Fontain & Pretre
[2022] FedCFamC1F 198
•9 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fontain & Pretre [2022] FedCFamC1F 198
File number(s): SYC 5143 of 2018 Judgment of: ALTOBELLI J Date of judgment: 9 February 2022 Catchwords: FAMILY LAW – PARENTING – INJUNCTION – Urgent injunction sought by the father restraining the mother from causing the child to receive the second dose of the COVID-19 vaccine – Oral adjournment application sought by the father to obtain expert evidence – Where adjournment would delay the second dose beyond the medically recommended period – Adjournment application dismissed – Where medical evidence recommends the child receive the COVID-19 vaccination – Finding that COVID-19 vaccination of the child is in the best interests of the child – Application for costs – Whether costs should be awarded on an indemnity basis due to matters of conduct – Finding that the father made injunction application as a concerned parent – Finding that the father’s case was wholly unsuccessful – Order that the father pay the wife’s costs but not on an indemnity basis Legislation: Family Law Act 1975 (Cth) ss 60CC, 117 Cases cited: Colgate-Palmolive & Cussons Pty Limited (1993) 118 ALR 248; [1993] FCA 536 Division: Division 1 First Instance Number of paragraphs: 37 Date of last submission/s: 9 February 2022 Date of hearing: 9 February 2022 Place: Sydney Applicant: Litigant in person Counsel for the Respondent: Mr Lawrence Solicitor for the Independent Children’s Lawyer: Ms Carroll ORDERS
SYC 5143 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FONTAIN
ApplicantAND: MR PRETRE
RespondentINDEPENDENT CHILDREN'S LAWYER
Intervener
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
9 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The father’s oral application for an adjournment is dismissed.
2.The father’s Application in a Proceeding filed 2 February 2022 is dismissed.
3.The mother is permitted and authorised to have the children, X born in 2014 and Y born in 2016, immunized for COVID-19 and shall be at liberty to provide a copy of this order to the immunization provider.
4.The father is restrained from interfering with the implementation of Order 3 in any way.
5.Subject to the Independent Children’s Lawyer receiving a grant of Legal Aid, the father must pay the costs of the Independent Children’s Lawyer fixed in the sum of $1,320 within 28 days.
6.The father must pay the costs of the mother fixed in the sum of $8,000 within 56 days.
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 Fontain & Pretre has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)ALTOBELLI J
THE FATHER’S ADJOURNMENT APPLICATION
The father, Mr Pretre (“the father”) is the applicant in these proceedings and makes an oral application for the urgent hearing of his Application in a Proceeding filed 2 February 2022 to be adjourned. The adjournment application is not granted. These proceedings concern an urgent application in circumstances where the children have received the first dose of the COVID-19 vaccine and are due to receive the second dose of the COVID-19 in the latter half of next month.
It is clear the father comes before this Court with inadequate evidence to support his case, notwithstanding his protestations of urgency. If the adjournment application were granted, there is no reasonable reassurance as to when the matter would stand adjourned, and the impact on the children of having to postpone their second dose of the COVID-19 vaccine.
In the circumstances, an adjournment is not in the best interests of the children and therefore it is not appropriate to grant an adjournment of the application.
APPLICATION IN A PROCEEDING FILED 2 FEBRUARY 2022
The father’s urgent Application in a Proceeding filed 2 February 2022 in effect amounts to an injunction against Ms Fontain (“the mother”) from causing the children, X born in 2014 and Y born in 2016 (“the children”), to be vaccinated against COVID-19.
The broader context of this case is that the substantive application relating to final parenting orders is reserved. Written reasons for judgment is estimated to be delivered in approximately two weeks. This case involves a high-conflict dispute between the parents.
During the course of the final hearing, the father gave evidence that he had no objection to the children being vaccinated against COVID-19. Notwithstanding that impression, as confirmed by the Independent Children’s Lawyer, and, indeed, by the father himself, the father appears to have had a change of heart. It is not entirely clear what has caused that.
In any event, the father now opposes the children being further vaccinated, in circumstances where they have received their first vaccination. The reasons for this are provided in his two affidavits filed 2 February 2022 and 8 February 2022, the annexures thereto and the document from Australian Government Department of Health tendered as exhibit A1.
The mother in her Response filed 9 February 2022 opposes the orders sought by the father, seeks orders that she be permitted to cause the children to be vaccinated and that the father’s application be dismissed. During submissions of the mother’s counsel, Mr Lawrence, an oral application was made seeking an order that the father be restrained from interfering with the operation of this order, based on the evidence before the Court. The mother’s Response is supported by her affidavit filed 8 February 2022.
The evidence
In support of his case, the father relied on the following documents:
(a)His Application in a Proceeding filed 2 February 2022;
(b)His Affidavit filed 2 February 2022;
(c)His Affidavit filed 8 February 2022; and
(d)Australian Government Department of Health document tendered and marked as exhibit A1.
In support of her case, the mother relied on the following documents:
(a)Her Response to an Application in a Proceeding filed 8 February 2022;
(b)Her Affidavit filed 8 February 2022; and
(c)Her Cost’s Notice filed 8 February 2022 tendered and marked as exhibit R1.
No objection was taken to any material filed.
The question for the Court to determine is, on the basis of the material before it, whether it is in the best interests of the children for their course of vaccination to be completed. It appears uncontroversial that the children received their first dose on 31 January 2022. They did so in circumstances, it would seem, where the mother acted contrary to the father’s opposition to the same.
There is no order for equal parental responsibility. The strong impression formed from the hearing of the substantive matter is that the parents do not communicate well and certainly do not agree much about the children.
The issue for the case is not whether the mother acted appropriately in failing to adequately consult with the father. The question is as framed by the mother’s counsel, that is, whether it is in the best interests of the children for the course of vaccination to be completed.
The father in his material refers to a number of documents, not all of which are helpful to his case. For example, in annexure 5 to the father’s second affidavit, he attaches material that appears to come from a website that deals with COVID-19 cases and deaths.
The document indicated that there is a survival rate of 99.89 per cent of those infected with COVID-19. It further indicates that while there are COVID-19 vaccine injuries, including, relevantly for the age group of these children, the risk of heart inflammation in the age group of five to 11 years is infinitesimally small. On one interpretation of the document, the evidence suggests that 10 children in the age group of five to 11 have experienced heart inflammation out of the total doses administered in Australia: seemingly almost 20 million. While the figure of the total doses administered in Australia does not identify or isolate the number of which were children, the overall impression created is that the risk is not a substantial one.
The more informative document was that which was tendered by the father as exhibit A1. It is a document seemingly sourced from the Australian Government Department of Health. The document states that the Pfizer vaccine is currently available as the first and second dose of the COVID-19 vaccine for people aged five years and over. It explains that the dose schedule recommended – and I have formed the view that it is a recommendation from this document – is two doses of Pfizer for children, which is one-third of the adult dose, given eight weeks apart, unless advised otherwise by a medical professional.
The document records that the Therapeutic Goods Administration provisionally approved the vaccine for children five to 11 years. It states categorically that the approval was based on a careful evaluation of available data to support its safety and efficacy among this age group.
The document further states that vaccinating children can help protect children from being infected with COVID-19. This goes to the best interests of the children. The document states that the vaccination can help prevent children passing COVID-19 onto younger siblings, parents, grandparents and the wider community. This goes to the public interest, and is a matter that the Court entitled to take into account in making an order under s 60CC(3)(m)of the Family Law Act 1975 (Cth) (“the Act”). The document very clearly states that children aged five to 11 will receive a two-dose primary course of vaccination, given eight weeks apart.
The document is observed to be clearly advisory and recommendatory in nature. It addresses the risk – as identified in annexure 5 to the father’s Affidavit filed 8 February 2022 concerning heart inflammation – and it states that the risk of developing myocarditis or pericarditis is very low. It refers to US data that reported rates in males were 10 cases per million following the first dose, and 67 cases per million following the second dose.
The document acknowledges that the risk in children aged five to 11 years is not yet known as the clinical trial for this age group did not have enough participants. The document does state clearly that there are no specific safety concerns that have been identified so far from millions of doses of this vaccine administered overseas to children aged five to 11.
The document categorically states the benefits of vaccination outweigh this very rare risk, and vaccination is still recommended for all eligible age groups. It categorically concludes that the benefits of the Pfizer vaccination greatly outweigh the risk of side effects of the same.
It is important to recognise that this is the father’s evidence in his case, but it is evidence that is adopted both by the mother and the Independent Children’s Lawyer. Notwithstanding this evidence, the father sought an adjournment for want of expert evidence presumably to the effect of negativing this advice, which the Court declined.
In this case the Court has more evidence available to it. It has the specific evidence of the paediatrician and of the general practitioner of these children. The evidence of the paediatrician, Dr K, in relation to the child Y is very clear and in categorical terms:
When COVID-19 vaccination is approved for children aged 5-12 years old, I would strongly recommend Y receive the vaccination.
There is also the evidence of the general practitioner, Dr H, who also supports the children being vaccinated.
With the greatest of respect to the father, who does strike me as being a caring and concerned father, it is hard to reconcile his complete reversal of attitude in his evidence, and it is hard to see any objective basis on which to deny these children, and the public generally, of the benefits of vaccination.
The Court considers it to be in the best interests of the children that they be allowed to be vaccinated. It is consistent with the primary consideration set out in s 60CC(2)(b) of the Act, that is, the need to protect the children from physical harm and from being subjected to neglect. In circumstances where there is a risk of the children contracting COVID-19, and therefore physical harm should they remain unvaccinated, a failure to do so would constitute neglect.
The Court is satisfied that in accordance with the welfare powers of the Court, it is in the best interests of the children for them to be vaccinated. For those reasons, the application of the father is dismissed. These reasons for judgment are necessarily brief as the matter has some urgency.
COSTS APPLICATION
Following the Court dismissing the father’s application for the mother to be restrained from having the children further vaccinated against COVID-19, an application for costs was made on behalf of the mother and on behalf of the Independent Children’s Lawyer. The mother sought indemnity costs in the sum of $13,000 in accordance with the costs notice tendered as exhibit R1, as it would cover the entirety of the wife's costs incurred in the course of the present application. The mother also sought that, in the alternative, an order for costs as assessed, however submissions were made against making an order for costs as assessed because of the conflictual nature of the relationship between the parents.
The Independent Children's Lawyer framed her application for costs on the basis that should a grant of aid be forthcoming, then it would be in the sum of $1,320.
An application for costs is governed by s 117 of the Act. The starting proposition in s 117(1) is that each party shall pay and bear their own costs. However, s 117(2)(a) is clear that in deciding whether an order for costs should be made, and the Court is of the opinion that there are circumstances that justify doing so, then the Court must have regard to the matters contained in s 117(2)(a). The Court had the benefit of submissions from the father himself, the mother through her counsel, and Ms Carol as the Independent Children's Lawyer with reference to the matters within s 117(2)(a). The Court must consider the financial circumstances of each party. Whilst the Court does not have formal evidence in this regard, the Court accepts the father’s submissions. The well-established authorities are quite clear that impecuniosity, that is, the inability to pay is not a reason to decline to make a costs order where one would otherwise be properly made pursuant to the provisions of the Act.
Section 177(2)(b) regards costs with respect to assistance from Legal Aid. While the parents are not in receipt of Legal Aid assistance, the Independent Children's Lawyer is. As submitted by the Independent Children's Lawyer, it is the public cost that is involved.
Section 117(2)(c) regards the conduct of the parties in relation to the proceedings. The argument on behalf of the mother and supported by the Independent Children's Lawyer is that the father's change of position with respect to vaccination is unexplained and is, in the circumstances, incomprehensible and therefore warrants his conduct being taken into account in making a costs order against him. It appears to be the strong impression of both myself as the trial judge, Ms Carol as the Independent Children's Lawyer, and to a certain extent not cavilled with by the father, that during the course of the final hearing - specifically cross-examination by the Independent Children's Lawyer - he expressed no concerns about the children being vaccinated. The strong impression formed as a result of the bringing of the substantive application that was dismissed, is that the father had changed his view for reasons that the Court found unclear, and in any event unconvincing. The Court considers this to be a factor that militates in favour of the making of the costs order. In the final hearing, the father gave oral evidence that there was not going to be an issue with respect to the children being vaccinated and now there is such an issue without satisfactory explanation.
Section 117(2)(d) relates to whether the proceedings were necessitated by the failure of the party to comply with previous orders. That does not appear to apply in this matter. There is no order for equal shared parental responsibility. The provisions of 61D, therefore, apply, and the mother's conduct in consulting the father was in many respects a formality; it was not required. Given the existence of joint parental responsibility, she was entitled to make the decision that she did, and it cannot be said that the mother acted unreasonably in this regard.
Section 117(2)(e) regards whether any party to the proceedings has been wholly unsuccessful. It is clear that the father was entirely unsuccessful. In support of an application for indemnity costs the mother submitted that the Court would form the impression or would infer that the father's conduct in bringing the proceedings was improper, or there was an ulterior purpose. The evidence of that in this matter is scant. The strong impression formed of the father is that he is a concerned and loving father, but he is misguided about the issue of vaccination. The father is also completely indifferent to the costs that the mother would have to incur in defending the application, indifferent to the cost to the Independent Children's Lawyer, and therefore to the public of the Independent Children's Lawyer's involvement in this case, and indifferent to the cost to the public in terms of half a day's Court time that was necessitated today.
The father states that he had the benefit of legal advice, albeit on a pro bono basis. This does not improve the impression of the Court. The father tells the Court that he truly believed that his application was in the best interests of the children. To truly believe that something will happen, for example, the provision of expert evidence at some indeterminate time, at some unspecified cost, does not change the reality of this case. Even on the father's own evidence, there was no reasonable prospect of success, and, in fact, there was complete lack of success.
There was no objective basis for the father to have brought this application. The evidence that he referred to, whether it is the World Health Organisation documents or whether it is the Australian Government Department of Health documents, were cherry picked to suit his case. The failure of the father to consult the children's treating doctors, the evidence of whom is before the Court and which was well-known to the father at an earlier time, reflects poorly on him.
In the circumstances, the Court believes that an order for costs is warranted in this case, but not the order for indemnity costs as proposed on behalf of the mother. I am not satisfied that the relatively high threshold established by Colgate-Palmolive & Cussons Pty Limited (1993) 118 ALR 248 has been satisfied in this case. Whilst I have the impression that the father is a concerned and loving father but was utterly misguided in this case, the Court does not consider that warrants the order for indemnity costs. However, an order for costs is overwhelmingly warranted in this case. I assess those costs at $8000.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 9 February 2022