Brennan & Sahli
[2022] FedCFamC1F 674
Federal Circuit and Family Court of Australia
(DIVISION 1)
Brennan & Sahli [2022] FedCFamC1F 674
File number(s): BRC 7083 of 2015 Judgment of: BAUMANN J Date of judgment: 9 September 2022 Catchwords: FAMILY LAW – PARENTING – Where the parents resolved many issues by consent – Dispute as to whether the three children should be vaccinated for the Covid-19 virus – Whether it is in the best interests of the children for a week about arrangement to be ordered – Orders made in accordance with the mother’s proposal for the children to live with her and sped significant and substantial time with the father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA Cases cited: Cranston & Persson (No 2) [2022] FedCFamC1F 187
Goode & Goode (2006) FLC 93-286
Lamos & Radin (No 2) [2022] FedCFamC2F 167
Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 22 August 2022 Place: Brisbane The Applicant: Litigant in person The Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms M Cullen Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 7083 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRENNAN
Applicant
AND: MR SAHLI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
9 September 2022
THE COURT ORDERS:
1.That the mother have sole parental responsibility with respect only to the specific issue of the children, X born in 2009, Y. born in 2010 and Z born in 2012 (“the children”) receiving any vaccinations against the Covid-19 virus.
2.That in addition to the time the children are to spend with the father pursuant to the final parenting Orders dated 26 May 2022, the children shall spend time with the father as agreed between the parents, but failing agreement each alternate weekend from after school Thursday to before school Monday (or Tuesday if the Monday is a public holiday or pupil free day), with the father to collect the children from school or after school care and return the children to the same venue at the conclusion of time.
3.That the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brennan & Sahli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
These proceedings relate to two discrete issues which are still in dispute between the Applicant mother, Ms Brennan (“the mother”) and the Respondent father, Mr Sahli (“the father”) after the parties entered into final consent Orders before me on 26 May 2022 in relation to a number of other issues. For context, those final Orders are Appendix One to these Reasons. The two remaining issues in dispute have narrowed to:
(a)what time the children, X born in 2009 (now aged 13); Y born in 2010 (now aged 12); and Z born in 2012 (soon to be 10 years of age) should spend with the parents; and
(b)whether the three children should be vaccinated against Covid-19.
Context
To provide context to these Reasons, the following history will be of assistance. In making statements of fact throughout, they should be construed as findings of fact.
The father is now 49 years of age; was born in the Country B but has been a permanent resident of Australia since he was an infant. The mother is 46 years of age; was born in Country C and has also been living in Australia since she was an infant. The parties commenced cohabitation in 2005 in City F. At the time, the father was the father of two children from an earlier relationship, Ms D (aged now 20 years) and Ms E (aged approximately 19 years). The parties married in 2008 and during the course of their relationship as earlier indicated, they were blessed with the birth of three children.
The parties separated on or about 21 July 2014. At that stage, as I have indicated, the parents and family were living in City F. At that time, the children of the father’s earlier relationship and his elderly mother also were living in City F. The father had significant care responsibilities for the two older children of his earlier relationship. Shortly after separation the mother, who is an allied health worker by profession employed by a government department, sought and was approved to transfer her employment from the City F region to G Region – particularly in the H Town area. I am satisfied on all the evidence that the father, whilst not perhaps being happy that the mother moved post-separation, did not formally oppose her movement.
The result is that from late 2014, the three children and the mother have resided permanently in the H Town of G Region. The father gives evidence, which I accept, that it was difficult for him to leave City F, not only because of his employment but particularly because of his care responsibilities for his two older daughters and his mother. The evidence suggests that it was his hope and certainly the mother in this case’s anticipation that he would move to G Region earlier than he did. Nonetheless, Judge Spelleken on 5 May 2016 made final Orders at that time that provided for the children to live with the mother; for the parents to have equal shared parental responsibility; for the children to spend time with the father for half of the school holidays with the right to spend four nights a month on the father’s election during school terms.
The father did indicate to the mother on more than one occasion his intention to relocate to G Region. He must have known that his failure to come to G Region and to share the day-to-day responsibilities of the three children was putting further pressure on the mother. Y and Z have been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) which has caused management of their behaviour to be time-consuming. The mother says that the father’s failure – despite indicating an intention to relocate to do so – was one of the reasons why she sought by Application filed 6 August 2020 to relocate with the children to her country of origin, Country C.
As soon as the Application was filed, the father has in every way possible opposed the children’s relocation. Because of the international relocation aspects of the matter, the proceedings were transferred from the then Federal Circuit Court to the Family Court of Australia. A Registrar of the Family Court ordered that a family report be prepared and Ms J, a Family Consultant (now Court Child Expert) attached to the Brisbane Registry interviewed the children on 28 January 2021 and produced a report which is tendered in these proceedings and marked as Exhibit 4. Ms J was the subject of brief cross-examination before me.
When the matter came into my docket in early 2022, it became apparent that for the matter to progress to trial (the mother still, with the benefit of legal representation at that stage, pressing for permission to relocate to Country C) that updating the children’s wishes would be important. Accordingly, in circumstances where my recollection is that Ms J was not available at the time, a different Family Consultant or Court Child Expert, Ms K interviewed the children for a children’s wishes report. That report is before me as well and marked Exhibit 5. The importance of the second report is that by the time the children’s wishes were collected, the father had in fact relocated to H Town, that having occurred in early 2021 (after the first family report).
In May 2021 Orders were made by consent for the children’s time with the father during school terms to take place between after school Thursday until 5.00pm Sunday, each alternate week. They were the Orders in place at the time of the hearing before me. After making final Orders in respect of the matters referred to in Appendix One, the Court listed the matter for trial. The trial proceeded for one day before me on 22 August 2022. On that day, the mother and father did not have the benefit of any legal representation. I was assisted by the fact that the Independent Children’s Lawyer in this matter had briefed Counsel Ms Cullen, who undertook most of the cross-examination of the parties (the only witnesses in the case other than Ms J), and made submissions.
Competing Proposals
The proposals in respect of vaccination for the Covid-19 virus, were clear. The mother takes the view the children should be vaccinated against the Covid-19 strain and the father opposes the children being vaccinated. In respect of parenting issues, after some initial observations by the Court, the mother and the Independent Children’s Lawyer produced a consent that proposed orders in respect of the children’s time with the father each alternate weekend as the parents may agree but failing agreement, from after school Thursday until before school Monday morning or Tuesday in the event of a public holiday or pupil free day with the father to collect the children from school or after school care and return the children to the same venue (school) at the conclusion of time.
The consent is marked as Exhibit 1. The consent reflected a slight variation to the mother’s initial position which was that the time should continue from after school Thursday to conclude at 5.00pm Sunday. Clearly, the father did not agree with that condition and his position ultimately was that the children should immediately commence a week-about equal time regime with changeovers on a Monday after school. His earlier applications and case outline indicated that such an arrangement ought not take place until early 2023, however he amended his position before the trial started so as to be able to submit and contend that the children’s time would commence week-about immediately.
Principles
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
The Parties
Although the issue is somewhat narrow, it is important to the parties and to the children and it is best to look at the competing proposals within the matrix of the relevant primary and additional considerations set out in the Family Law Act 1975 (Cth) Before doing so, I choose to make some comments about the parents. As Ms J opined and with which I entirely agree, these are good and capable parents.
The mother, as I have indicated, is an allied health worker by profession. The father is a community worker. Clearly, therefore, each party has in their work and in their skills an emphasis on child development and a knowledge of child development. The fact that the matter has progressed so far since separation with little court intervention is, I believe, a tribute to the way in which they have to date resolved disputes that have clearly existed from time to time.
In this regard, it ought to be recalled that at the time of separation, X was five years of age; Y was four years of age; and Z was less than two years of age. It is clear to me from the evidence given by the parties and their affidavits which were generally respectful of each other, that the mother believes she has done very much the “hard yards” with the three children since 2014 in circumstances where the father was unable, he says, to come to G Region to assist. As already indicated, not only more recently has the mother been managing the challenges of teenager-hood of X, she has had to deal with many of the development phases of these two younger boys through young infancy and preschool to the current stage.
The father really makes no criticisms of the mother’s parenting, although there are some differences in style which the material identified. The father on more than one occasion has indicated that it had always been his hope to have equal time. He recognised that when he decided for the reasons he gave, which are understandable, to remain in City F, that an equal time regime was not practicable. Whether it is reasonably practicable now is a matter for the court on the evidence. My impression from the father is that he genuinely believes that he is “entitled” to equal time because he is as good a parent as the mother. He also believes he has some making-up of time with the children to achieve because of his absence for what is over seven years and wishes to have extra time so he can, as he described it, “solidify” his relationship with the children.
I sought to explain to the parents at the end of the trial that the principles earlier identified about how orders in the best interests of the children are to be assessed. It does not carry with it any element of either punishment of a parent or reward to a parent. Put simply, it is not appropriate in this matter to consider whether the father ought to have moved from City F to G Region earlier than he did and by not doing so, in some way punish him for his decision. Furthermore, it is not appropriate, the mother carrying the full responsibilities basically day to day of the children for seven years, to reward her for her efforts. As the principles earlier enunciated set out, I must look at the evidence now and assess them in determining what orders are in the best interests of the children.
Primary Considerations
Both parties’ proposals make clear that they see a benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)). I agree. Although s 60CC(2)(b) requires the Court to give greater weight to the need to protect the children from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence, none of the evidence before the Court reaches a level of a concern such that the children are being exposed now to physical or psychological harm, abuse, neglect or family violence. In saying this, I am aware that the father’s same-sex partner Mr L has had some issues, particularly with X in the past.
According to X’s comments to Ms K, X manages her relationship with Mr L in a way which limits the potential conflict with him. Neither the mother nor the Independent Children’s Lawyer contended that Mr L presents as a risk to the children, and I do not find that he does. I understand Mr L, who did not give evidence in this case but had been interviewed by Ms J, is an educator and I have no evidence to suggest that the relationship between Mr L and the father is other than loving and supportive.
Additional Considerations
The Court is required to consider any views expressed by the children. In this regard, both parents have, to some degree, discussed their proposal with the children, although it seems to me that the major issue of relocation to Country C was the primary concern that the children had been to deal with. I would give cautious weight to anything the children say to each parent, as set out in their affidavits, because being aware of the conflict, the children could have a tendency to say to each parent what they think that parent wants to hear. Because Ms J had not seen the children since the interviews for the family report back in January 2021, I put to Ms J aspects of the children’s wishes as contained within the children's wishes report prepared by Ms K (who was not the subject of cross-examination).
I did not put to Ms J the conclusions or recommendations of Ms K. It was not appropriate for Ms J to act in some way as a critique of Ms K’s recommendations. Nonetheless, the children’s wishes reports make it clear to me that in respect of the children:
X
(a)As X expressed initially to Ms J at a time when the father had not relocated to G Region, she regarded it as unfair that the father was not having equal time. She said to Ms J that it was her idea to have equal time. This view is maintained at paragraph 19 of the report of Ms K where X is recorded as saying that she still regards the existing regime as unfair and noting that it was “bias” towards the mother, given she has the majority of time with her and her siblings. She expressed a view that she wished to spend equal time with her parents. However, in the wishes captured by Ms K, Ms K clearly sought further information in respect of how equal time would work in the father’s household and in particular, in relation to her interaction with Mr L;
(b)At paragraph 24 of Ms K’s report, the following is noted:
Noting her preference to spend equal time with the parents, and this suggesting the above cannot be that bad [being spending time with [Mr L] who she described she disliked], [X] said, ‘I don’t really talk to him. I isolate myself from him’. She explained that is how she will manage living equal time with her father and his partner present. Exploring further her dislike of [Mr L], [X] explained that when she recently had an argument with her father, his partner ‘walked up to me and said if I want attention, you probably shouldn’t start up an argument. I said he shouldn’t behave like my father’.
Y
(c)Noting the diagnosis of Y and some of his behavioural issues, I am prepared to accept that he is not as mature as X. In respect of his wishes as to the arrangements as they exist and/or could increase, at paragraph 32 Ms K records:
[Y] confirmed that he lives with his mother and spends each alternate weekend with his father Thursday to Sunday. Reflecting on the existing regime, [Y] said, ‘it’s pretty good. I like it. I wouldn’t want to change it. I feel it’s okay. I feel we can keep going with that’.
Z
(d)Although Z presented to Ms K as “somewhat nervous”, he was engaging and cooperative through his interview. He was positive about both his parents. When he was sked specifically about whether he wished to remain where he is, Z noted “kind of”. This would seem to me to be mostly related to the then pending application of the mother to relocate. He was clearly concerned that if they relocated he would not see his father and he would be sad about not seeing him. In my view, the comments of Z throughout the interview with Ms K give no hint that he would seek any change to the current broader arrangements in place. Considering that this child has been in the primary care of the mother from the age of two, that is hardly surprising, although he does enjoy the time with his father.
The Court, under s 60CC(3), is required to consider the nature of the relationships the children have with each of the children’s parents and other persons. I have already made a comment about some of the tensions that may exist between X and Mr L. In respect of the relationship the parents have with their children, I am satisfied, as Ms J was, that they have intact, healthy and supportive and loving relationships with each of their parents. It was a feature of this case, and one which I give credit to the mother about, that after the paternal grandmother moved because of her ill health from City F to H Town, she has at times when the children are in her care, maintained a relationship between the children and the paternal grandmother.
The father, of course, does so as well but there is no requirement on the mother to do so during the time the children are in her care. She clearly sees the paternal grandmother as an important person in the children’s life. I agree.
Although the Court is required to consider the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in decision-making, spend time and communicate, I would not, as I have already indicated, be highly critical of the father’s failure to move closer to where the children were living from late 2014. Necessarily, however, it seems to me that the mother has been required to make most of the day-to-day decisions.
I do not regard the parents as having failed to fulfil their obligation to maintain the child. The father felt it was important to tell me that he has paid the sum of $184,874.29 in child support payments to the mother. The fact that he chose to be so precise reflects, in my view, that he wished to make the point that he has met his responsibilities. The mother does not criticise the father’s payment of child support. Her criticism was, if any, that he failed to come to G Region earlier to support her when she was managing the three children from separation by herself and absent from her family in Country C. It is not clear to me that the father properly understood or gave the mother sufficient credit for her efforts in that regard, efforts which had no doubt drawn the children and the mother closer.
I will deal with the requirement under s 60CC(3)(d) about assessing the likely effect of changes in the children’s circumstances in my conclusions about this matter. As the parties live close to each other, there are no real practical difficulties or expenses associated with the children and they are spending time with the parents. I make no adverse comment about the parents’ capacities or attitude to parenting. Clearly, there are some nuances of their parenting (and the vaccination issue is one) where they hold strong, but different, views.
As Ms Cullen, in her submissions on behalf of the Independent Children’s Lawyer, identified, if anything, the major issues of conflict in parenting styles seemed to be around the sports issues; medication and support of the boys ADHD; homework; and general communication issues. It could not be said that either parent’s views on some of these issues were out of the range. I took the view that the father may not be, on all the evidence, as focused on the children’s homework commitments as the mother has been since separation, and still is. The father says that he is heavily involved in the children’s school, and Exhibit 2 was an email that he sent to the school in mid-2022 in response to an intention that Y be involved in additional literacy classes. The father, in his evidence, was critical that the school did not respond to his email. I have no evidence from the school, but what I am informed and is an accepted fact, is that the child has in fact taken up the additional learning support that was offered to him by the school. Both Y and Z have individual learning programs provided to them.
In respect of medication for ADHD, the evidence is that the mother follows somewhat strictly the recommendations of the children’s Paediatrician, which includes medication and a certain regime of Ritalin to assist the child’s behaviour. The father, as is consistent with some of his other contentions, is not favourably disposed to the use of medication, but believes the ADHD, as diagnosed, can be managed with other techniques and behaviour management. In this regard, the mother said, and I accept, that when the father initially espoused such views, she did in fact undertake other strategies, but has found that the prescribed medication when administered as required has had the most beneficial effect on the children’s behaviour at this stage. I accept the mother’s evidence in that regard as she has had, overwhelmingly, the primary care of the children.
The issue of sport arose in circumstances where the children have outside activities, but the mother says, and broadly I accept, that the father will allow the children to choose whether they engage in those activities when they are in his care. It seems that his position was shaped by the fact that if they engage in outside activities when in his care, they were missing out on time with him which he is trying to maximise. He espoused that he sees the benefit of the children involved in outside activities. In particular, in relation to the boys’ ADHD management, he acknowledged that exercise and outside activities were good for them.
The issue of sport for X is a little confusing. Clearly, on the evidence of the mother, sport is an activity which both the mother and X and enjoy – the mother still playing competitively at this stage at the same venue. I can well accept that the tensions between the parties at times (perceived or real), which the father said and described as “akin to a hot knife on butter”, may have encouraged the father not to participate in as many sporting activities as the child, X, may have wished to engage in when she is in his care. The father needs to be careful to allow the child to choose in his care, in circumstances where a commitment to a sport and activity or a team development is part of the educational and developmental needs of the children, and a commitment which, unless otherwise agreed to with the mother, should be maintained.
There are no family violence orders or evidence of family violence in this case which need to be assessed as required by S 60CC(3)(j) and (k). The Court is required to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. In this regard, if the Court was not to order equal time, I believe the father will not persist in his desire for equal time. Certainly, he would have to overcome the requirements of Rice & Asplund (1979) FLC 90-725 with any future application. However, his wish and view that he is “entitled” to equal time and that it is in the best interests of the children, is unlikely to be dented by the proceedings that have taken place in Court on this occasion.
Conclusion as to Time
By reason of the orders made, the parties share equal shared parental responsibility. As a result, the Court is required to consider whether equal time is in the best interests of the children and reasonably practicable. The mother opposes equal time and the father contends for equal time. Based on the findings made in these Reasons, to date, I am not satisfied that it is in the best interests of the children to move to an equal time regime, at this stage. I say that both individually and collectively for the children, and, whilst I note the express wishes of X, there is nothing to suggest that she does not wish to be other than in a family unit with her brothers. I can accept that, developmentally, there may be occasions where she may be, in the future, treated slightly differently than the boys.
Neither of the boys gave any indication that they would support an equal time arrangement. However, my view would be that the children would probably cope with it. Having circumstances where all the evidence is – and the father accepts – that the children have thrived in the mother’s primary care and that they are enjoying time with the father, at this stage, I am not satisfied it is in the best interests of the children to move to an equal time regime.
Whilst there are some issues of communication between the parties, I would not regard that as being an impediment to an equal time regime. There are slightly different parenting styles, but they do not erupt in a way which are creating issues with the children, at this stage. Frankly, as the current evidence suggests, the children are doing well, have intact relation with both parents and the risk of a change causing an effect on those real benefits now is a further matter which I have taken into consideration, in not ordering equal time.
Although I am not bound by the consent between the mother and the Independent Children’s Lawyer, the arrangements which they have agreed to, and which, consistent with the orders made earlier by the Court, combine to make it clear that the children are spending substantial and significant time with their father.
I believe it would be beneficial for the children for changeovers to occur on a Monday, rather than a Sunday. I made that observation as a preliminary view and it was adopted by the mother and the Independent Children’s Lawyer. That will at least give the father a real obligation to prepare the children for school on a Monday, including ensuring that they have their homework completed; preparing their lunches and the like, and ensuring their school uniforms, if required, are ready to be worn. To date, those duties have all been undertaken primarily by the mother, in her home. I have no concern that the father, in his household, cannot achieve those tasks effectively.
Accordingly, I make the orders, in respect of time, as set out in the commencement of these Reasons, consistent with the consent of the mother and the Independent Children’s Lawyer, because I am satisfied they are, at this stage, in the best interests of the children.
Vaccination
The Court has, in recent times, been required to adjudicate on disputes between separated parents as to whether children should be vaccinated. Sometimes the position of the parties is ill‑informed. Sometimes the parents are, really, just conflicting between each other because it is just another way of disagreeing. That is not the case in this matter. In this matter, both parents are intelligent, tertiary educated and have an understanding of child development.
The mother, being employed by the government, was required to be vaccinated so as to maintain her employment. Even though that was a mandate, the mother says – and I accept – that she believes it was appropriate that she be vaccinated and has been so vaccinated.
Perhaps not surprisingly, the mother wishes the children to be vaccinated. In respect of the evidence she relies upon to support an order that the children be vaccinated, I detail that evidence from the material she has produced, as follows.
(a)Evidence from the children’s general medical practitioner Dr M for each child dated 28 June 2022 (Annexure 23);
(b)Information provided by the Queensland Government and the Australian Government which includes a recommendation for children from age of five to receive the vaccination (Annexure 28);
(c)Information provided publicly by the Australian Government on who should get vaccinated and why (Annexure 29); and
(d)Covid-19 vaccine information for children, teenagers, parents and guardians (last updated 29 April 2022) issued by the Australian Government (Annexure 30)
The father holds a genuine, on my assessment, view that the risks of vaccination outweigh the benefits, to the children. In that regard, he is not vaccinated. There has been an effect of his failure to vaccinate and that has been the loss of employment, because the group he was employed by required vaccination as a mandated requirement of employment. There is a further issue that, because he is unvaccinated, he is unable to visit his mother in the care facility she resides in and arrangements are made for him to see his mother outside the centre. In that regard, I should note that the mother has been able to – and does – visit the paternal grandmother in the centre (because she is vaccinated) but that the children, who are non‑vaccinated, cannot enter the centre, but, similarly, see their paternal grandmother outside the centre.
The father relies upon the following evidence to sustain his view that the Court should not make an order which would authorise the children to be vaccinated, as follows:
(a)Letter by Dr O, a general medical practitioner, dated 14 June 2022 (Annexure 9);
(b)Although the father (at paragraph 37) identified a state Senator as an advocate who apparently does not support vaccination, there is no “evidence” from the Honourable Senator before this Court. What the Senator might have tabled in the Senate and when, is unclear. It is not the function of the Court to make “investigations” or to access a YouTube link the father has referred to at Annexure 10. None of this is probative evidence;
(c)Tendered and marked Exhibit 3, are two reports the father relies upon, being:
(i)A “monograph” compiled by an academic and consultant Dr Q from a V University. The report is over 100 pages in length and through that seeks to support a proposition, described by Dr P, Professor of Medicine, that:
It is abundantly clear that there has been repression and suppression in scientific circles and the media of any views or suggestions that run counter to the government/mainstream narrative. However, many studies now indicate that the Covid-19 vaccines, especially the mRNA vaccines, are less than ‘safe and effective’, and the ramifications are truly confronting. Armed with these facts, the scientific and medical communities can now begin proper discussions of potential solutions that improve the benefit/risk ratios for the public and not harm and livelihoods of professionals seeking the best outcomes for their patients.
The “facts” said to support the opinion have not been established in this Court. The opinion has not been tested. Contrary views, including those informing and advising Government, clearly exist – such that more debate may well continue. However I am not prepared to accept the opinion in this academic paper, expressed as “definitive”, in this case. I accept risks do exist, but that must be weighed against benefits for these children;
(ii)An article apparently appearing in U Media in or about mid-2022, by commentator Mr S. This is of no assistance. It is an opinion, more public policy orientated or political, than medical.
In respect of the father’s material, and noting that the mother produces evidence from the children’s treating health professional in support of vaccination, the Court inquired as to how he identified Dr O, who provided a report to the Court. Dr O’s report, upon which he was not cross‑examined, as the father did not produce him as a witness, states as follows:
I have been a GP for almost 30 years.
I am a fellow of the RACGP. I have been in practice as a senior GP in full-time clinical practice at [R Medical Practice] for the last 4 years.
I have spoken to [Mr Sahli] with respect to vaccination of his children aged 9, 11 and 13. I am aware of their medical histories.
I am firmly of the opinion that these children should not receive a Covid‑19 vaccination.
The risk for the children in terms of future Covid‑19 infection is virtually zero.
My understanding is that all 3 children have actually had Covid‑19 and had a relatively mild illness. They now have natural immunity.
The Covid‑19 vaccinations on the other hand represent real and severe short, medium and long-term risk which includes but is not limited to, severe allergy, blood clots, cardiac and neurological problems, seizures, infertility and sudden death.
My professional opinion is that at the very least the decision to vaccinate with this experimental gene therapy medication is that this decision is deferred until 2024.
The father confirmed that Dr O has not seen the children. When the Court asked him how he sourced Dr O, he said that he is part of a network of people who oppose vaccination.
A further reason that the mother seeks to have the children vaccinated is so that there are no difficulties, in the future, in the children travelling to Country C. The mother did travel to Country C with the children in 2020 for four months. This was so that she could see and spend time with her father who was terminally ill and died while she was in Country C. Upon return to Australia in 2021, the mother and the children had to endure the then required quarantine requirements. Whilst the mother accepts that at the current time, travel in and out of Australia and in and out of Country C does not require vaccination certificates, the mother cautiously says this could be a problem in the future and beyond her control. I accept that the history that has taken place in Australia and in other countries could mean that at some future date, new restrictions could be imposed.
The issue to do with vaccination has been the subject of many decisions of the Court at a single judge level in both Division 1 and Division 2. A recent decision of McClelland DCJ, which is published under the pseudonym of Cranston & Persson (No 2) [2022] FedCFamC1F 187, published on 25 March 2022, sets out in that case relevant factors that the Court should consider. I agree with the observations of the learned Deputy Chief Justice and accept (in this case this was not otherwise argued) that the Court has jurisdiction to deal with issues such as children’s vaccination. In his Honour’s judgment, he refers to a list of factors which were found by Judge Hughes in Lamos & Radin(No 2) [2022] FedCFamC2F 167 where her Honour at paragraph 11, having reviewed similar public health information as is available to me, identified 11 factors as follows:
(i)COVID-19 is a virus that can cause serious illness, death and long-term health issues.
(ii)The virus is highly contagious and spreads easily.
(iii)Vaccines assist the immune system to protect from serious illness and long-term effects arising from COVID-19.
(iv)Vaccinations were not approved in Australia until rigorous testing had occurred and the Therapeutic Goods Administration (“TGA”) and ATAGI had established that they were safe.
(v)Vaccinations for children aged 16 and above were approved in Australia in January 2021.
(vi)Vaccinations for children aged 5 to 11 were provisionally approved in Australia in December 2021.
(vii)Children aged 5 to 11 years receive a smaller dose of the vaccine than adults.
(viii)Millions of children have been safely vaccinated across the world.
(ix)Minor side effects of the vaccine can be experienced by adults, young people and children as the immune system responds to the vaccine. More serious side-effects of the vaccine are rare.
(x)There is a very low risk of myocarditis (inflammation of the heart muscle) or pericarditis (inflammation of the outer lining of the heart) as a result of receiving the vaccine but the rate of myocarditis and pericarditis is higher in people who contract COVID-19 than those who have had a COVID-19 vaccination.
(xi)Despite the (low) risk of adverse side effects, vaccination of children and young people is strongly encouraged.
I agree that the application before me identifies those same relevant factors in this case. I also say, despite the evidence of Dr O, that I could not be satisfied that there is verifiable evidence of natural immunity to contracting the virus or any mutation a second or more times.
In fact, it is highly publicised that people can suffer from Covid-19 on more than one occasion. Inevitably, the decision as to whether the children should or should not be vaccinated falls upon an assessment of the risks and benefits. Simply stated, the mother says the benefits of vaccination outweigh the potential risks. She does not say that there are no risks but just that they are outweighed by the benefits. The father has a strong and I accept genuine view that the risks are such that the benefits are outweighed. I disagree.
In my view, it is in the best interests of these children that they be vaccinated and I shall make an order that the mother have authority to attend to such vaccination by ordering that the mother has the sole parental responsibility with respect to the specific issue of the children receiving any vaccinations against the Covid-19 virus.
The orders at the commencement of these Reasons are in the children’s best interests. I discharge the Independent Children’s Lawyer.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 9 September 2022APPENDIX ONE
1.That the children, X born in 2009 (”X”), Y. born in 2010 (”Y”) and Z. born in 2012 (”Z”) (collectively “the children”) live with the mother.
Parental responsibility
2.That except for what is provided in these Orders (and subject to a further order determining the issue in dispute relating to the Covid-19 vaccination), the parents have equal shared parental responsibility for all of the children’s other major long term issues, including but not limited to:
(a)The children’s education (both current and future);
(b)The children’s religious upbringing;
(c)The children’s health care;
(d)The children’s names; and
(e)Any changes to each child’s living arrangements that would make it significantly more difficult for the child to spend time with either parent.
3.That in exercising their shared parental responsibility, the parents are to consult with each other in respect of decisions pertaining to the long term care and welfare of the children as follows:
(a)They shall consult the other parent about the decision to be made;
(b)They shall consult the other parent on terms that they agree; and
(c)They shall make a genuine effort to resolve any issues not agreed in order to come to a joint decision.
4.That in the exercise of equal shared parental responsibility, the father consents to the mother organising the following medical treatment and learning support for the children:
(a)For X to attend appointments to complete the assessment by a psychologist at W Centre and to follow up with her paediatrician with such assessment, and to thereafter implement any treatment recommendations of the paediatrician (with both parents to be a participant at the appointment with the paediatrician where such recommendations will be discussed);
(b)For X to continue attending upon her treating counsellor, Ms T, as recommended by Ms T, once she resumes offering treatment appointments;
(c)Should the parents consider X to need additional support from a psychologist in addition to counselling with her current treating counsellor, they will jointly make arrangements for X to be referred to, and receive that additional support;
(d)For Z and Y to continue to attend upon their respective paediatricians as and when recommended by their paediatricians;
(e)For Z to commence occupational therapy as recommended by his paediatrician and to continue such occupational therapy as may be recommended;
(f)For Z and Y to continue to take medication as prescribed by their respective treating paediatricians with both parents to ensure that such medication is taken by the children as prescribed during school terms;
(g)For each child to receive the Human Papillomarivus vaccination (HPV) if it is offered at school, or otherwise organised by the mother;
(h)For each child to receive an annual influenza immunisation shot, to be organised by the mother; and
(i)Any additional learning support that each child’s school may offer to any of the children, with the mother to ensure she provides the father with information in relation to any learning support.
5.That in the event both parents are not together when follow up appointments are being booked with each child’s treating paediatrician or other treating medical specialist, the parent present at the time of booking will send a text message to the other parent in order to ascertain if the date proposed for the child’s next appointment is suitable. If no response is provided at the time of booking, the booking parent will notify the other of the date of the next appointment within twenty four (24) hours. If the time booked is unsuitable to the other parent, they will notify the other within three (3) days of alternate dates that would suit and the booking parent will use their best endeavours to reschedule so both parents can attend.
6.That in the event that one parent cannot attend an appointment with a child’s paediatrician or treating medical specialist, the attending parent will provide the other parent with a written summary of any diagnosis and medical treatment recommended by, or undertaken upon, the children by their treating medical practitioner as soon as possible after each medical appointment, and provide that parent with any information or medication the child requires to ensure the children receive the treatment during their time with the other parent.
7.That if the father and mother despite their best efforts are unable to reach agreement in relation to a decision about the children’s long term care and welfare, then they will attend upon a jointly appointed family dispute resolution provider and make a genuine attempt to resolve their dispute.
Children’s time with the father during school terms
8.That changeover is to occur at the children’s school on school days, and on a non-school days the mother shall drop the children to the father’s residence at the commencement of time and the father shall drop the children to the mother’s residence at the conclusion of time.
School holidays (Country C visits)
9.That the arrangements for school term time as ordered by the Court at a future date and school holiday time otherwise set out in these Orders is suspended in circumstances as follows:
(a)In 2023 and each alternate year thereafter, the mother is at liberty to take the children to Country C for an extended holiday for the June/July school holiday period, plus an adjacent two (2) weeks (four (4) weeks total) on either side of the school holiday period.
(b)In 2022 and each alternate year thereafter, the mother is at liberty to take the children to Country C for an extended holiday for a period of not more than four (4) weeks during the Christmas school holiday period and for that purpose:
(i)the father will spend ordinary time immediately after school term commencing the Thursday before the school holidays commence and conclude at 9.00am on the following Monday; and
(ii)the mother is at liberty to take the children to Country C from that Monday for a period of four (4) weeks.
10.That unless otherwise specified in these Orders, the children’s school holidays shall be based on the weeks where all of the children are all on school holidays at the same time. The children’s ordinary term time arrangements continue outside of these times.
11.That in even numbered years for the Christmas school holidays the children shall spend:
(a)the first weekend from 3.00pm Thursday to 5.00pm Sunday with the father;
(b)from 5.00pm on the first Sunday for a period of three (3) consecutive weeks with the mother;
(c)from 5.00pm on the fourth Sunday for a period of two (2) consecutive weeks with the father; and
(d)resuming ordinary term time arrangements thereafter
12.That in odd numbered years for the Christmas school holidays the children shall spend:
(a)the first weekend from 3.00pm Thursday to 5.00pm Sunday with the mother;
(b)from 5.00pm on the first Sunday for a period of three (3) consecutive weeks of the Christmas school holidays with the father (including Christmas Day);
(c)from 5.00pm on the fourth Sunday for the remainder of the school holidays with the mother; and
(d)resuming ordinary term time arrangements thereafter.
13.That in the event both parents are at home (in the H Town and surrounding areas) to celebrate Christmas Day, the children shall spend time with the other parent to celebrate Christmas from 9.00am Boxing Day until 9.00am the following day.
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