SMK and JA

[2003] FMCAfam 557

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMK & JA [2003] FMCAfam 557

FAMILY LAW – Contravention application – contravention of contact order – reasonable excuse – evidentiary value of retrospective medical certificate.

Family Law Act 1975 (Cth), ss.70NE, 70NEA

Applicant: M K S

Respondent: A J

File No: PAM 579 of 2000

Delivered on: 28 November 2003

Delivered at: Parramatta

Hearing Date: 24 November 2003

Judgment of: Scarlett FM

REPRESENTATION

The Applicant appeared on his own behalf.

Solicitor for the Respondent: Ms Ross

Solicitors for the Respondent: Marsdens

ORDERS

1. Count number 1 of the Application alleging that the Respondent contravened Order 6 made on the 31^st October 2002 is dismissed.

2. Count number 2 of the Application alleging that the Respondent contravened Order 6 made on the 25^th July 2001 is found proved.

3. The Respondent has not proved that she had a reasonable excuse for the contravention in Order 2.

4. That pursuant to section 70NG(1)(b) of the Family Law Act 1975, the Applicant Father is to have contact with the child A K born on the 19^th January 1999 on two (2) occasions to compensate for the contact missed as a result of the contraventions found proved.

5. That compensatory contact pursuant to Order 4 of these Orders is to be arranged at a time and date set by the Central West Contact Centre at Harris Park.

6. The Application is removed from the Pending Cases List.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 579 of 2000

M K S

Applicant

And

A J

Respondent

REASONS FOR JUDGMENT

Application

1. The application before the Court is a contravention application.  The father alleges that the mother has breached two separate orders.  In count number 1, he alleges that she breached order number 6, which was made on the 31^st October 2002.  That order was an order made in consequence of the mother being given permission to leave A for a period of time and to take the child with her to P.

2. The order provided that the applicant mother, as she then was, is to do all such things as may be necessary to ensure that the said child shall telephone the respondent on one occasion every fortnight whilst the child is in P.  The father says that the mother failed to comply with that order, in that he received random calls on the 7^th December, the 28^th December and the 18^th January.

3. The mother denies the allegation. She says that she either complied with the order or made a reasonable attempt to comply with the order as required by section 70NC of the Family Law Act 1975. 

4. The father also says that the mother breached an earlier order dated the 25^th July 2001, to bring the child A for contact, which was to take place through the C W C S. 

5. He says that on three occasions contact did not take place, being the

   
   

   2^nd May, 27^th June and 19^th April.  On the occasions of the 2^nd May and the 27^th June, the mother alleged sickness as a reason, and the

   
   

   19^th April was a public holiday.  He said that the mother refused to provide a medical certificate, and refused to bring the child to make up contact.

6. The situation is that the mother says that she did make efforts to telephone whilst she was away in P. 

7. The solicitor, Ms Ross, tendered a telephone bill from P showing telephone calls to A on the 27^th January 2003, 16^th  November 2002, 28^th December 2002 and 11^th January 2003. The father indicated, when these dates were put to him, that he did not have an exact recollection of all of the dates.  It is clear on the evidence before me that there is some difference between the parties as to when those calls took place.

8. The order number 6, on 31 October 2002, was framed in such a way that there should be one telephone call or, there should be a telephone call on one occasion every fortnight, without specifying a time or a date. 

9. I am not satisfied that the applicant has made out his case in respect of that allegation, according to the requisite standard, which is the balance of probabilities.  The admission, which is an admission against interest, for being unsure of the dates, is a matter I take into account. The telephone account that was tendered by the respondent's solicitor certainly indicates to me telephone calls or attempts at telephone calls within that period of time which constitutes a reasonable compliance.  That allegation will be dismissed.

10. I turn to the other allegation of failing to provide the child for contact on the relevant periods of time.  The father has provided, annexed to his affidavit, a letter from the C W C S, certifying dates when contact did and did not take place.  As far as the 19^th April 2003 was concerned, the note is that that was Easter Sunday and C W C S was closed. That public holiday, therefore, would have made it impossible for the mother to have complied with the order.  Whilst the contact did not take place, if that were the only allegation, the mother would be able to establish a reasonable excuse. 

11. But there are two other allegations relating to sickness.  One, on the

    
    

    2^nd May 2003 and one on the 27^th June 2003.  The letter attached to the father's affidavit says in its final paragraph:

    “Of the two missed contact changeovers this year in which illness was cited as the reason for not attending, no medical certificates were supplied to our service by the residential parent”.

12. The mother has tendered one medical certificate as part of her case.  The certificate was admitted into evidence as exhibit 2. It is noteworthy to read the contents of the document, which is more of a letter on the letterhead of one Dr A H, rather than a certificate certifying an examination by a medical practitioner and a diagnosis. 

13. The letter says, and I note that the letter is dated 13 November 2003:

    “To whom it may concern, 

    This is to certify that Ms A K S, date of birth 19 January 1999, of 16/580 P Road, L, was seen by me on 14 May 2003.  Mother reported that the child was sick with abdominal pain on 2 May 2003.  Examination did not reveal any serious sickness, and Panadol was advised”. 

14. The letter from Dr H of the 13^th November certainly confirms that the doctor saw the child on the 14^th May, but that is not a date that forms part of the father's allegation.  The letter makes no mention at all of the 27^th June.  The letter also contains no more than a hearsay assertion by the mother, given to the doctor on the 14^th May, that the child was sick on the 2^nd May. 

15. With respect to Dr H, that letter is of no greater evidentiary weight than a straight assertion by the mother, given directly by the mother to the Court.  The doctor is in no more position to say whether or not the child did have any symptoms of illness on the 2^nd May 2003, than any other person, because the doctor did not see the child or examine the child on the 2^nd May.  All the doctor can do was say that on the 14^th May, some 12 days later, the mother told him that the child was sick. 

16. I am not satisfied that the letter dated the 13^th November does contain evidence of any illness sustained by the child on the 2^nd May.  I am of a view that that allegation has been found proved.  I am of the view that the respondent has not proved that she had a reasonable excuse for that contravention.

17. Now, that means that I have found one of the two accounts in the allegations found proved.

18. It is for these reasons that I make the Orders set out at the commencement of this decision.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  C. Soliman

Date:  9 December 2003.