Pearce and Cole (No 3)

[2009] FamCA 1186

FAMILY COURT OF AUSTRALIA

PEARCE & COLE (NO. 3) [2009] FamCA 1186

FAMILY LAW – CONTRAVENTION – Case management

Family Law Act 1975 (Cth)

APPLICANT: Mr Pearce

RESPONDENT: Ms Cole

FILE NUMBER: MLC 13158 of 2007

DATE DELIVERED: 20 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tesoriero

SOLICITOR FOR THE APPLICANT: Stella Stuthridge & Associates

THE RESPONDENT: No appearance

Orders

1. That the father’s contravention application be adjourned to 7 December 2009 at 10.00am in the Judicial Duty List.

2. That the father’s costs of this day are fixed in the sum of $200 and reserved and the payment thereof is reserved to the hearing on 7 December 2009.

3. That the mother attend personally on 7 December 2009 failing which the father has leave to apply for the issue of a warrant for her arrest.

4. That the reasons be transcribed.

5. That this order and in due course of copy of the reasons for judgment this day be served personally by the practitioners for the father upon the mother.

IT IS NOTED that publication of this judgment under the pseudonym Pearce & Cole is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13158 of 2007

MR PEARCE

Applicant

And

MS COLE

Respondent

REASONS FOR JUDGMENT

1. This is an application for contravention filed by the father on 26 October 2009 arising out of orders made by Dessau J as late as only September this year.  There is a transcript of what occurred leading up to the orders in September which indicates that although the mother was not represented by lawyers she consented to the orders that were made that day.  In fact, there is a very careful set of questions put by her Honour which would suggest to me that the mother full well knew what she was doing and why she was doing it.

2. The application appears to have been served, although there are no service documents on the file, because at 3.24 yesterday afternoon, a fax was received by the Court from the mother endorsed with the address shown in the documents.  I read in to these reasons, the words of her letter.  It says:

   This matter is listed for the hearing of application contravention in Melbourne on 20 November 2009.  I am the respondent in that application.  I will not be able to attend because of illness.  I attach medical certificate.

   Attached to that letter is a medical certificate, which is also worth reading in to the reasons.  It reads:

   To Whom It May Concern.  This is to certify that [the mother] consulted me today.  She was affected by a medical condition and is unable to attend work today.  19 November 2009-20 November 2009.

   That certificate is signed by a doctor in F.  Often at times parties become ill and proceedings cannot go ahead but if that is the case, and there is no dialogue between the parties, it behoves the person who is ill but sufficiently well enough to go and get a medical certificate, to get a certificate that makes some sense.  The mother may not be able to attend “work” today, but just exactly what her work is and why she cannot come to court escapes me. 

3. The father has come here today expecting the Court to proceed with the contravention application on the basis that he has not seen his child as was required by the court orders.  If the medical certificate is not genuine, and that will be ascertained on the return date, the mother may very well be facing a significant penalty.  On the other hand, if she fails to attend on the next occasion, I propose to give the father leave to have her arrested and brought here. 

4. There is some significance in that because I will not make an order that requires the Australian Federal Police to simply take her to the nearest court to have bail fixed.  If a warrant issues then the mother may remain in custody until the matter comes back before me.  The mother might like to contemplate that, bearing in mind that not only is Christmas coming but so are weekends.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  4 December 2009