Cranston & Persson (No 2)
[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
This judgment concerns the discrete issue as to whether the mother, Ms Persson (“the mother”) should be given parental responsibility in respect to determining whether the parties’ children, X, born in 2011 and Y, born in 2013 ("the children"), should be vaccinated against the COVID-19 virus, which has remained prevalent in both the Australian and international community for approximately two years. The father, Mr Cranston (“the father”), opposes the children being vaccinated, at least at this point in time.
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)
During the course of the hearing on 15 March 2022, the father submitted that he sent that text during a period of despondency as a result of the ongoing parental conflict.
I have placed no significance on the contents of that message, save to the extent that it provides context to the mother’s decision to arrange for the children to receive their first vaccination. The father, comparatively, contends that the mother was not justified in arranging for the children to receive their first vaccination without his consent. For the purpose of this decision, I have accepted the validity of the husband’s argument. However, the focus of my decision is on the best interests of the children, not on what was requested by the father, that is, for the Court to initiate contravention proceedings against the mother.
The father attempted to make contact with the children on Christmas Day 2021 however, regrettably, the children did not wish to speak with the father. It is clear that there is a strained relationship between not only the parties but also the children and the father. It is not possible, in these proceedings, to determine how that has come about.
In the period subsequent to sending the text message referred to above, the father has moved to New South Wales.
The mother attests to recognising the severity of the current COVID-19 pandemic and wishes to have the children vaccinated in accordance with recommendations issued by the Queensland Chief Health Officer and other relevant Commonwealth government agencies.
On 21 January 2022, the mother attended upon the children’s general practitioner, Dr B, whom the mother states she consulted in respect to obtaining advice as to whether the children should receive the COVID-19 vaccination. The mother’s unchallenged evidence is that Dr B recommended that the children should be so vaccinated and provided a medical certificate in respect to each child, dated 21 January 2022 which, in each case, read:
This letter is to certify that [the child] is a regular patient of mine who is healthy and there are no contraindications for the paediatric COVID 19 vaccination.
Acting upon that advice, the mother attests to arranging for the children to have their first vaccination on that same day, 21 January 2022. It is accepted that neither of the children had adverse reactions to the first vaccination. The mother attests to the children wanting to be vaccinated and wanting to receive their second vaccination in the future.
On 1 February 2022, solicitors acting on behalf of the father wrote to the mother stating:
We refer to the above and confirm we act on behalf of Mr Cranston in relation to current Family Law matters.
We are instructed that you recently took the two children to receive the COVID-19 vaccination despite our client indicating that he did not agree with the children receiving that injection.
Can you please advise when the children are due to receive their second injection.
We ask that you please advise whether prior to any further injection being received by the children you are agreeable to attend at mediation and will confirm that you will not take any steps to have the children injected with a second dose of a COVID-19 vaccination until a written agreement or Order of the Court.
We confirm that if we do not hear from you by close of business on Thursday, 3 February 2022 that we are instructed to initiate proceedings in the Federal Circuit and Family Court of Australia in relation to this issue.
(As per the original)
On 25 February 2022, Dr B provided a report in respect to X, which read as follows:
Ms Persson, mother of X 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.
X is a regular patient of mine who suffers from eczema, asthma and anxiety. I have advised that these medical conditions nor the medications she is taking which include asthma puffers and steroid creams are not contraindications to getting the covid 19
vaccinations. X has currently had her first dose of COVID 19 vaccination which was done at a different provider.
(As per the original)
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.
Significantly, the paper prepared by the NCIRS records staff at the NCIRS and staff employed by the Sydney Children’s Hospital’s Network (“SCHN”) as the authors. Those authors include Dr Archana Koirala, Dr Ketaki Sharma, Dr Helen Quinn, Noni Winkler, Deepika Jindal, Associate Professor Philip Britton, Associate Professor Nicholas Wood and Professor Kristine Macartney.
APPLICATIONS
At proposed order 19 of the Application in a Proceeding filed 8 February 2022, the father sought the following order:
That neither party will cause the children to receive a COVID-19 vaccination injection without the express written consent of the other parent or Order of the Court.
At proposed order 3 of her response filed 9 February 2022, the mother sought the following order:
The Mother is given sole parental responsibility regarding the specific issue of vaccination, when vaccination is in accourdance [sic] with the national immunisation program or as recommended by the children's GP.
APPROACH
All parenting proceedings are to be determined in accordance with Part VII of the Family Law Act 1975 (Cth) (“the Act”). Parenting orders are defined in s 64B of the Act. Section 64B(2) sets out what matters parenting orders may deal with and includes, in s 64B(2)(c), “the allocation of parental responsibility for a child” and, in s 64B(2)(i), “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.”
The overarching principle for parenting orders is found in s 60CA of the Act which states that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Also of relevance are ss 43 and 67ZC of the Act. Section 43 sets out the principles to be applied in the exercise of the Court’s jurisdiction and includes, in subsection (1)(c), an obligation to have regard to “the need to protect the rights of children and to promote their welfare.” Section 67ZC relevantly provides:
(1)In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
Note:Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.
(2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out the relevant considerations to which the Court should have regard in arriving at a determination as to what is in the best interests of the child. In Banks & Banks (2015) FLC 93-637, the Full Court outlined a common sense approach in applying s 60CC, noting in respect of parenting proceedings at [48] that “as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant,” and, while there is an obligation on the judicial officer to “consider” each of the matters set out in s 60CC, that obligation does not mean that each factor must be discussed. To do so, as the Full Court observed at [49], risks the judicial officer “[losing] sight of the forest for the trees”.
As previously noted, the sole issue to be determined in these proceedings is whether the mother should be given parental responsibility to the extent that it authorises her to arrange for the children to receive their second vaccinations, as well as any possible booster vaccinations, in response to the COVID-19 pandemic.
While I have considered the potential relevance of each of the matters set out in s 60CC of the Act, the determination of the central issue in these proceedings essentially involves determining how parental responsibility should be exercised to promote the welfare of the children, as required by s 43 of the Act while, at the same time, preventing the children from being exposed to an unacceptable risk of harm as set out in s 60CC(2)(b) of the Act. Determination of this issue includes having regard to any individual characteristics of the children as set out in s 60CC(3)(g), the wishes of the children as stipulated in s 60CC(3)(a), and s 60CC(3)(m), which includes “any other fact or circumstance that the Court thinks is relevant.”
EVIDENTIARY MATTERS
To the extent provided in s 69ZT of the Act, when considering applications for parenting orders pursuant to Part VII of the Act, Divisions 3, 4 and 5 of Part 2.1 of the Evidence Act 1995 (Cth) (“the Evidence Act”) are largely not required to apply the rules of evidence. Relevantly, s 69ZT(1)(c) provides that Parts 3.2 and 3.8 of the Evidence Act, which set out limitations on the Court’s ability to receive hearsay and opinion evidence, do not apply. This is significant given the evidence attached to the mother’s affidavits, which is in the nature of both hearsay and opinion evidence.
Section 48(1)(f)(ii) of the Evidence Act relevantly provides that a party may adduce evidence of the contents of a document which is, or purports to be, a public document that is, or purports to have been, printed “by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country.”
The dictionary to the Evidence Act defines the term “document” as including “anything from which sounds, images or writings can be reproduced with or without the aid of anything else”. There can be no doubt, in my opinion, that the documents downloaded from government websites and attached to the mother’s affidavits, to which I have referred, are documents for the purpose of the Evidence Act.
In this case, the father did not raise an issue as to the source of those documents attached to the mother’s affidavit being from relevant government websites, nor did he challenge the authenticity of those documents. Indeed, in his submissions, he referred to documents of a similar nature. In any event, s 58 of the Evidence Act relevantly provides:
Inferences as to relevance
(1)If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.
(2)Subsection (1) does not limit the matters from which inferences may properly be drawn.
(Emphasis added)
Having read the fact sheets and documents of advice provided on the Queensland and Commonwealth government websites respectively, which have been downloaded and attached to the mother’s affidavits, I am satisfied as to the identity of those documents. That is, I am satisfied that they have been published by either the Queensland government or the Commonwealth government as indicated on each of the documents. I am also satisfied that the documents are authentic.
Further, s 183 of the Evidence Act relevantly provides:
Inferences
If a question arises about the application of a provision of this Act in relation to a document or thing, the court may:
(a) examine the document or thing; and
(b)draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.
Note:Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents.
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.
In those circumstances, I am not satisfied that the husband will have regard to the health advice provided by both the Commonwealth and Queensland governments with an open and objective mind which, in my opinion, is a necessary precondition to a decision being made that is in the best interests of the children. To the contrary, on the basis of the material that he has sent to the wife and which is attached to her affidavits, I am satisfied that the father has reached a predetermined view and, given his scepticism of government, I have a significant concern that he has searched the internet for material to support his subjective opinion.
Accordingly, unless satisfied that there is an unacceptable risk to the children, I propose to make an order in the terms sought by the mother. That is, an order giving the mother sole parental responsibility regarding the specific issue of vaccination of the children in respect to the COVID-19 virus, where vaccination is in accordance with the national immunisation program or as recommended by the children's general practitioner.
In making that decision, I have also had regard to the fact that the decision is in accordance with the wishes of the children as set out in paragraphs 13 and 14 of the mother’s affidavit filed 3 March 2022.
That finding is sufficient to determine the matter, however, for completeness and given the current public interest in this issue, I additionally set out the reasons for my finding that, on the basis of the evidence presented to me in these proceedings, it is in the children’s interests for them to be vaccinated, both from the perspectives of the health of each child and also their day to day life as active members of society, including attending school and their ability to participate in extra-curricular and sporting activities.
During the course of the proceedings, the mother noted, by way of background legislative context, that a state mandate existed for persons employed in essential service industries to be vaccinated against the COVID-19 virus.[2] In order to assist the parties to clarify their respective arguments with respect to the significance of that background observation of the mother, I referred the parties to a direction made by the Queensland Chief Health Officer titled “COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2) (“the Direction”) and invited submissions as to whether I should take judicial notice of that Direction pursuant to s 144 of the Evidence Act. There was no objection to me taking that course. I note that the Direction records that:
On 29 January 2020, under the Public Health Act 2005, the Minister for Health and Minister for Ambulance Services made an order declaring a public health emergency in relation to coronavirus disease (COVID-19). The public health emergency area specified in the order is for ‘all of Queensland’. Its duration has been extended by regulation to 26 March 2022 and may be further extended.
[2] Transcript 15 March 2022, p.18 lines 19–20.
I further note that, in Schedule 2 of the Direction, the following are classified as “high-risk settings”:
Early childhood, primary and secondary educational settings including:
•schools and outdoor education facilities
•other education facilities, including TAFE, that are co-located with a school
•outside school hours care and vacation care
•kindergartens, registered and licensed early childhood settings and family daycare providers
As a result of that classification, persons who are recorded as “workers” employed or working in these settings are required to be vaccinated against the COVID-19 virus. Contrary to the contention of the father, the mother did not base her case on the submission that the Direction requires children to be vaccinated. She did not. Nevertheless, the Direction records that the Queensland government regards schools as being high risk settings for the transmission of the COVID-19 virus. The fact that schools have been so designated, moreover, accords with common sense and the lived human experience during the COVID-19 pandemic that people, including children, are more likely to contract the virus when they are present in greater numbers and in relatively close confines, such as in a school classroom.
Having regard to that risk of exposure, I am satisfied that unless outweighed by the risk of vaccination, it is desirable for the children to be vaccinated to reduce the potential of transmission of the virus and, if unfortunately contracted, for the children to be as resilient as reasonably possible to the adverse consequences of the infection.
In doing so, while the content of the public health advice attached to the mother’s affidavits is both hearsay and opinion by a person other than those who have been engaged as an expert pursuant to Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), subject to weight, I am nonetheless entitled to have regard to that evidence pursuant to s 69ZT of the Act: see also r 7.23(c). Despite the nature of the evidence and the fact that it is not in the form required by r 7.22, I nonetheless give the evidence considerable weight having regard to:
·The authoritative source of the advice;
·The consistency in the advice as provided by both the Commonwealth and state governments;
·The consistency of the advice with international advice;
·The consistency with decisions of other Australian courts; see for example Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWC 6309 at [41]; applied in Cox v DP World Brisbane Limited [2021] FCA 1335 at [94]–[95]; and
·The consistency with decisions of courts of comparable Western democracies: see for example Dyquiangco Jr. v. Tipay 2022 ONSC 1441 (“Dyquiangco”) and the cases cited therein.
In respect to that last point, it is to be noted that, in considering the substance of similar advice provided by public health authorities in Canada together with “our collective lived experience”, in Dyquiangco Jarvis J found as follows at [22]:
(a) The Covid virus kills;
(b) The virus is transmissible;
(c) The virus can, and has, mutated;
(d) Variants of the virus are more transmissible than others;
(e) Asymptomatic carriers of the virus can infect other people;
(f)Symptoms of the virus may vary according to age, health and co-morbidity factors;
(g) The virus does not discriminate;
(h) There is no known immunity to contracting the virus;
(i)There is no verifiable evidence of natural immunity to contracting the virus, or any mutation, a second or more times;
(j) Vaccines work;
(k)Vaccines are generally safe and have a low risk of harmful effects, especially in children;
(l)Vaccines do not prevent infection, reinfection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes.
I further note that Hughes J in Lamos & Radin (No 2) [2022] FedCFamC2F 167 (“Lamos”) reviewed similar public health information and concluded at [11]:
(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.
Noting that the evidence attached to the mother’s affidavits provides similar advice to that which has underpinned the findings in Lamos and Dyquiangco, I summarise the nature of the evidence which has been tendered in these proceedings, as it applies to children aged between five and 11 years receiving a COVID-19 vaccination, as follows:
·Coronavirus (“COVID-19”) can cause serious ongoing health issues and sometimes death.
·Young people have a lower risk of severe complications if they are infected with COVID-19 compared to older people, however the Delta variant of COVID-19 is more transmissible and is causing higher numbers of cases in children when compared with the original strain.
·Vaccination will protect children from rare but serious complications of COVID-19, which includes a rare but serious condition called paediatric inflammatory multisystem syndrome temporally associated with the virus. This is also known as multisystem inflammatory syndrome in children (“MIS-C”).
·MIS-C can cause multiple parts of a child’s body to become inflamed, including the heart, lungs, eyes, brain, kidneys, skin and gastrointestinal tract.
·Most children with this condition need to be treated in hospital and a small proportion of children with MIS-C have died. Most people who contracted MIS-C were aged between five and 11 years.
·Preliminary studies already show that, even mild cases of the virus, increase the risk of long-term health problems, including what has been identified as the “post COVID condition” which can include symptoms such as ongoing fatigue, body aches, difficulty concentrating, and even changes to mood.
·Hospital admission statistics show that persons who have received the COVID-19 vaccination have a much lower chance of developing more serious symptoms from COVID-19 or needing intensive treatment compared to those who did not get the vaccine.
·Receiving the vaccination will restrict the virus from spreading to the child's immediate circle of friends and family.
·Vaccinating children will limit outbreaks in schools and classroom closures, which will minimise disruptions to education, and extra-curricular and social activities, which significantly impact on the wellbeing of children and their families.
·Increasing the rate of vaccination of the community generally, including children in the five to 11 year age group, will also help the community return to normal activities without disruptions such as needing to isolate after contact with a COVID-19 positive person and will support the safe enjoyment of other activities such as overseas travel.
·Viruses like SARS-CoV-2, which causes COVID-19, often change over time as they adapt to their environment. Vaccination will assist in slowing the rate of these variations emerging and provide time for scientists to adapt the technology used to create the COVID-19 vaccinations to provide a defence to subsequent variants and stop such variants from emerging in the community.
·The Comirnaty (Pfizer) vaccine has been recommended for children, with the recommended dosage being two injections containing 10 micrograms each, given approximately eight weeks apart.
·Peer-reviewed research shows that the vaccine has approximately 90.7% efficiency against COVID-19 in young children from seven days after administration of the second dose.
·Significantly, in over 4 million children who were vaccinated in a study conducted in the United States, no child who has been administered with the Paediatric Pfizer vaccine, who are in the five to 11 year age group, have experienced MIS-C or pericarditis, which is inflammation of the lining of the outside heart.
Having considered those benefits and contentions for the vaccine, it is, of course, necessary to consider the potential risks associated with any vaccine and, specifically, the COVID-19 vaccines, which include:
·As common side-effects: injection site pain/swelling, tiredness, headache, muscle pain, chills, fever and/or joint pain.
·As less common side-effects: injection site redness/itching, nausea, enlarged lymph nodes, feeling unwell, pain in the limb and/or insomnia.
·As rare side-effects: possible allergic reactions including:
·anaphylaxis (severe allergic reaction)
·myocarditis (inflammation of the heart muscle) and pericarditis (inflammation of the outer lining of the heart), although these conditions have been reported predominantly after the second dose in males aged 16–30 years
In respect to those more serious conditions, the advice issued by the Commonwealth Department of Health and annexed to the mother’s affidavit dated 8 March 2022 is as follows:
The Pfizer and Moderna COVID-19 vaccines have a very rare risk of heart inflammation (called myocarditis or pericarditis). Myocarditis and/or pericarditis occurs very rarely in younger people, including adolescents and children 12 years of age and older after vaccination. It is more common after dose 2 and in males.
Real-world data shows that younger children are less likely to experience heart inflammation than teenagers. In the USA, from data reported through to 11 June 2021, the rate of myocarditis/pericarditis in female adolescents aged 12-17 years was 9.1 per million doses, and in male adolescents aged 12-17 years 66.7 per million doses of an mRNA COVID-19 vaccine given. The rate of myocarditis in children is expected to be lower than that in adolescents and milder. Most people who have had these conditions after their vaccine have recovered fully.
Because myocarditis is rare, the clinical trial in children aged 5 to 11 years did not have enough participants to assess rates of myocarditis or pericarditis following vaccination with the Pfizer COVID-19 vaccine, but no specific safety concerns have been identified so far from millions of doses of this vaccine administered overseas to children aged 5 to 11 years.
Having identified those risks, the advice provided by the Australian Government Department of Health is that “the benefits of vaccination outweigh this very rare risk” and vaccination for the five to 11 year age group is recommended.
In supporting that recommendation that the benefits of vaccination outweigh the risk, by cross reference to authoritative publications, the authors of the fact sheet provided by the NCIRS titled “COVID-19 and children: Frequently asked questions on the disease, vaccines and schooling” to which I have earlier referred, stated as follows:
Clinical trials and real-world studies have shown that COVID-19 vaccines approved for children (5-11 years) and adolescents (~12 years) are very safe. They may experience mild side effects after vaccination, but these usually resolve within 48 hours. In the clinical trials for people ~12 years of age, the most common adverse events following immunisation were injection site pain (80-90%), headache (30-50%) and fatigue (30-60%). Information from the USA shows that adverse events in children 5-11 years of age were milder and less frequently observed when compared to 16-25 year olds. The most common adverse events were injection site pain, fatigue, headache, muscle pain, chills and fever. In some instances injection site redness and swelling were more common in children than young adults.
In Australia, the Therapeutics Good Administration (TGA), part of the Australian Government Department of Health, is responsible for approving medicines and vaccines for use in Australia. The TGA has a rigorous process for assessing vaccine safety, quality and efficacy before approving vaccines for use in the population. Australia's national active vaccine safety surveillance system AusVaxSafety also monitors vaccine safety in real-time and provides detailed information on age-specific rates of adverse events, as well as adverse events in Aboriginal and Torres Strait Islander people and those with risk conditions. In addition, tens of millions of adolescents have been vaccinated in countries that are closely monitoring and reporting on safety, including the USA, Europe, Canada, Israel, Singapore and Japan. Similarly, over 4.8 million children 5-11 years of age have received at least one dose of the paediatric Pfizer vaccine in the USA, which is more than the total population for this age group in Australia.
(References omitted)
In the present case, by way of oral submissions, the father expressed a concern regarding the prospect of the children being rendered infertile as result of receiving the COVID-19 vaccination. The wife has attached to her affidavit information downloaded from the internet by the husband, which he contends establishes the existence of that risk. That risk has been considered and dismissed by the NCIRS in the fact sheet to which I have referred, stating, again by reference to authoritative journals and papers:
No, there is no evidence that any of COVID-19 vaccines being used in the Australian COVID-19 vaccination program can lead to infertility. Importantly, COVID-19 vaccines protect young people from getting severely ill and developing serious complications which could affect their ability to become parents.
Before human trials, the Pfizer, Moderna and AstraZeneca vaccines were assessed for their effect on fertility in animal studies. These studies found pregnancy rates in animals that received the vaccine were same as for those that did not receive the vaccine.
Studies from Israel and the US of mRNA vaccines in women undergoing in vitro fertilisation (IVF) comparing who had and had not been vaccinated or had COVID-19 in the past showed that Pfizer and Moderna vaccines did not affect fertility treatment. 38 In studies conducted on healthy men, there were no significant impacts on sperm parameters after COVID-19 vaccination.
(References omitted)
In terms of the father’s concerns that governments domestically and internationally are “lying” to their citizens about the effects of the virus, Jarvis J in Dyquiangco stated at [23]:
This is not “fake science”. It is not “fake medicine”. Whether there is a drug company conspiracy callously or negligently promoting unsafe medicine (the “lie”) in collusion with federal and provincial authorities this Court leaves to another day and to those who think Elvis is alive. He isn’t. He left the building decades ago.
While it must be acknowledged that the father has not contended that there is such a conspiracy, his contention that democratically elected governments have lied to the people who have elected them, in respect to this issue of such domestic and international significance, is devoid of logic and totally without merit. The prevalence of such unfounded views can only impede the collective global efforts of governments around the world to address this significant challenge currently being faced by humanity. Such contentions are not in the interests of these children, nor any other children.
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.
I certify that the preceding sixty nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 25 March 2022
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