Cranston & Persson (No 2)

Case [2022] FedCFamC1F 187

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cranston & Persson (No 2) [2022] FedCFamC1F 187

File number(s): BRC 1210 of 2022
Judgment of: MCCLELLAND DCJ
Date of judgment: 25 March 2022
Catchwords: FAMILY LAW – PARENTING – Medical procedures – COVID-19 vaccinations – Where father seeks that neither parent be permitted to cause the children to be vaccinated against the COVID-19 virus without written consent of the other party – Where the children have received the first dose – Whether the mother should be given sole parental responsibility with respect to having the children vaccinated against the COVID-19 virus – Children attend school – Public health advice classifying schools as ‘high risk settings’ for transmission of the virus – No contraindications for the children receiving the vaccination – Father’s failure to adduce further evidence – Order for mother to have sole parental responsibility for discrete issue of children receiving COVID-19 vaccinations.
Legislation:

Family Law Act 1975 (Cth) ss 43, 60CA, 60CC, 64B, 65DAE, 67ZC, 69ZT

Evidence Act 1995 (Cth) ss 48(1)(f)(ii), 58, 144, 183

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.22, 7.23(c)

Cases cited:

A.C. v. L.L 2021 ONSC 6530

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWC 6309

Cox v DP World Brisbane Limited [2021] FCA 1335

Dyquiangco Jr. v. Tipay 2022 ONSC 1441

L.M. v. C.O 2022 ONSC 394

Lamos & Radin (No 2) [2022] FedCFamC2F 167

Division: Division 1 First Instance
Number of paragraphs: 69
Date of hearing: 15 March 2022
Place: Sydney (via videolink)
The Applicant: Self-represented litigant
The Respondent: Self-represented litigant

ORDERS

BRC 1210 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR CRANSTON

Applicant
AND:

MS PERSSON

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

25 MARCH 2022

THE COURT ORDERS THAT:

1.The mother has sole parental responsibility with respect to the specific issue of the children X, born in 2011, and Y, born in 2013, receiving any vaccinations against the COVID-19 virus.

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 Cranston & Persson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MCCLELLAND DCJ:

INTRODUCTION

  1. This judgment…

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Cranston & Persson (No 2) [2022] FedCFamC1F 187
Case
[2022] FedCFamC1F 187
Decision Date

CaseChat Overview and Summary

The matter of Cranston & Persson (No 2) involved a dispute between the father and mother of two children regarding the decision to vaccinate the children against COVID-19. The case was heard in the Family Court of Australia. The central issue in the case was whether the mother should be granted sole parental responsibility for making decisions about the children's health, specifically regarding COVID-19 vaccinations.

The court examined the legal framework under which parental decisions about children's health are made. It considered the importance of the children's best interests, the roles and responsibilities of each parent, and the need for a balanced approach to decision-making. The court also evaluated the evidence provided by both parents and the public health advice available from government sources.

In reaching its decision, the court highlighted the importance of adhering to public health advice from reputable sources, such as the Australian and Queensland governments, which indicated that the benefits of vaccination significantly outweighed the risks. The court noted that the mother had provided detailed and authoritative evidence supporting the vaccination of the children, while the father had not presented any comparable evidence to counter this. The court also considered the father's expressed scepticism towards government health advice, which influenced its decision.

The court ultimately decided to allocate sole parental responsibility to the mother regarding the decision on whether the children should receive further COVID-19 vaccinations. This decision was based on the mother's demonstrated ability to consider relevant public health advice and make decisions in the children's best interests. The court ordered that the mother could proceed with vaccinating the children, subject to their general practitioner's advice, in line with current public health recommendations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For reasons which I explain, I have decided to dismiss the father’s application. BACKGROUND The father has not filed any evidence in respect to these proceedings save for an affidavit filed with his initiating application on 8 February 2022. Accordingly, the following background summary is provided on the basis of agreed evidence in so far as the father’s single affidavit is concerned and the remaining uncontested evidentiary material presented by the mother. The parties commenced their relationship in March 2009 and were married in 2010. After approximately seven years together, the parties separated on a final basis on either 8 January 2017 on the mother’s account or around January 2016 according to the father. The difference between the parties’ contentions in respect to this issue has not impacted my decision in this matter. The parties’ relationship in the period subsequent to their separation has been volatile, with the mother or the police on her behalf applying for several protection orders. They are, in reverse chronological order:·In December 2021, a Temporary Protection Order was issued against the father naming the mother as the aggrieved person and the children as protected persons.·In March 2021, a Protection Order was issued against the father naming the mother as the aggrieved person and the children as protected persons.·In October 2020, a Temporary Protection Order was issued naming the mother as the aggrieved person and the children as protected persons.·In early October 2020, a Temporary Protection Order was issued against the father naming the mother as the aggrieved person and the children as protected persons.·In early October 2020, a Police Protection Notice was issued against the father pending the matter being listed before the Magistrates Court of Queensland.·In October 2019, a Domestic and Family Violence Protection Order was issued against the father naming the mother as the aggrieved person. The mother attests that there is a current application for a Domestic Violence Order which is listed for hearing in May 2022 with a mention listed in early May 2022. I have not had regard to the mother’s allegations that the father has engaged in acts of family violence against her, other than to the extent that the history where the aforementioned steps have been taken indicates the existence of volatility in the parties’ relationship. In that context, it is clearly desirable for this dispute between the parties regarding the question of the children’s vaccinations to be resolved as soon as possible, lest it also becomes an additional and ongoing focus of disputation between them. The mother and the children have lived and continue to live in Queensland. The children also attend school in Queensland. The mother’s unchallenged evidence is that she has been the children’s primary caregiver for the last five years and that she has made decisions regarding their health and well-being. On 21 August 2021, the father sent the mother a text message in which he said:Im [sic] sure you will be happy to know that I am arranging to sign away my parental rights, you can then do whatever you want and be happy in the fact that I've been cut out of their lives, so you win. Regardless of all that has transpired you know that I have so much love tor the girls, I hope one day that you will remember that.(As per the original)

Evidence

Evidence Before The Court

Also on 25 February 2022, Dr B provided a report in respect to Y, which read as follows:Ms Persson, mother of Y has approached me today to discuss the topic of COVID 19 vaccination in children.We discussed in general the risk and benefits of getting the COVID 19 vaccination in children as well as the risk and benefits of not getting the COVID 19 vaccination.Y is a regular patient of mine who has no significant diagnosed medical condition and is not taking any medications. She are no obvious medical contraindications to the COVID 19 vaccination. Y has currently had her first dose of COVIO 19 vaccination which was done at a different provider. (As per the original)EVIDENCE The father relies on his affidavit filed 8 February 2022. The mother relies on the following documents:·Response to Final Orders filed 9 February 2022 ·Notice of Risk filed 13 February 2022 ·Affidavit of the mother filed 9 February 2022 ·Affidavit of the mother filed 3 March 2022 ·Affidavit of the mother filed 8 March 2022 Despite the father requesting an adjournment for the purpose of having an opportunity to file affidavits in support of his opposition to the children being vaccinated, which was granted, the father has failed to file any further material. It is noted that the leave extended to the father also included, if he so desired, the ability to call evidence from an appropriately qualified expert by way of an adversarial report. The father has not done so. Significantly, the mother has attached to her affidavit, in addition to the medical certificates of Dr B, the following documents downloaded by the mother from relevant government websites on the internet: Attachments to the mother’s affidavit filed on 9 February 2022·“COVID-19 vaccine information for children, teens and parents/guardians” issued by the Australian Government, last updated 10 December 2021.·“COVID-19 vaccination information: Parent/legal guardian information on Pfizer (Comirnaty) for children aged 5–11 years (SWPI9475)”, issued by the Queensland Government.·“COVID-19 vaccine effectiveness” webpage, published by the Queensland Government.·“Vaccine development, testing and safety – COVID-19” webpage, published by the Queensland Government, last updated 7 September 2021.Attachments to the mother’s affidavit filed on 3 March 2022·“COVID-19 vaccination information: Parent/legal guardian information on Pfizer (Comirnaty) for children aged 5–11 years (SWPI9475)”, issued by the Queensland Government.·“COVID-19 vaccine effectiveness” webpage, published by the Queensland Government. This webpage has been updated with further information in comparison to the earlier version of the same webpage that was included in the mother's previous affidavit.·“Vaccine development, testing and safety – COVID-19” webpage, published by the Queensland Government. This webpage has also been updated with further information in comparison to the earlier version of the same webpage that was included in the mother's previous affidavit.·Bundle of material sent by the father to the mother justifying his opposition to the children being vaccinated, as a result of what he contends are associated risks (Annexure “-03”).Attachments to the mother’s affidavit filed on 8 March 2022·“Pfizer COVID-19 vaccine for children aged 5 to 11: information for parents and guardians” version 2, issued by the Australian Government, last updated 25 February 2022, downloaded from website address health.gov.au/covid19-vaccines.·“COVID-19 and children: Frequently asked questions on the disease, vaccines and schooling” Dr A Koirala et al; published by the National Centre for Immunisation Research and Surveillance (“NCIRS”). The mother attests to having downloaded this material from the internet shortly prior to filing her affidavit on 8 March 2022.·“Evaluation of the BNT162b2 Covid-19 Vaccine in Children 5 to 11 years of age” E B Walter et al (2022) New England Journal Of Medicine 386, 35. This material is referenced at footnote 26 of the paper prepared by the NCIRS, listed immediately above.

Decision

Reasons for decision

In terms of the issue of balancing benefit against risk, having regard to the public health information attached to the mother’s affidavit, I respectfully agree with and adopt the conclusion of Hughes J as set out at [13] of Lamos that:There is no doubt on this evidence that the COVID-19 vaccines carry with them a risk of harm to the recipient. However, the information provided by these reputable Australian organisations indicates that, as a general proposition, the risks are significantly outweighed by the benefits.CONCLUSION AND ORDER For all of the above reasons, I am satisfied that the mother should be allocated sole parental responsibility in respect to the decision as to whether or not the children receive a second COVID-19 vaccination and, potentially, supplementary doses depending upon public health advice and/or the advice given by the children’s general practitioner. In making those orders, I note that there are some potential risks associated with children being administered with those vaccinations. However, in circumstances where the subject children’s general practitioner has expressed the opinion that the children do not have any particular vulnerabilities that would make them susceptible to adverse effects from the vaccinations and, further, where the children have already had one vaccination without such adverse effects, I am satisfied that the risks to the children of suffering adverse effects from the COVID-19 vaccine are minimal and, moreover, that the benefit to the children of being vaccinated substantially exceeds that minimal risk. This is in the context where, as noted, the children attend a state school and the Queensland government has declared schools to be a high risk setting for the transmission of the virus. Accordingly, I am satisfied that it is in the best interests of the children for an order to be made in the terms sought by the mother and as set out at the commencement of these reasons for judgment.

Ratio Decidendi

Legal Principle Established

For reasons which I discuss, I infer that the documents have been prepared by, and set out the advice from, persons who are appropriately qualified to provide that advice to the government, and through government, to the people of Australia.CONSIDERATION In this matter, no order has been made in respect to parental responsibility. In those circumstances, s 65DAE of the Act requires the parties to consult on the major, long-term issues in dispute. It was not disputed that the question as to whether or not the children should receive a COVID-19 vaccination is a decision involving a major long-term issue impacting upon the children. In circumstances where the parties have consulted and are unable to resolve the matter, it is necessary for the Court to do so, either by:·Making an order requiring one or other of the parents to vaccinate the children;·Making an order prohibiting the mother from arranging for the children to be vaccinated;·Giving parental responsibility to one or other parent in respect to the question as to whether the children should or should not receive the COVID-19 vaccination. In this matter, I have decided to adopt the third course. That is, to permit the mother to make the decision as to whether the children should receive a second and, possibly, subsequent COVID-19 vaccinations. I have done so because I am satisfied that she is better equipped to make a decision that is in the children’s best interests. In that respect, the mother has indicated a preparedness to have regard to relevant government public health advice which, pursuant to s 183 of the Evidence Act, I infer has been prepared on the basis of the advice of persons who are appropriately qualified to provide that advice. In drawing that inference, I have had regard to the following:·The similarity between the advice provided by both the Commonwealth and the Queensland governments.·The similarity between that advice and the advice provided by other governments that are also dealing with the international COVID-19 pandemic: see for instance A.C. v. L.L 2021 ONSC 6530 and L.M. v. C.O 2022 ONSC 394.·The fact that the advice published by the NCIRS has been published by persons whose qualifications are identified in their titles and who have been identified as being staff at the NCIRS and staff employed by the SCHN who, it can reasonably be inferred, are experts in either or both public health and matters concerning the health of children. Comparatively, despite being provided with the opportunity, including through adjournment, the father has not filed any further evidence in these proceedings. To the extent that the mother has identified documentation relied upon by the father in his communications with her that express his reasons for objecting to the children being vaccinated at this point in time, that documentation is not similarly sourced from authoritative government websites. Further, during the course of the proceedings, the father indicated an unwillingness to accept not only the substance of the advice provided by government health agencies, but also indicated his scepticism regarding the bona fides of those agencies publishing the public health advice. Specifically, the father contended by way of oral submissions that the Queensland and Commonwealth governments have “lied” and, more generally, that “governments lie to people”,[1] including in respect to advice provided to protect the community against the COVID-19 virus and limit its spread throughout the community. The general scepticism of government motivations that was expressed by the husband did not distinguish between governments of different political persuasions. [1] Transcript 15 March 2022, p.25 line 32.