Carter and Nussbaum and Ors (No 2)

[2013] FamCA 1014

FAMILY COURT OF AUSTRALIA

CARTER & NUSSBAUM AND ORS (NO. 2) [2013] FamCA 1014

FAMILY LAW – PRACTICE AND PROCEDURE – Further Evidence – Whether leave should be granted to mother to adduce further evidence – Leave refused.

Family Law Act 1975 (Cth)

APPLICANT: Ms Carter

FIRST RESPONDENT:	Ms Nussbaum
SECOND RESPONDENT:	Mr Nussbaum Snr

THIRD RESPONDENT	Mr Nussbaum
INDEPENDENT CHILDREN’S LAWYER:	Mr Finn

FILE NUMBER: MLC 6001 of 2010

DATE DELIVERED: 7 November 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Benjamin J

HEARING DATE: 7 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	In Person
COUNSEL FOR THE 1ST RESPONDENT:	Mr Combes

SOLICITOR FOR 1STRESPONDENT:	Perisic Lawyers
COUNSEL FOR 2ND RESPONDENT:	Mr Combes

SOLICITOR FOR 2ND RESPONDENT:	Perisic Lawyers
COUNSEL FOR 3RD RESPONDENT:	Mr Dunlop

SOLICITOR FOR 3^RD RESPONDENT Whyte Just & Moore

INDEPENDENT CHILDREN’S LAWYER:	Mr Finn
INDEPENDENT CHILDREN’S LAWYER:	McKean Park Lawyers

ORDERS

1. The application by the mother to rely upon a letter provided by Ms V from the LL Family Services is dismissed.

   IT IS DIRECTED

2. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Nussbaum and Ors 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 6001 of 2010

Ms Carter

Applicant

And

Ms Nussbaum

First Respondent

And

Mr Nussbaum Snr

Second Respondent

And

Mr Nussbaum

Third Respondent

And

Independent Childrens Lawyer

REASONS FOR JUDGMENT

1. There is an application before me by the mother to rely upon a letter provided by Ms V from the LL Family Services.  The letter was incorrectly dated 20 November 2013, but it is a fact asserted by the mother that the letter was only obtained in the last 24 hours or so. 

2. The mother made application for leave to rely upon that document today, but is not sure whether the author of the letter, Ms V, a team leader at the Service, is or can be available for cross-examination. 

3. The letter relates to services provided to the mother by a case worker at the :: Family Services between July and November 2011 and May and August 2012.  The letter is not from the case worker herself, but is, it seems, the view of a supervisor who says that she supervised the case worker during the second episode, and had some contact with the family, but it does not say whether this was in relation to the first or second one. 

4. The letter goes on to make broad statements about the mother in the absence of any material upon which this is based.  It is clear that the service was provided to the mother, and it is likely that it was based upon her assessment of what was happening. 

5. The mother tells me that she sought to issue a subpoena about a month and a half ago, but that permission apparently wasn't allowed in relation to the subpoena, although I have no recollection of it being raised with me until today, as far as I can recall and as far as I have been told. 

6. Some aspects of the letter seem to be in the nature of a character reference, but without the basis upon which that “reference” is based.  The other matters which are set out on the second page such as the mother’s protective nature in relation to the children, the mother’s parenting skills, the mother’s involvement in seeking medical help, are the matters which are the subject of evidence before this trial in any event. 

7. I am conscious that the mother is unrepresented, and I am conscious that it is difficult to prepare a case in the absence of representation.  However, I am concerned that this was not raised with me earlier, and I am concerned that it has been tendered essentially after the mother’s case has been completed, and in a way where it seems to me any probative value of the material set out in the letter is overwhelmed by the prejudice that would impose upon others if it were admitted. 

8. The issues raised in the letter are the very issues which have been the subject of significant expert evidence in this trial so far, and I am not satisfied in the circumstances as they presently stand that that letter ought to be admitted, and I do not grant leave for the mother to rely upon that letter, and the application for leave is refused.  I will return the letter to the mother. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 7 November 2013.

Associate: 

Date:  7 November 2013