Duke-Randall & Randall - [2014] FamCA 126

FAMILY COURT OF AUSTRALIA

DUKE-RANDALL & RANDALL

[2014] FamCA 126

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment application – Consideration of the history of the litigation – Whether the proceedings should be further delayed – Best interests of the children – Where the mother has had sufficient opportunity to prepare her case – Prejudice to mother and other sides if application granted or dismissed – Application dismissed.

FAMILY LAW – CHILDREN – Specific issue as to immunisation of the children – Whether it is in the best interests of the children to be immunised or remain unimmunised – Single expert immunologist evidence unchallenged – No evidence before the Court of risk of harm to the children in being immunised.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway

APPLICANT:

Ms Duke-Randall

RESPONDENT:

Mr Randall

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Penrith

FILE NUMBER:

PAC

2327

2011

DATE DELIVERED:

12 March 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

29 January 2014

REPRESENTATION

SOLICITOR FOR THE RESPONDENT:

McPhee Kelshaw

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Penrith

Orders

That the father be discharged from any undertaking given to the Court such as would restrain him from immunising/vaccinating J Randall, born … 2002, and L Randall, born … 2004, (“the children”).
That any existing Court Order restraining the parties, or either of them, from immunising/vaccinating the children be discharged.
That the father be at liberty to immunise/vaccinate the children in accordance with the recommendations of the Single Expert, Professor K, or in accordance with the recommendations of the children’s treating general practitioner after consultation with Professor K or such other specialist medical practitioner recommended by Professor K.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duke-Randall & Randall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2327 of 2011

Ms Duke-Randall

Applicant

And

Mr Randall

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Background

The issue before the Court for determination in these proceedings is a discrete issue as to parenting in relation to the subject children. The father in the proceedings seeks to be released from restraints that prevent him from vaccinating and/or immunising the children and the mother seeks injunctive relief restraining him from so doing.
The proceedings were commenced by the Applicant mother in the then Federal Magistrates Court of Australia by application filed on 16 June 2011. In that application the mother sought orders as to parenting in relation to the children J, born in 2002, and L, born in 2004, (“the children”) and orders for property…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Duke-Randall & Randall [2014] FamCA 126
Case: [2014] FamCA 126
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by the mother, Ms Duke-Randall, for an adjournment of proceedings concerning the immunisation of her two children, J and L, born in 2002 and 2004 respectively. The father, Mr Randall, sought to be discharged from undertakings restraining him from immunising the children and sought liberty to proceed with their vaccination. The proceedings had a lengthy history, commencing in 2011, with interim orders made in 2012 allocating the father sole parental responsibility and the children to live with him.

The primary legal issues before the Court were whether the proceedings should be adjourned, considering the history of the litigation and the best interests of the children, and whether it was in the children's best interests to be immunised or remain unimmunised, given the unchallenged evidence of a single expert immunologist and no evidence of harm from immunisation. The mother sought to introduce further expert evidence and appeal previous decisions, which formed the basis of her adjournment application.

The Court dismissed the mother's application for an adjournment, finding that she had been afforded sufficient opportunity to prepare her case over a considerable period. The Court noted the prejudice to all parties if the proceedings were further delayed. Regarding the immunisation issue, the Court considered the unchallenged evidence of the single expert immunologist and the absence of any evidence suggesting risk of harm to the children from being immunised. The Court applied the principles concerning the best interests of the children as paramount in parenting matters.

The Court ordered that the father be discharged from any undertakings restraining him from immunising the children and that any existing court orders to that effect be discharged. The father was granted liberty to immunise the children in accordance with the recommendations of the single expert or their treating general practitioner after consultation with the expert or another specialist.

Orders