CLAY and DALLAS

[2022] FCWA 18

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: CLAY and DALLAS [2022] FCWA 18

CORAM: SUTHERLAND CJ

HEARD: 18 JANUARY 2022

DELIVERED : Ex tempore

FILE NO/S: [Redacted] of 2009

BETWEEN: MR CLAY

Applicant

AND

MS DALLAS

Respondent

Catchwords:

CHILDREN - Whether 15 year old child should be permitted to be fully immunised against COVID-19 - Consideration of child's medical history - Child presented as mature and considered young woman whose views should be given significant weight

Legislation:

Family Court Act 1997 (WA)
Evidence Act 1906 (WA)
Evidence Act 1995 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Robin Cohen SC

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Legal Aid WA

Case(s) referred to in decision(s):

Covington & Covington (2021) FLC 94-014

McGregor v McGregor (2012) FLC 93-507

Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Clay and Dallas has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1[Child A], who is 15 years old, wishes to be fully immunised against COVID-19. She received her first COVID-19 vaccine in November 2021 and now wishes to proceed with the second and third doses in the usual course. Child A’s parents do not agree on whether Child A should be fully immunised against COVID-19. Her father [Mr Clay] sought that he be permitted to enable Child A to receive her full course of immunisation.

2On the other hand, Child A’s mother [Ms Dallas] does not support Child A being fully vaccinated, firstly on the basis that Child A has pre‑existing medical conditions, including a heart murmur, which means that she is exempt from being required to have the vaccine, and secondly because the mother is sceptical about the safety and efficacy of the vaccines. Today, the mother advised that she sought that Child A not be fully immunised until all of her existing medical conditions are fully reviewed by specialists.

3On 17 January 2022, the Independent Children’s Lawyer (the “ICL”) filed a Minute of Proposed Orders. Today, the father indicated to me that he agreed to the court making those proposed orders. In summary, the ICL proposed that the father have permission to authorise Child A being administered the second and third doses of the Pfizer or Moderna COVID-19 vaccines, subject to the following conditions. Firstly, Child A undergoes an echocardiogram. Secondly, if the echocardiogram indicates further cardiac input is required, then Child A undergo a cardiac review, with such review to include an opinion about whether Child A would be at increased risk of adverse side effects should she receive the second and third doses. Thirdly, if the echocardiogram does not indicate that further cardiac input is required, that Child A’s GP be satisfied that: firstly, Child A’s heart murmur does not preclude her receiving the second and third doses of a COVID‑19 vaccine; secondly that Child A’s pre-existing health conditions do not place her at increased risk of adverse side effects from the vaccine; thirdly that Child A be reviewed by her GP prior to the administration of the third dose to consider any adverse side effects experienced after being administered the second dose; and that fourthly, Child A maintain her wish to be fully vaccinated against COVID-19.

4I observe in this point that paragraph 3(c)(i) of the orders that I have just indicated are, in fact, an amended order as proposed by the ICL after a discussion with me during the hearing. The ICL also proposed orders requiring the father to keep the mother, and the ICL notified in relation to the administration of the second and third doses, together with any serious side effects experienced by Child A, and for the ICL to be able to provide copies of relevant documents to Child A’s GP.

5In preparation for this hearing, I have reviewed the court file, including all the documents accepted for filing by the parties since February 2020. For the purposes of the hearing, the following further specific documents were referred to me and/or were in evidence before me:

(a) An email from the mother to the father and the ICL, dated 28 November 2021.

(b) An email from the father to the ICL and the mother, dated 1 December 2021.

(c) A report from [Dr A], a consultant paediatrician, dated 20 March 2015, following his review of Child A when she was approximately eight and a half years old.

(d)Three letters from Child A’s current general medical practitioner, [Dr B], dated 2 December, 8 December and 13 December 2021.

(e) Child A’s immunisation history as at 15 February 2021.

(f) Two reports prepared by [the Family Consultant] following conferences conducted by him in late May 2021 and on 11 January 2022.

(g) An affidavit of the ICL filed on 12 January 2022.

(h) A report prepared by [Dr C], dated 13 January 2022.

6The father and the mother were both given leave by the court to file documents in relation to their respective positions. At the end of the day, neither party filed documents and/or [their] documents were not accepted for filing.

7During her submissions, the mother purported to make a number of submissions in relation to scientific evidence in relation to COVID‑19 and vaccinations, in relation to Child A’s asserted current medical conditions and the mother’s scepticism in relation to the evidence, particularly from Dr B. This was in the context that the mother conceded that she was not an expert herself in relation to medical matters, COVID‑19 or vaccination issues, and accordingly is not qualified to proffer any opinion evidence in relation to the matter.

8For the purposes of this decision, I have proceeded on the basis of the expert evidence that is before the court, and in particular the reports of Dr A, Dr B and Dr C. I do not intend to refer to all the evidence because it is not practical or necessary for me to do so. Where I do not refer to part of the evidence, it should not be assumed that I have ignored it or that I have overlooked it.

9The ICL filed written submissions on 17 January 2022. The mother, the father (who appeared by telephone from [Town A]) and the ICL were all given and took the opportunity to make further oral submissions to me this morning.

10In terms of the background facts, the father was born in [1970]. He lives in Town A with Child A. Aside from Child A, the father has three adult children of a prior relationship. The mother was born in [1978]. She lives in Perth. Aside from Child A, she has no other children. The parties commenced living together in 2006 and separated on a final basis in 2009. They never married.

11After the parties’ separation, the father commenced parenting proceedings. On 25 January 2010, the court made final parenting orders, including that the parties have equal shared parental responsibility for Child A, Child A live with the mother and have regular time and communications with the father.

12In 2015, while she was still living in [a regional area], Child A was reviewed by Dr A. The salient parts of the report were as follows:

(a)The major concerns for Child A at that time were [Medical Condition B]; morbid obesity above the 95th percentile for the child’s age, with raised blood pressure; evidence of [a skin condition], mostly on the upper arms; a strong family history of [Medical Condition C]; and [joint problems] with evidence of [Medical Condition D].

(b)There were no major concerns reported as Child A was growing up in regards to her growth or development. She was immunised for her age, and there were no major concerns in relation to allergies to medications or food items.

(c)Child A was examined by Dr A. Her cardiovascular, respiratory and abdominal system examination was normal.

(d)Further treatment was recommended for Child A, including in relation to her morbid obesity.

13I observe that Dr A’s report did not refer to Child A having an existing heart condition, including a heart murmur. Child A’s immunisation record confirmed that she had received all of her usual childhood vaccinations (and as at February 2021, she was up to date with her immunisations).

14Child A lived with the mother initially in [a regional area], and then later in Perth, until approximately 8 February 2021, when Child A commenced living with the father in Town A. The parties are in dispute as to the circumstances of that move. From February 2021 onwards, the mother filed a number of Form 2 applications seeking recovery orders for Child A to be returned to her care. I concur with the ICL’s submission that the mother holds strong views about the father, including that he poses an unacceptable risk to Child A, such views being clearly evident from the documents the mother has filed to date, and from her comments, inter alia, to the Family Consultant at the conference held in May 2021.

15Given her age, Child A was also afforded the opportunity to participate in the conference with the Family Consultant. The Family Consultant opined in his report that considerable weight should be given to Child A’s views. In particular, the consultant reported that Child A presented her views in a clear and articulate manner and, in his view, were commensurate with her chronological age. She was firm in her views, not wavering, and the Family Consultant considered that she verbalised her opinions in a balanced manner.

16The Family Consultant reported that Child A made it clear to him that:

(a)There were various incidents between her and the mother in the previous months leading up to February 2021 that influenced her decision to move to Town A to live with her father, including the mother kicking her out of the home, damaging her phone, grabbing her by the throat and chin, not listening to her, and verbally abusing her. Child A was very resistant about the prospect of returning to the mother’s care and refused to do so.

(b)Child A did not raise any concerns about being in her father’s care. Rather, she felt happier and safer in her father’s care in Town A than in Perth with her mother.

17I also concur with the ICL’s submission that the mother does not accept that Child A’s views are her own, and the mother continues to seek that Child A be returned to her care in Perth. The mother’s position in this regard is also clearly evident from the documents filed by her.

18An interim hearing in relation to Child A’s care arrangements was held by the court on 17 and 23 June 2021. On 25 June 2021, the court delivered judgment and made orders that all previous parenting orders in relation to Child A be suspended. The court found that it was in Child A’s best interests to continue to reside with her father in Town A.

19The court made interim orders, including that Child A live with the father, and subject to her wishes spend time with and communicate with the mother at specified times; and that the father ensure that Child A regularly attend upon a GP for the purposes of managing and monitoring her thyroid condition, and [Medical Condition B].

20On 8 August 2021, the father filed a Form 1 application, effectively seeking final orders in terms of the June 2021 interim orders. On 19 August 2021, the mother filed a Form 1A response seeking inter alia sole parental responsibility for Child A, and for Child A to return to live with her.

21On 27 August 2021, the Australian Technical Advisory Group on Immunisation (“ATAGI”) published its recommendations on the issue of COVID-19 vaccines for all young adolescents in Australia. In summary, it recommended firstly vaccination against COVID-19 for all individuals from 12 years of age, and secondly, a two-dose schedule using Comirnaty, otherwise known as Pfizer, or Spikevax, otherwise known as Moderna. I observe in passing that since this time, ATAGI has also recommended offering a paediatric COVID-19 vaccine to Australian children aged between five and 11 years. In reaching its recommendations in relation to the 12 to 15-year age group, ATAGI considered the relevant benefits, risks, uncertainties and evidence on the following:

(a)The safety, efficacy and effectiveness of COVID-19 vaccines in adolescents, from clinical trials and overseas vaccination programs.

(b)Epidemiology of COVID-19 in adolescents, including disease severity and complications and their role in transmission in the population.

(c)The safety of COVID-19 vaccines, including risk of myocarditis and pericarditis after receiving mRNA vaccines in adolescents and young adults reported overseas.

(d)Programmatic implications and the potential delivery strategies to extend vaccination to the young adolescent age group.

(e)Mathematical modelling related to population level impact on vaccinating this group.

(f)Evidence of potential acceptance of vaccination in the age group.

22In assessing the direct benefits of vaccinating adolescents against the virus, ATAGI concluded that there is high-level evidence indicating strong immunogenicity and vaccine efficacy against symptomatic COVID-19 in adolescents from clinical trials of Pfizer and Moderna. Vaccinating adolescents is anticipated to prevent infections, hospitalisations and deaths due to COVID-19 and other complications such as paediatric multisystem inflammatory syndrome temporarily associated with SARS-CoV-2 and long COVID. ATAGI concluded that there were also other benefits, including reducing disruption to their education by preventing disease and reducing potential transmission and outbreaks in schools. Prolonged absence from face-to-face learning in school can have considerable psychosocial and educational impacts on children. Vaccinating adolescents would also likely result in less disruption to sports, other organised activities and socialising that are key to adolescent physical and mental wellbeing.

23In assessing the risks related to vaccine adverse events, ATAGI concluded that the data from clinical trials and safety surveillance overseas affirmed an overall good safety profile in the adolescent age group, being similar to that in adults. Myocarditis and pericarditis had been reported in temporal association following vaccination with Pfizer and Moderna, with the risk appearing highest in young people, more common in males and following the second dose. The vast majority of these cases have been mild, and patients recovered quickly with supportive care.

24ATAGI concluded that the benefits in offering COVID-19 vaccination to all younger adolescents aged 12 to 15 years outweigh the known or potential risks.

25On 18 November 2021, Child A received the first dose of the Pfizer vaccine. There was no evidence before me to suggest that Child A suffered any acute symptomology following that first dose.

26The mother and the ICL were unaware of Child A receiving her first dose until late November 2021. I concur with the ICL that the father should have consulted the mother prior to Child A receiving her first dose. However, I also observe that no orders were made by the court in relation to parental responsibility on 25 June 2021. Given the suspension of the 2010 order for equal shared parental responsibility, each parent had parental responsibility under the Act, and accordingly, there was no requirement for the father to seek the mother’s prior consent before Child A received her COVID vaccination.

27On 28 November 2021, the mother emailed the father and the ICL. The salient parts of the email were as follows:

My daughter [Child A] has an existing heart condition and should have been exempt from having the COVID vaccine…

I found out today [Child A] had had the COVID vaccine, and I will hold you both accountable in the event my daughter [Child A] has any adverse reactions.

28Prior to the hearing today, the mother did not provide the court with any medical report confirming that Child A had an existing heart condition as at November 2021. At the hearing today, I asked the mother about Child A’s medical conditions since she saw Dr A in March 2015. The mother advised the court and the other parties that in 2016, Child A was diagnosed with a thyroid condition. I note that the ICL and the parties are well aware of this, and Dr B also refers to Child A’s thyroid condition and the treatment that she is receiving in his reports, and in particular, his report dated 13 December 2021.

29In addition, the mother also advised that she became aware in 2015 or 2016 that Child A had a heart murmur and that Child A was diagnosed with this condition by a doctor whilst she was still in Town A.

30I observed that in her email of 28 November 2021, the mother also accused the father and the ICL of medical negligence and child abuse. It would also be fair to say that in the email, she also expressed in clear terms her scepticism regarding the efficacy of the vaccine and the lawfulness of the approach of the West Australian Government mandating vaccinations in certain circumstances.

31On 1 December 2021, the father emailed the ICL, copying in the mother, in response. The salient parts of the email were as follows:

(a)The father advised that both he and Child A were until then unaware that Child A had ever been diagnosed with a heart murmur.

(b)The father advised that Child A’s GP, Dr B, had conducted a review of the medical records held by him in Town A, and he had been unable to find any reference to Child A having previously been diagnosed with a heart murmur. The father subsequently produced a letter from Dr B dated 2 December 2021, confirming that he held no documentation in relation to Child A having a heart murmur, but confirming in any event that a murmur is not listed as a reason for a COVID‑19 vaccine exemption, based on the current exemption criteria set by ATAGI.

(c)The father set out a brief history of the circumstances that led to Child A receiving her first dose, including that Child A had discussed the issue of being vaccinated against COVID-19 with him and with her GP before proceeding, and that she wished to have the vaccine.

32On 8 December 2021, Dr B wrote to the ICL in response to her request for some further information. The salient parts of Dr B’s report were as follows:

(a)Child A would be at no increased risk of any adverse events from receiving the second dose of the Pfizer vaccine in comparison with her peers. If Child A did have a heart murmur, it would not constitute an indication for exemption as per the ATAGI guidelines on COVID-19 vaccination.

(b)Dr B referred to ATAGI issuing a statement on 2 August 2021 regarding vaccination for adolescents aged 12 to 15 years, and in which he quoted that a phase II - III trial of Comirnaty, ie, Pfizer, which included 2260 adolescents aged 12 to 15 years, found the vaccine efficacy against symptomatic COVID-19 in this age cohort of 100 per cent from seven days after the second dose in participants, with or without evidence of previous infection.

(c)Dr B did not believe Child A would be adversely impacted if the second dose was delayed.

33Subsequently, Dr B did a cardiovascular assessment of Child A and confirmed that Child A did have a “very quiet (grade 1) murmur in the aortic region”. He recommended that she undergo an ECHO (as he referred to it), to further assess this. He confirmed this assessment in his letter of 13 December 2021, and as already identified in his report, he also confirmed Child A’s history of a thyroid condition, amongst other things, and the treatment that she was receiving.

34On 11 January 2022, Child A participated in an MS Teams interview with the Family Consultant]. The salient parts of the Family Consultant’s report are as follows:

(a)The main purpose of the interview was to obtain Child A’s views in respect to the administration of the vaccine.

(b)Child A reported that it was really good living in Town A and that she enjoyed her part-time employment at [a fast food restaurant].

(c)Child A reported that the mother called her at random times, but the conversations always ended up in an argument. Child A reported that she has told her mother that she wants to remain living in Town A, but her mother denigrates the father and the paternal family during calls, demands that Child A listens to her, that she will be returning to Perth to live with the mother, and that the mother is going to put her father and Child A’s older sister in jail. Child A reported that she did not want to listen to that kind of talk and has hung up on the mother.

(d)Child A reported that she took two or three months to make sure she really wanted to have the COVID‑19 vaccination. She was unsure at first, but when she saw her friends and work colleagues having the vaccination and when she read the information provided by her school about the COVID virus, it helped to form her view that she should also have it.

(e)Child A also reported that she went to see her doctor, who explained the COVID-19 vaccine prevents individuals from becoming very ill, but that it was not a 100 per cent guarantee that one would not get it. If she had the vaccine, it would not give her complete immunity but would lessen the effects of the disease. Her doctor also told her that her minor heart murmur would not affect her ability to receive the vaccine.

(f)Child A reported that her mother had told her not to have the vaccine, as it was just an experiment.

(g)Child A stated the reasons she wanted to have the vaccine was that: firstly, she wanted to be in the community; secondly, the vaccination would help to not spread the virus; thirdly, having the vaccination would allow her to keep her employment at a fast food restaurant’s; fourthly, having the vaccination will prevent her from becoming really sick if she does contract the virus; fifthly, everyone at school was having the vaccine, and she did not want to be singled out or different from her peers; sixthly, it would enable her to go on holidays; and finally, she would be able to keep living her life the way she is now.

(h)Child A stated that she understood the possible disadvantages of being vaccinated were relating to heart issues and potential blood clots. Whilst acknowledging the negatives, she considered that they were outweighed by the benefits to her in having the vaccine.

(i)Child A wanted the court to know that she should get her COVID-19 vaccine and that she wanted her mum to stop talking bad about her dad and her family.

(j)The Family Consultant opined that Child A clearly articulated the advantages and disadvantages of being vaccinated and showed maturity commensurate with her chronological age.

35On 13 January 2022, Dr C provided a report to the ICL following the ICL’s request. During the hearing, the ICL provided a copy of Dr C’s resume to the court. Dr C holds a Bachelor of Medicine and a Bachelor of Surgery, a Masters in Public Health, a Diploma in Occupational Health and Safety, and is a fellow of the Australasian Faculty of Occupational and Environmental Medicine.

36The salient parts of Dr C’s report were as follows:

(a)In preparing her report, Dr C considered the information provided to her by the ICL, the three letters from Dr B and the report from Dr A dated 20 March 2015.

(b)Dr C reported that ATAGIs expanded guidance on acute major medical conditions that warrant temporary medical exemption relevant to COVID-19 vaccines stated that “COVID-19 vaccines have been demonstrated to be safe and effective, and as such are recommended for all Australians from 12 years of age. There are very few situations where a vaccine is contraindicated”. Dr C confirmed that she was not aware of any overwhelming body of credible scientific evidence that contradicts ATAGIs guidance.

(c)In relation to Child A, relevant valid reasons provided by ATAGI for a temporary exemption include, for an mRNA COVID-19 vaccine - inflammatory cardiac illness within the past three months, such as myocarditis or pericarditis, acute rheumatic fever or acute rheumatic disease, or acute decompensated heart failure, being any serious event attributed to a previous dose of the COVID-19 vaccine.

(d)Dr C opined that if Child A’s heart murmur pre‑dated her first Pfizer vaccine and there was no acute symptomology following her first dose, then Child A is highly likely not to be at any significant increased risk of cardiac issues with the second vaccine. However, if the heart murmur is a new murmur following the first dose, then it is best that the second dose be deferred, pending the results of the echocardiogram and a cardiology review, if there are any significant concerns. I pause at this point to note that it is certainly the mother’s position that Child A’s heart murmur does pre-date her first Pfizer vaccine, and that the mother’s position is Child A was diagnosed with the heart murmur in 2015 or 2016.

(e)When Dr C was asked about the efficacy of the Pfizer vaccine for younger people aged 12 to 16, Dr C confirmed that she agrees with ATAGIs conclusion that COVID-19 vaccines have been demonstrated to be safe and effective, and as such are recommended for all Australians from 12 years of age.

(f)Dr C opined that the main adverse impacts to Child A, of delaying the second dose was in the context of community transmission, in that Child A may contract the virus and develop acute and medium or long‑term risk of illness, and noted that in 2021, approximately three per cent of Australian children who tested positive for the virus were hospitalised.

(g)Dr C also pointed to a recent USA study of children aged 12 to 17, which reported that approximately two thirds of the children who were hospitalised for acute COVID-19 in the study, suffered from obesity and only 0.4 per cent of age eligible patients have been fully vaccinated.

(h)Dr C concluded her report as follows:

In my opinion, as soon as it can be confirmed with her doctor, that she has not suffered a new cardiac concern, then she is best fully vaccinated, including all going well after a second shot with three doses or provide protection from being unwell in acute and in long-term, decreased risk of transmission in the community, allow access to venues if governments place restrictions on unvaccinated and allow greater scope for job options in the setting of mandates. The benefits of vaccination for her personally and society, far outweigh any possible risk of the vaccine.

37In terms of the applicable law, the application is made pursuant to Part 5 of the Family Court Act 1997 (WA). The court has the power to order a child to be vaccinated. The court’s jurisdiction is not dependent upon whether the parties consent to the child being vaccinated. In this regard, see section 89 of the Act and the decision of Covington & Covington (2021) FLC 94-014 at paragraphs 42 and 43.

38In deciding whether to make a particular parenting order, section 66A directs me to regard the best interests of the child as the paramount consideration. Section 66C sets out how I determine what is in a child’s best interests.

39This decision is confined to the narrow issue of whether Child A should receive her full COVID-19 immunisation. I am satisfied that it is not necessary to consider the matters set out in section 89AA of the Act. I will consider only those primary and additional considerations which are relevant to the narrow issues in this case. If I have not referred to a consideration, it is because I take the view that it is simply not relevant to this decision.

40In relation to the issue of whether the court can take judicial notice of the fact that the best interests of children are served by being immunised, the ICL, in her written submissions, referred me to the Full Court decision in McGregor v McGregor (2012) FLC 93-507, in which the court considered the concept of judicial notice and section 144 of the Evidence Act 1995 (Cth), being the Commonwealth Act. The Full Court cited several examples, including the administration of vaccines and said:

The conflict of expert opinion evidence in relation to the benefits and risks of immunisation preclude any prospect of the court taking “judicial notice” under section 144 of the Evidence Act. If an issue in proceedings is controversial, it is almost inevitable that there will be differing credible expert opinions in relation to it, and demonstrably, it would not fall within the operation of section 144.

41Of course, in Western Australia, the applicable legislation is the Evidence Act 1906 (WA) and not the Commonwealth Evidence Act. There is no equivalent provision to section 144 in the Western Australian Evidence Act, although there are some provisions in relation to the court taking judicial notice of certain things. The common law otherwise operates in Western Australia. In Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, the High Court considered the doctrine of juridical notice at paragraph 64 onwards, and in summary, described the doctrine as follows.

A court may judicially notice a fact whenever it “is so generally known that every ordinary person may be reasonably presumed to be aware of it”.

42Having regard to the High Court’s discussion, I accept the ICL’s submission that while it is not always possible, it is preferable for the court to have credible expert evidence about the disease, the vaccine and the child, or children, in question and that the court should not rely on information provided by peak scientific organisations unless that information is properly before the court, for example, through an expert witness.

43I do take judicial notice of the facts that firstly, there has been a significant increase in COVID-19 case numbers, hospitalisations, ICU admissions and deaths, reported by other state governments in Australia since the opening of their respective borders, and relaxation of public health measures in late 2021 and early 2022. Secondly, the WA government has announced its intention to open the WA border on 5 February 2022. The WA government has also announced the introduction of various public health measures, including mandating vaccination for certain industries and putting in place certain restrictions on the unvaccinated population, including, for example, entry into restaurants and cafes.

44Turning now to my discussion and conclusions of the relevant considerations. To the extent that the mother raised the issue in her email of 28 November 2021, albeit, she did not raise the issue during her oral submissions today, the mother did maintain that the father’s actions in permitting Child A to receive her first vaccination, amounted to medical neglect and child abuse. The mother’s position appeared to be primarily based on her own beliefs about the efficacy of the COVID‑19 vaccines and her beliefs surrounding Child A’s medical condition. In my view, there was no cogent expert evidence before the court from which I could conclude that the mother’s assertions had any basis or foundation.

45The mother objected to Child A receiving the vaccinations because, in effect, she maintained scepticism about their safety and efficacy. She also raised concerns about the possibility of Child A having an adverse reaction to the vaccines because of her pre-existing medical conditions. As I have earlier observed, the mother did not lead any cogent expert evidence in support of her contentions, which are in contradiction of the evidence of Dr B and Dr C in particular.

46On the other hand, on the available expert evidence, I accept:

(a)Firstly, Dr C’s evidence that she agrees with ATAGI that COVID-19 vaccinations have been demonstrated to be safe and effective and are recommended for all Australians from 12 years of age. Dr C was not aware of any overwhelming body of credible scientific evidence that contradicts ATAGI’s evidence.

(b)Secondly, Dr B’s evidence that leaving aside the issue of the heart murmur, Child A’s medical conditions do not preclude her from receiving the Pfizer COVID-19 vaccine. Having now confirmed that Child A does have a very quiet, grade 1 heart murmur, Dr B has referred Child A for an echocardiogram.

(c)Thirdly, Dr C’s evidence that if Child A’s heart murmur predates her receiving the first dose and she had no acute symptomology following the first dose, then she is highly likely not to be at any significant increased risk of cardiac issues, should she receive the second dose. Again, I interpose at this point to again record that the mother’s firm position is that Child A was, in fact, diagnosed with a heart murmur in 2015 or 2016, and that accordingly, her heart murmur does predate her receiving the first dose in November 2021.

(d)Fourthly, I accept Dr C’s evidence that Child A should have the echocardiogram as ordered by Dr B, and if it raises any significant concern, then Child A should have a cardiac review prior to receiving her second dose.

(e)Finally, I accept Dr C’s evidence that if Child A’s GP confirms that Child A has not suffered a new cardiac concern, that is in response to receiving the first dose of the vaccine, then Child A should proceed with the second and third doses so that she is fully vaccinated.

47In terms of Child A’s views, I accept the ICL’s submission that Child A wants to be fully vaccinated against COVID-19 and that her views on this issue are a relevant consideration. It was clear from the Family Consultant’s second report that Child A had carefully considered the benefits and risks of receiving the COVID-19 vaccine over a period of two to three months before deciding that she wished to be vaccinated. Child A explained to the Family Consultant the various benefits she would gain from being vaccinated, including protecting herself from getting sick if she contracted the virus, the requirements of her employer and the desire not to have social and public restrictions placed upon her if she remained unvaccinated. She was also able to articulate the potential risks as they related to her. Child A is now 15 years of age. The Family Consultant had the opportunity to have a discussion with Child A twice: the first time by telephone and the second time by MS Teams. He concluded that she presented as a mature and considered young woman and that considerable weight should be placed in her views.

48There was no evidence to suggest that Child A’s views had been unduly influenced by any person. Rather, it appears that her views were shaped by her own observations and inquiries, together with information provided to her [by her] school and by her treating GP. Having regard to Child A’s age, her stage of development and the level of maturity she has demonstrated in reaching the view that she wishes to be fully vaccinated against COVID-19, I am satisfied that Child A’s view should be given significant weight in my determination.

49In terms of any other fact or circumstance which I consider relevant, there are three further matters which I wish to discuss. Firstly, I agree with the ICL’s submission that the father facilitated Child A being able to meet with Dr B to discuss the benefits and risks of receiving the COVID-19 vaccines. I also agree with the ICL’s submission that Child A and the father should and can be relied upon to take advice from Dr B about Child A proceeding with the second and third doses after the results of the echocardiogram are received, and if required, any further cardiac investigations take place. Secondly, I agree with the ICL’s submissions that this is now a time sensitive issue, given the risk to Child A will increase once the WA border opens. Thirdly, I agree with the ICL’s submission that aside from medical considerations specific to Child A, the broader social and other impacts on Child A of not being vaccinated are also relevant considerations, and these include, but are not limited to the fact that Child A enjoys working at a fast food restaurant, and that her employer requires her to be vaccinated to continue in her employment.

50Turning to my conclusions in this matter, I consider it is not appropriate to apply the presumption of equal shared parental responsibility in these interim proceedings for the following reason: equal shared parental responsibility requires parties to consult with each other and jointly make decisions about long-term issues concerning Child A. In this case, I am satisfied that is not possible, given the mother’s attitude to the father, their resultant communication difficulties and in particular, their polarised views in relation to Child A’s ongoing parenting arrangements and her vaccination status. Accordingly, I am required to make such order as in Child A’s best interests.

51On balancing the various considerations, I consider that it is in Child A’s best interests and reasonably practicable to make the orders proposed by the ICL and as slightly amended by her after discussion with me during the hearing today, and for the reasons I have earlier identified.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV

Associate

1 FEBRUARY 2022

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