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 of 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:

1. 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.

2. 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

1. 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.

2. 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.

3. 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.

4. Mr Nixon says that the report writer, Ms KE, appears to be allied with the wife.  He criticises her for taking a lot of material of an historical nature and rehashing it (his words), but then coming to a conclusion radically different to that of Mr VP, a consultant psychologist who was previously an assessor in these proceedings.  Mr Nixon contends that Ms KE has expressed opinions “not open to her”, but again Mr Nixon fails or neglects to provide any instance.

5. Interestingly, Mr Nixon characterises this matter as not being a “difficult matter to resolve”.  That may be the case, if we could ever start.  It is now the beginning of the afternoon sitting on the first day and it has taken us since 10 o’clock this morning to ascertain that Mr Nixon only relies on one affidavit of his own. 

6. It is interesting that he also regards the proceedings as “fundamentally a commercial dispute”.  He says “parenting matters are intertwined with financial matters” and words to the effect that the matter could have resolved had the wife made full and frank disclosure of financial matters some years ago.

7. Inadmissible material can be struck out of proceedings at any stage.  It does not need to be at the beginning of a hearing.  It can be at the conclusion of a hearing, but, based on Mr Nixon’ application, I will not strike out Ms KE’s report.  He has failed to substantiate any of his broad criticisms.  It may be, however, that, in his extensive cross-examination of Ms KE, he is able to substantiate or demonstrate some of what he now says, and, if that is the case, I may look differently upon her report as a matter of evidence, subsequently, or I may even order an alternative report.  But, at the moment, his application is misconceived and cannot succeed.  I will dismiss Mr Nixon’ oral application.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 20 January 2014.

Associate: 

Date:  3 February 2014