Nixon and Nixon (No 2)

[2014] FamCA 1179

FAMILY COURT OF AUSTRALIA

NIXON & NIXON (NO 2) [2014] FamCA 1179

FAMILY LAW – Application by independent children’s lawyer to re-open the parenting case – temporary injunctive relief – best interests of children

APPLICANT: Ms Nixon

RESPONDENT: Mr Nixon

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Harris

FILE NUMBER: MLC 2061 of 2009

DATE DELIVERED: 2 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 2 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nixon in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:	No Appearance – arrived at 10.05 am after orders pronounced and reasons delivered.
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 each party to re-open his/her case and, subject to further order of the Court, the purpose for which further evidence can be led and witnesses cross-examined is confined to matters relevant to the events and developments described by the independent children’s lawyer in her affidavit affirmed on 10 November 2014.

2.I release for inspection and photocopying the documents produced pursuant to subpoena by Victoria Police and by Hotel 1, Suburb YS.

3.The mother and the independent children’s lawyer be and are hereby at liberty to cause further subpoena to issue requiring the giving of oral evidence and/or the production of documents.

4.I reserve liberty to the father to apply for leave to issue subpoena and, in the event that he proposes to do so, he make application in an appropriate form supported by affidavit material to which is annexed the proposed subpoena and from which it should be apparent why the evidence sought is relevant.

5.I grant leave to the mother to file her affidavit sworn on 28 November 2014 AND IT IS DIRECTED that she serve such affidavit on the father as soon as possible by sending same to his email address.

6.I grant leave to the mother to make an oral application for orders in terms of paragraph 2 (d) of her affidavit sworn on 28 November 2014.

7.I permit the mother to proceed on an ex-parte basis with her oral application vis-à-vis the father, I being otherwise satisfied that the independent children’s lawyer has been served with the affidavit and that she does not object to orders being made in those terms.

8.Until further order, the father be and is hereby restrained from:-

a)communicating with the employer of the wife and any of her colleagues at that place of employment; and

b)in any way contacting any member of staff at the schools where any of the children N born … 2000, S born … 2001 and I born … 2005 are enrolled NOTING THAT pursuant to paragraph 7 of the Order made on 10 October 2014 the mother was entitled to enrol the child I at SH School in Suburb CE, Australian Capital Territory and the wife advises that enrolment has now been finalised.

9.I reserve liberty to the father to apply to vary or set aside paragraph 8 of this Order or as he may be advised.

IT IS DIRECTED THAT:

10.My Associate notify the parties in due course of the date upon which the Court will reconvene for the purpose of taking further evidence and permitting cross-examination. 

11.The exchange of emails between Mr Nixon and the independent children’s lawyer dated 1 December 2014 and 2 December 2014 be marked Exhibit “ICL 21” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

12.The Application in a Case filed by the Independent Children’s Lawyer on 10 November 2014 be otherwise dismissed.

13.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and published to the parties.

14.I expedite the preparation of my reasons for decision so that the reasons are available within 7 days.

AND IT IS FURTHER NOTED BY THE COURT that the father arrived at Court at 10.05 am and confirmed that he received the mother’s affidavit sworn 28 November 2014 on the evening of 1 December 2014. The father said he would appeal. It was suggested to the father that he could review the evidence, this Order and my reasons for decision prior to lodging a Notice of Appeal in relation to this Order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nixon & Nixon (No 2) 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 Nicolls

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me on the application of Ms Smith who is the independent children’s lawyer in these parenting proceedings.

2. It is her application in a case filed on 10 November 2014 and expressed to be returnable on 27 November 2014 at 10 am. 

3. There is also a letter on the court file to which I have had reference.  That is a letter sent by my associate dated 19 November 2014 and it is addressed to the wife, to Victoria Legal Aid which is the address of the independent children’s lawyer and to the husband at a certain email address.  The letter advises that due to judicial unavailability on 27 November 2014 the listing of the case would now be on Tuesday 2 December 2014 at 9 am and that is, indeed, today.

4. At 9 am there was no appearance by or on behalf of Mr Nixon.  I came to court shortly before 10 past 9.  There is an appearance on behalf of the independent children’s lawyer and Ms Nixon appears by telephone.  Both of them received the letter and were aware of the hearing today.  I had Mr Nixon called at the door of the court but there was no response to the call. 

5. The independent children’s lawyer informs me that she anticipated that the husband would attend court today.  Ms Harris has handed up to the court an email which appears to be from the husband and which I note is the same email address as that to which my associate sent the letter to which I have earlier referred.  It is a long email but it is apparent from the email that the husband understood that the matters were in court today.  He had intended, he says, to seek an adjournment until 13 January 2015, that there is no doubt that he refers to “in the court tomorrow morning”. 

6. I am satisfied that the husband is aware of today’s hearing date and has been accorded procedural fairness in respect of the application of the independent children’s lawyer.  I will mark the email which I have been handed as Exhibit “ICL 21” and direct that it remain on the court file.  The letter to which I have referred will remain on the court file in the correspondence folder. 

7. The application of the independent children’s lawyer is essentially to re-open the defended proceedings to permit the gathering of further evidence in the consideration by the court of further evidence and the possibility of cross-examination on that evidence. 

8. The independent children’s lawyer, Ms Smith, has affirmed an affidavit on 10 November 2014.  In that affidavit she refers to having been contacted by the mother and then having made contact with Mr Crawford who said that the father had been staying at the Hotel 1 for about nine months and then stayed at his home but had been required to leave his home because Mr Crawford believed that the husband was affected by illicit drugs and that the matter had been referred to the police. 

9. This matter has occupied very many days in court and the state of the matter was that we had concluded all of the evidence and on 10 October 2014 I made orders providing for all parties to make their final submissions in writing.  There was a timetable for the submissions and it’s the independent children’s lawyer being required to file and serve written submissions by 13 November, the mother to do so by 27 November and the husband to file his submissions by 11 December. 

10. The independent children’s lawyer has not filed any written submissions in compliance with the order.  It is apparent from the date of swearing her affidavit that these further matters of new evidence were exercising her mind at the time that she would have been required to do so.  The parties are, of course, entitled to some finality in litigation and it is a significant step to re-open a case even where final submissions have yet to be made.  Consideration must, in my view, be given to the best interests of the children as the paramount consideration.  The evidence which the wife refers to and to which the independent children’s lawyer relies upon is at the moment untested, it’s hearsay.  This is a less adversarial trial but I am satisfied that, if what is said is accurate, then these are matters that have a real bearing on the case.  In making these comments I don’t pre-judge it, I am merely trying to assess whether or not there is some necessity in re-opening the case. 

11. I will refer to these previous matters not by any way of pre-judging the ultimate outcome but to indicate that I have given the matter consideration and don’t re-open the case lightly. 

12. During the proceedings the husband repeatedly denied illicit drug use now.  He also denied abusing alcohol.  Ms KE, the family consultant, when giving evidence said to the husband on a number of occasions that she was concerned that his demeanour in court represented a deterioration in his presentation at the family report interviews.  She queried at the time whether the husband had been taking illicit drugs and he in fact denied that he was.  The evidence which the independent children’s lawyer now seeks to adduce would appear to indicate that there may be some illicit drug use or at least possession by the husband of some illicit drugs inasmuch as a sachet of white powder was recovered by the police from where the husband was residing. 

13. There is another matter.  It is that the husband has been staying at the Hotel 1 on an extended basis, it would appear, based on the untested hearsay evidence.  He has also managed to settle up Federal Court litigation about his own bankruptcy.  These things give some indication that the husband might have access to moneys to which he has not admitted in these proceedings. 

14. I am mindful of the fact that not only does the husband say he is impecunious but he has made much of saying that he has no ability to accommodate himself whatsoever, that he relies upon the charity and goodwill of others to provide him with accommodation and with food.  When the family report was prepared by Ms KE and the interviews were done in Canberra he didn’t even have enough money to pay for the bus fare to Canberra.  So the evidence would appear to be significant in that respect. 

15. I stress, however, that the evidence is not yet in admissible form and that it is hearsay at the moment and it is most certainly untested.  It is for that reason that the independent children’s lawyer wants an opportunity to put the evidence before the court in an appropriate form to permit cross-examination on it and also to cause various subpoenas to issue or to inspect documents on subpoenas which have already been issued and served. 

16. I am satisfied that it is in the best interests of the children that the litigation be re-opened and each party will be entitled to adduce further evidence.  It means that, unfortunately, this matter will not be brought to any conclusion by the end of this academic year for the children but it is more important for the interests that a sound decision be delivered on a presentation of evidence which is comprehensive. 

    ORDERS DELIVERED

17. The next matter concerns urgent interim relief sought by the wife.  With my leave, she has filed an affidavit sworn on 28 November 2014.  She seeks today to be able to make an oral application to proceed with an order restraining the father from communicating with her employers and the children’s schools, and she seeks to proceed with that application ex parte the husband.  Not only has he not been served with any application in writing to the effect of the order sought by the wife, but he has not been served with her affidavit either.  The independent children’s lawyer does not oppose the order sought by the wife, and in fact supports the order.

18. I have read the wife’s affidavit from paragraph 17 until its conclusion.  I am satisfied on the evidence set out therein that the father has contacted the mother’s employer in a way which causes the mother embarrassment which did not appear to be necessary.  The mother has referred today to her place of employment as being not only the source of her livelihood, and the only financial source of her livelihood, but also a sanctuary for her, and she seeks to maintain her privacy.  She seeks to enjoin the father from contacting her at place of employment and, more significantly, contacting those who employ her and those with whom she works. The mother says that the father’s actions cause her emotional stress.

19. I am mindful that the mother is the sole carer of the girls at the moment.  It is therefore not in their interests to have their primary carer stressed or upset.  And she is the sole source of financial support for the children, so I do not wish to put her employment at any risk at all.  It is not that it appears that she would be discharged from her employment, but I don’t want to put her in a position where she would feel uncomfortable or self-conscious in going to work.  That would be harmful for the children albeit indirectly.

    ORDERS DELIVERED

20. The next matter is the school.  The mother has deposed to the father having previously disrupted arrangements for the children to attend schools when they arrived in Canberra.  She does not want a repeat of that.  She has annexed to her affidavit an email from the father referring to the children being taken from schools without his authority and, if that’s the case, he clearly opposes it.  The enrolment for I at SH School, as provided for in the last orders made by me, has now been completed, but the mother does not want the father to make any trouble at that school. He should not do so.

    ORDERS DELIVERED

21. These reasons for judgment - - -

    RECORDED  :  NOT TRANSCRIBED

22. - - - are now concluded, but I note that in reaching the conclusion Mr Nixon has come in to court at 10.05 am. 

23. Mr Nixon says that he will appeal this decision which, of course, he is entitled to do.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 2 December 2014.

Associate: 

Date:  23 December 2014.