PEMBROOK & SNYDERS

[2020] FCCA 3572

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEMBROOK & SNYDERS [2020] FCCA 3572

Catchwords:
FAMILY LAW – Parenting – application to vacate orders for preparation of a family report – where the mother alleges the child suffers from various infectious skin disorders contracted while spending time with the father – where no evidence to suggest the child has contracted any skin disorder from the father – where not satisfied there is any risk in the child or father attending on a family consultant for preparation of a family report – dismiss the application.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS PEMBROOK

Respondent: MR SNYDERS

File Number: ADC 893 of 2016

Judgment of: Judge Young

Hearing date: 14 December 2020

Date of Last Submission: 14 December 2020

Delivered at: Darwin

Delivered on: 14 December 2020

REPRESENTATION

Counsel for the Applicant: Mr White

Solicitors for the Applicant: White Berman Grant Legal

The Respondent: In person

ORDERS

UPON NOTING:

A.The Court is not satisfied that there is presently any evidence that the child will be at any risk in attending an observation with the father and the family consultant is free as far as the Court is concerned to conduct an observation of the child with the father. 

B.That the father confirmed his email details as ... and mobile phone as ... and his medical providers as “B Medical Centre” and “C Medical Centre.”

THE COURT ORDERS UNTIL FURTHER ORDER:

(1)That the respondent file and serve a notice of address for service within 7 days.

(2)That father is file any affidavit material in reply to the application in case filed on 9 December 2020 within 14 days.

(3)That the matter be adjourned to 3 March 2021 at 9.30am for further consideration.

(4)That the application in a case to vacate dates for the preparation for an updated family report be dismissed.

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

.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 893 of 2016

MS PEMBROOK

Applicant

And

MR SNYDERS

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application to suspend orders made on 27 August 2020, some three and a half months ago, to vacate orders for the preparation of a family report.  An application was filed on 9 December 2020, many months after the original application, and served on the father late last week.  While I am told it was served, I have seen no real evidence of service and when I have telephoned the father this morning, he has told me that he did not receive it.  Anyway, I arranged for the application to be sent to him this morning and he has had time to consider it and read the affidavit. 

3. The gist of the application is that the mother in her affidavit in support, filed on 9 December, alleges that the child suffers from various skin infections and disorders.  Most of it is hearsay and hearsay evidence about medical matters is strictly, probably inadmissible, as it is unqualified opinion evidence.  However, also attached to the affidavit is a medical certificate, dated 29 October 2020, which certifies that the child, who is nine and a half years old and lives with the mother, was diagnosed with impetigo following an abrasion on the knee and possible band-aid allergy.  It says that he was prescribed Bactroban ointment to be used topically and oral Cephalexin, which I assume is an antibiotic.

4. Then the child was discharged.  No mention that the impetigo is suspected of having been picked up from the father, which is the allegation made by the mother.  On 12 November, a further medical certificate was provided from the same doctor.  This goes on to say:

   I have reviewed Master X in clinic this AM with a localised rash on the inner right thigh – annular with central clearing.  My clinical impression is of early tinea corporis and I have advised use of topical Lamisil ointment, twice a day until it clears and to continue for one week after it clears.

5. So the child has a case of tinea on the thigh.  It would appear to be what is sometimes called “jock rash”.  The mother, as I say, says that she suspects that the child has contracted these things from the father.  There’s nothing in the medical material to suggest that is the case or even a possibility.  In the absence of any evidence, I do not profess to express any particular view, although I had understood that impetigo is infectious.  The father, not surprisingly considering that he was served very late last week, has not put on any material, but he told me today that he does suffer from a dermatological condition.  He says he has eczema which he treats with a dermatological cream.  He said that he has had eczema on and off since 2015 or thereabouts. 

6. He also mentioned that he suffers from folliculitis, which is a fungal infection of the hair follicles. He told me that he has not seen a dermatologist in some years, but he says that he continues to receive treatment from a GP and he mentioned the two GP services that he sees and he provided that information without any unwillingness.  That then leaves it open for the mother to issue subpoenas to those medical services and inspect the father’s medical records. 

7. Indeed, that is the apparent object, to find some evidence that apparently supports the mother’s suspicions.  It is, in essence, a fishing expedition.  Of course, there is no real reason why that should not take place, as to some degree this is a relevant issue, possibly only marginally.  Anyway, I am not going to make a ruling on that at the moment.  That is a course that is open to the mother.  I suggested to the father that it may be in his interest to annex a letter from his GP to his affidavit, addressing these issues and he said that he was content to do that. 

8. As for the application to vacate the dates for the family report, I dismiss that application.  I will however note that I am not satisfied that there is presently any evidence that the child will be at any risk in attending an observation with the father and the family consultant is free as far as the Court is concerned to conduct an observation of the child with the father. 

9. So there will be an order as follows that the father is to file a notice of address for service within seven days.  He is to file an affidavit in response to the application and case within 14 days.  I recommend that he annexes a letter from his GP. I will adjourn the matter for mention to 3 March 2021 at 9.30 am. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 18 January 2021