NIXON & NIXON - [2014] FamCA 648

FAMILY COURT OF AUSTRALIA

NIXON & NIXON

[2014] FamCA 648

FAMILY LAW – Father’s oral application to strike out family report (s62G) dismissed

APPLICANT:

Ms Nixon

RESPONDENT:

Mr Nixon

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Ms Smith

FILE NUMBER:

MLC

2061

2009

DATE DELIVERED:

20 January 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

Monday, 20 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

In Person

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:

Leave is granted to the husband to make an oral application to exclude from evidence the family report of Ms KE, family consultant, which is dated 22 November 2013.
The oral application be and is hereby dismissed.

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

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Early in this hearing, Mr Nixon makes an oral application with leave to exclude from evidence the family report of Ms KE, a family consultant, which is dated 22 November 2013 and which was prepared pursuant to an order of mine under Section 62G of the Family Law Act. This is not the first time that Mr Nixon has appeared in court following the release of this report. The matter was specifically listed before me in December for consideration of the readiness of it for trial and timed to follow the release of the report. He did not make this application at that time.
Mr Nixon says that the report is inadmissible, but he provides no basis for his contention of inadmissibility. He says that the report does not “contain the voice of the children”. Whilst I accept that might be his view, I am far from satisfied, having read the report, that is the case. However, the purpose of cross-examination, which hopefully we will come to within the next few days, would be to demonstrate a complaint such as he now makes.
Mr Nixon says that the report is insidious, mischievous, histrionic, and unnecessarily inflammatory (his words). He does not point to one instance to demonstrate those bald allegations. If I was subsequently to find that the report could fairly be characterised by any of those descriptions, I may well accord it less weight as a matter of evidence. However, Mr Nixon has not referred to any instance and it is a matter which clearly must await his cross-examination of the witness, which will be his opportunity to demonstrate that all of his criticisms are soundly based.
Mr Nixon says that the report writer, Ms KE, appears to be allied with the wife.…

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 NIXON & NIXON

Details

AGLC: NIXON & NIXON [2014] FamCA 648
Case: [2014] FamCA 648
Decision Date: 20 January 2014

CaseChat Overview and Summary

In the matter of *Nixon & Nixon*, heard before Bennett J, the husband sought leave to make an oral application to exclude from evidence a family report prepared by Ms KE, a family consultant, dated 22 November 2013. The wife opposed this application.

The central legal issue before the court was whether the husband should be granted leave to make an oral application to exclude the family report from evidence. This required the court to consider the circumstances under which such an application could be made and the merits of excluding the report.

Bennett J granted the husband leave to make the oral application. However, after hearing the application, the court dismissed it. This indicates that while the procedural step of allowing the application was permitted, the substantive grounds for excluding the report were not found to be persuasive by the court.

Orders

Orders of the court

IT IS ORDERED THAT:

Leave is granted to the husband to make an oral application to exclude from evidence the family report of Ms KE, family consultant, which is dated 22 November 2013.

The oral application be and is hereby dismissed.

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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