H and S

[2001] FMCAfam 143

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & S [2001] FMCA fam 143

FAMILY LAW – Leave to reopen and adduce fresh evidence.

Gelley & Gelley (No.1) (1992) FLC 92-290

Applicant: S M H

Respondent: M S

File No:   ZH2308 of 2001

Delivered on: 20 September 2001

Delivered at: Devonport

Hearing Date: 14 September 2001

Judgment of: Roberts FM

REPRESENTATION

Counsel for the Applicant: Mr. McVeity

Solicitors for the Applicant: Murdoch Clarke

Counsel for the Respondent: Mr. McGuire

Solicitors for the Respondent: Temple-Smith Barclay

ORDERS

1. That the Application by the Mother for leave to re-open her case and adduce fresh evidence be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DEVONPORT

ZH2308 of 2001

S M H

Applicant

And

M S

Respondent

REASONS FOR JUDGMENT

Background

1. Between 30 July and 2 August 2001 I heard competing residence applications between the parties to this matter.  They were both seeking residence orders in relation to their child, H, who was born on 8 May 1997. I am still to give Judgment in that.

2. On 7 September 2001 the Mother (who is the respondent in relation to the principal proceedings) filed an Application seeking to re-open her case by adducing fresh evidence from herself and a number of Police Officers. In her Application, she actually refers to the matters to be dealt with in the evidence of herself and the Police Officers. They are:

   “I)The violent and abusive episode by the Respondent Father, M S, on Father’s Day, 2 September 2001;

   ii)The drug use of the Respondent Father;

   iii)The failure by the Respondent Father to return the child Holly to the Applicant Mother after a contact visit;

   iv)The effect of the domestic abuse on the Applicant Mother.”

3. In support of her Application, she filed an affidavit from herself and affidavits of three Police Officers. 

4. The Mother’s own affidavit comprises twelve pages and fifty three paragraphs, all relating to events which took place between 30 August 2001 and 3 September 2001.  It is to some extent inconsistent with the affidavit of one of the Police Officers. However, that is not material to this decision.

5. It appears that the parties came to an agreement about contact over that particular Father’s Day weekend that was not strictly in accordance with the interim orders. Further, it appears that the Father did not return the child to the Mother at the agreed time because he had a certificate, purporting to be from a doctor, that indicated that the child should not travel. In this particular case, the Mother lives in H and the Father lives in D.

The law

1. The law appears to be quite clear in relation to re-opening a case and adducing fresh evidence.  In this regard, the late Justice Treyvaud gave a very good summary of the law in Gelley & Gelley (No 1) (1992) FLC 92-290, commencing at page 79,146. From a reading of that summary of the law and from reading other cases it is clear that in order to re-open, the Applicant must convince me of the following:

   a)That the fresh evidence was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence; and

   b)That, if believed, that evidence would most probably affect the result of the trial.

2. Clearly, the Mother has no difficulty satisfying the first part of the test because the material relates to incidents that occurred after the end of the trial. 

3. I therefore need to assess whether the evidence of the incidents, if believed, would affect the outcome. 

4. It is quite clear that the Court has a wide discretion in relation to permission to re-open and that the discretion should be exercised cautiously.

Findings

1. The Mother alleges that the Father’s behaviour on Father’s Day was “violent and abusive”.  In fact, there is no evidence of any violent behaviour in any of the affidavits. Certainly, abuse is alleged, but that is not new.  During the trial, the Mother made many references to abusive behaviour on the part of the Father.

2. In her affidavit material, the Mother makes sweeping statements such as “I believe M was under the influence of drugs on this occasion”, but she does not provide any more detail than that. Further, one of her Police witnesses, who spoke to the Father on an occasion when the Mother was not present made an inconsistent statement in his affidavit material  that he observed that the Father was “affected by some sort of substance”, while in the same paragraph saying that “his breath however smelt clean, he did not smell as though he had been drinking or consuming any form of prohibited substance”.  It seems clear that the Police Officer was not suspicious enough to take the matter further.

3. In relation to the failure by the Father to return the child, much is made in the affidavits of two Police witnesses and the Mother of their suspicions in relation to the doctor’s certificate from Dr. S.  Collectively, their concerns are as follows:

   a)The certificate is not on headed paper;

   b)It is undated;

   c)It is not grammatical;

   d)The spelling is faulty;

   e)The doctor used the American “MD” after his name;

   f)The certificate stated the child was unfit for travel without saying what was wrong with her.

4. All of these appear to suggest that the mother and two of her witnesses are accusing the Father of typing up the medical certificate himself.  Such behaviour would clearly constitute a number of offences.  However, the two Police Officers involved did not see fit to take that any further.

5. Indeed, I find it amazing that when this matter came before me twelve days after the medical certificate was first produced, neither the Mother nor her Police witnesses appear to have bothered to check whether the medical certificate was valid.

6. Counsel for the Father drew my attention to the fact that the Mother had earlier in the proceedings produced a medical certificate from another doctor in the same practice that was not on headed paper and that in her affidavit material the Mother concedes that Dr. S was the child’s doctor.

7. I am left with the uncomfortable feeling that the Mother may well have established the validity of the medical certificate but failed to tell the Court when the matter came on for hearing.  However, that has not influenced my decision.

8. In any event, I do not find the medical certificate to be grammatically offensive. There is only one spelling error, and I am not concerned whether “MD” is an Americanism or not.  These are all trivial matters.

9. As mentioned above, the Mother sought to introduce fresh evidence in relation to the effect of domestic abuse upon her.  To her affidavit she attaches an entirely self-serving document from Support, Help & Empowerment Inc.  As the writer of that document bases her conclusions entirely upon information received from the Mother, the document adds nothing to the evidence that I have already received. It is quite clear that the Mother bases much of her case upon allegations of domestic abuse and the effect upon her.  I will deal with those allegations in my Judgment in relation to the principle applications.

10. I accept the submission from counsel for the Father that the only new matter in the affidavit material is the alleged bogus medical certificate. I have given my thoughts in relation to that above.

11. In the circumstances, I can see no reason why the Mother should be permitted to re-open her case and I dismiss her application. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Roberts FM

Associate:

Date:  20 September 2001