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…

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: [2016] FamCA 23
Decision Date: 25 January 2016

CaseChat Overview and Summary

In the matter of *Nixon and Nixon*, Justice Bennett of the Family Court of Australia considered an application by the husband to vacate and reschedule a hearing. The wife and the independent children's lawyer opposed the adjournment, submitting that the husband was attempting to delay the finalisation of the case and lacked sufficient medical evidence to support his assertions. The Court was informed that the husband's ability to attend Court due to illness was in question.

The primary legal issue before the Court was whether to grant the husband's application for an adjournment of the final hearing. This involved assessing the husband's purported medical condition, the sufficiency of the evidence presented to support his inability to attend, and the potential prejudice to the finalisation of the proceedings. The Court also had to consider the best interests of the children involved in the proceedings.

Justice Bennett granted the husband leave to file his application for adjournment and for it to be heard on the day. However, after considering the submissions and the husband's failure to attend or adequately communicate his availability, the Court dismissed the husband's application for adjournment. The Court reasoned that the husband had not provided sufficient evidence to justify the adjournment and that the proceedings should proceed to final determination. The Court then directed that the proceedings resume on Wednesday, 27 January 2016, and requested that an independent children's lawyer interview the children and provide an oral report to the Court.

Orders

Orders of the court

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”.

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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