper abdomen is normal. There is no aggressive skeletal erosion.
The independent children’s lawyer points, correctly in my view, that the notes do not disclose the father having been required to come in for a follow up on the CT scan or being under an ongoing impediment such as would render him unable to appear in court. A note by a social worker taken at admission on 26 May 2015 records, inter alia, that the father lives with his partner and two year old daughter, there are significant legal stressors currently and he works in investments from home. “Currently living at the [HY Hotel], and has been there for a month. Social cigar smoker, four per year” and a consumption of alcohol is recorded as one bottle of red wine per night.
It is recorded that the father
presented to the sleep disorders clinic today for assessment of sleep apnoea but found to have significant cough. Partner reports snoring and occasional apnoea.
On 26 May 2015 the final report in relation to the CT chest examination of the father appears in the records of the hospital and the five millimetre subpleural nodule was noted:
The lungs and pleura are otherwise clear. No evidence of consolidation. The bronchi and trachea are normal. There was no evidence of pleural effusion. No enlarged lymph nodes are demonstrated in the mediastinal, hilar or auxiliary regions. The imaged upper abdomen is normal. There is no aggressive skeleton erosion.
By way of conclusion, it is noted:
A small subpleural nodule in the left lower lobe, probably an old inflammatory nodule or alter pulmonary lymph node. The lungs and pleura are otherwise clear.
On 29 June 2015 the father was presented at the emergency department of HA Hospital. The reasons for admission are noted by the hospital as “altered conscious state …. acute delirium, …. source”. The conclusion was that there was no evidence of acute inter-cranial pathology. The social worker’s notes disclose that the father said that he was usually healthy but considered that he was “dying” of a bacterial infection. The father is reported as stating he has one to two glasses of wine with dinner.
The next file that was produced by the HA Hospital on subpoena, relate to admissions in December 2015 and January 2016. The second file of hospital notes includes a letter dated 25 August 2015 from the respiratory physician at HA Hospital directed to a Dr BG at HY. It is a “courtesy note to say that [Mr Nixon] has not attended his review appointment in the respiratory outpatient clinic, sleep clinic or follow-up CT scan of his chest.” It was stated that Mr Nixon would be sent a further review appointment for the sleep disorders clinic and it is hoped that he would attend otherwise. His continuing care would be left in the hands of Dr BG. That was apparently done and an appointment scheduled for 10 December 2015. There is correspondence dated 10 December 2015 from the respiratory and sleep physician at HA Hospital to Dr BG saying to the effect that as a matter of courtesy they wish to inform the doctor that Mr Nixon did not attend his review appointment at the sleep clinic on 10 December 2015. The problem list for the father included “anxiety with panic attacks”, ethanol intake and being an occasional cigar smoker as well as the subpleural nodule previously mentioned.
The hospital notes disclose that on 15 December 2015, being a date upon which the father was corresponding in earnest with the case coordinator (see paragraphs 25–28 above), he presented at the HA Hospital. The nursing notes record that the patient was alert and orientated, without pain. That he had “nil signs of respiratory distress, ongoing productive cough”. It was recorded that he was eating and drinking well, with no issues in relation to bowel or bladder.
A nursing note taken some two hours later, at approximately 7 pm on 15 December 2015, records
more extensive cocaine and ETOH use, higher than previously thought.
When reading the hospital files, I construe a reference to ethanol or “ETOH” as a reference to ethanol which is a reference to alcohol.
The notes of the hospital record that on 14 December 2015 the father was admitted for investigation of a chronic cough. It is recorded that he had a respiratory tract infection five months ago, which was treated with antibiotics. It records “irregular cocaine use. Last used one week ago and previously last used one year ago.” And that he “works in mining and investment, largely a desk job with some overseas travel and lives alone”.
There was a further presentation by the father to the HA Hospital on 29 December 2015, at which time it was recorded that the father had not been in contact with sick people or pets, and there is a notation of irregular cocaine use, again, “last used a week ago and previously used a year ago”.
The file does not support the assertions by the father that he had been placed in “isolation” in the HA Hospital and the results of scans were received “evidencing significant lung nodule/scar tissue/cancer”.
The father was next admitted to the HA Hospital on 6 January 2016. This is the period referred to in some detail by the father in his affidavit in support of the current application for an adjournment. It is to be recalled that the father said that he suffered a serious head strike. My reading of his affidavit indicates that he was attributing other injuries and earlier falls to a lack of ability to breathe. In particular, he deposes at [7] as follows:
I understand that I was hospitalised in the intensive care unit from 6 January 2016 at the [HA Hospital] (I was in a medically induced coma so I need, for the purposes of this affidavit, to rely upon the advice of medical staff at the [HA Hospital] and others for this point). This is the first time in my life I have had to attend an intensive care unit. I understand — I suffered a serious head strike. After admission, a number of injuries were discovered which were suggested that I had collapsed more than once — most likely due to an inability to breathe.
The notes from the HA Hospital reveal much greater detail than that provided by the father and to an extent that the father’s omissions tend to mislead. The hospital files indicate that on 6 January 2016 the father fell from a standing height. He said that he was out drinking, and fell and hit his head, and called “000” himself. He sustained a large laceration to the forehead, with a large volume of blood on the ground. His “partner” is noted as having attended after the ambulance arrived and said that the father was not taking any regular medication. The attendance of the ambulance was at something like 3 am on 6 January 2016. The hospital notes record the father’s blood alcohol reading at 0.34 per cent.
The ambulance notes indicate that on 6 January 2016 the father was collected by an ambulance from YK Street, R Suburb, which is the address of Ms PS and her mother. At the scene, the police considered that the father was a biological/infectious hazard, because he was intoxicated and “flicking blood around”.
The hospital notes taken some 14 hours later, but still on the day of admission, indicate that there was no change in the father’s bronchitis. The nursing notes indicate that the father was sedated for the purpose of being intubated, and had a “high sedation tolerance”. The father was discharged from the intensive care unit on 6 January 2016 (the same day that he was admitted) and admitted to a ward. There is no indication of an induced coma.
The next day, there are extensive social worker notes, reflecting the initial contact between the social worker and the father. It appears that the father’s partner, Ms EJ, was involved in the social worker interview. It is recorded that “she expressed concern that the patient was drinking ETOH excessively and needed to see D&A counsellor to address this”. Ms EJ reported patient was intoxicated, and fell to cause his injuries leading to this submission. She also noted that he had been drinking excessively for some time, and on his previous presentations to the HA Hospital in 2015, medical staff had raised this as a concern with the patient.
Ms EJ reported to the hospital social worker that the father generally “minimised” his ETOH (alcohol) abuse and has previously consistently declined assistance/professional help on this matter. The social worker provided Ms EJ with support. The social worker recorded that support would be offered to the father in relation to alcohol abuse, and the advisability of recognising his alcohol abuse and willingness to accept help in that regard.
The father was also interviewed and confirmed that Ms EJ was his girlfriend and his mother was his closest relative. It is recorded that
patient reports reasonable recall of climbing the fence at ex-partner’s garage (she was away at the time) and falling to the ground “head first”, then calling triple zero for assistance.
Patient reports he was intoxicated at the time. Reports he drinks alcohol five out of seven days. Usually a bottle of wine a day. Patient acknowledges with prompting that he drinks to excess, and this impacts on his health. However, he has seen a private physician in the past in relation to alcohol abuse, and feels he can “manage it by myself.” Denies need to seek further professional help or support on this issue and is more concerned by his chronic cough.
It appears from the hospital notes that the father was in the intensive care unit for less than one day, and in hospital for one further day. It is recorded that the PS family were not permitted to come in contact with him.

In this adjournment application the father bears the onus of proving, on a balance of probabilities, that he is unable to attend Court because, as he says, of his medical condition.
There is nothing on the documents produced on subpoena that indicate that the father is unfit to attend court today. The annexures to the father’s affidavit in support of this application include a certificate provided by the hospital which records that the father would be “unfit to work” until 22 January 2015, which was last Friday. There is a pro forma certificate, issued by the CO medical, that says that the father is unable to work until 30 January 2016. But it is not specific.
The need for specific reasons in any medical certificate was not only underlined by the independent children’s lawyer, in correspondence between herself and the father, referred to above, but also in correspondence between Registrar Field to the father on 20 January 2016. There the Registrar specifically said:
An application … must be made to the Court and supported by any affidavit setting out the reasons for the adjournment together with all relevant medical evidence. Any affidavit from a medical practitioner should set out the history of the medical treatment provided to [Mr Nixon] to date, his current diagnosis and prognosis together with an opinion as to [Mr Nixon’s] capacity to participate in the hearing. The medical practitioner may also be required to be available for hearing for cross-examination purposes by the other parties.
Then on 22 January 2016 the Registrar wrote again to the father saying:
I confirm this matter remains listed before the Honourable Justice Bennett on Monday, 25 January 2016 at 10 am. Noting that the other parties have not provided their consent to adjourn the hearing, you should attend or be represented before her Honour on Monday to seek leave to file and make the application for an adjournment. If you do not attend on Monday, 25 January 2016 at 10 am either in person or by legal representative, the Court may make orders sought by the other parties in your absence.
The father places considerable emphasis on the fact that he has recently been admitted to an intensive care unit for a blow to the head sustained whilst unable to breathe. However, the hospital notes which I have set out above reveal that the father was in intensive care for less than 24 hours on 6 January 2016 and that he sustained a laceration to his head when he fell headfirst and drunk trying to climb the garage wall to Ms PS’ home whilst she was absent at about 3 am. He called an ambulance himself and was found by police sitting on the ground “flicking blood”. The father’s version of events is at best vague or incomplete but, more accurately, it is misleading by omission.
The father’s evidence, sworn 22 January 2016, is that his first and only admission to intensive care was on 6 January 2016. The father says that he will notify the Court when he has recovered and able to attend Court. In his application he seeks an adjournment until after 1 April. In his affidavit material he says he will not be well for some months and that he can’t work for approximately a year. On this basis I concluded that there is no short period of time in which the father may perceive himself to be recovered. It is problematic that the father relies on his own opinion of when he can attend court and does not have, nor adduce evidence from an expert medical practitioner or other appropriately qualified person as to his ability to attend court.
I have already stated the lengths to which the independent children’s lawyer and Registrar Field have gone to explain to the father that it is not sufficient that he rely on a certificate that is merely a box with a tick and a signature with some dates inserted. That is, absent consent, there needs to be a comprehensive statement by an appropriately qualified person, who is available for cross-examination, as to the father’s inability to attend Court as a pre-condition to any adjournment being granted on medical grounds.
The final point, from the father’s last communication to the Court, is that he contends that the children should be returned to Melbourne prior to the start of the school year. For the school which the children attended prior to them going to live in Canberra I understand the first day would be next Monday. They are, at the moment, in non-fee paying school education which, in Victoria, starts on Wednesday.
The father’s last communication to the Court makes clear, that he puts in issue the children’s views. I accept that the children’s views are relevant and that there ought to be evidence about their current views. The children can be seen by Ms KE, the family consultant with whom they are familiar, on Thursday afternoon. The mother will not be seen. The father will not be seen, but the children will be seen by Ms KE either face-to-face or if that is not possible by telephone.
I propose that Ms KE report briefly to the Court orally after her interview with the children. I am satisfied that the best interests of the children requires that the social science evidence about them be up-to-date even if it merely states that the girls’ views are the same and the family consultant adheres to her recommendations. I have considered the father’s objection to Ms KE seeing the children again but give the objection little weight as a result of having observed the father cross examine Ms KE in October 2014 when he alleged bias on her part but failed to adduce evidence which supported bias or to sheet home any other criticism of Ms KE.
The father’s coherent and speedy response to the Court this afternoon indicates that he is capable of addressing matters at short notice when he perceives it is in his interests to do so.
Any application for an adjournment invariably is a balancing of interests. In coming to my conclusion, I balance the interests of the children and the mother against those of the father. It is preferable that litigants (like the father) not only have an opportunity to be heard by the Court and put their case but feel as though they have had the opportunity to be heard by the Court and put their case. The father has been given adequate opportunity. My impression is that he will never be satisfied that he has had an appropriate opportunity to be heard by the Court until or unless he is confident that the Court will make a decision which coincides with what he seeks.
As with any parenting order, I consider the interests of the children to be the paramount consideration. As I commenced with this decision, I am mindful that an adjournment of the proceedings may impact adversely on the children. However, I would accede to the father’s application, if I thought the greater good was a more thorough examination of the issues at hand and a safer result being delivered for the children. However, I am not so satisfied in this case.
There are many holes in the father’s application for an adjournment. The independent children’s lawyer and the mother have taken me, I am satisfied, to most of them. I am not at all confident that the father’s application is genuinely based.
I must be satisfied on a balance of probability of issues in dispute. The evidence before the Court by the father fails to satisfy me, that he is unable to attend Court today.
Having regard to the lack of expert evidence that the father is unfit to attend Court and the detriment to the children of further delay, I agree with the position adopted by the independent children’s lawyer and the mother that the father’s application for an adjournment ought not be granted.
Finally, the resumption of this hearing is for the purpose of the Court receiving further evidence that the independent children’s lawyer was given leave to adduce. However, the parties’ final addresses are to be by way of written submission so today is not the final word. The father cannot adduce evidence in rebuttal in his final submission but he can address what weight I should give the further evidence adduced. Better yet, he can attend Court next Wednesday and participate in the hearing and challenge the further evidence, if he can.
To the extent that the father says that he will appeal any decision to proceed with the hearing, the father is obviously at liberty to do that and for that reason I will say that the order is prepared and sent out to him today. Unfortunately, the Reasons for Decision will have to be transcribed and will not be available probably until Wednesday morning at the earliest. In all of the circumstances, though, the father will know that that matter will resume on Wednesday and one hopes that he will attend Court to participate on that day. The father’s application for an adjournment is dismissed.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 25 January 2016.

Legal Associate:

Date: 28 January 2016