Gabbard & Kelleher
[2024] FedCFamC1F 508
•31 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gabbard & Kelleher [2024] FedCFamC1F 508
File number(s): BRC 3130 of 2019 Judgment of: JARRETT J Date of judgment: 31 July 2024 Catchwords: FAMILY LAW – PARENTING – Determination of whether it is in the children’s best interests to be vaccinated against COVID-19 – Where ATAGI guidelines recommend considering vaccination for children with certain risk factors – Equivocal evidence as to whether subject child falls within risk factors – No reason to disturb sole parental responsibility Legislation: Family Law Act 1975 (Cth) Part VII Division 12A, ss 102NA, 102QB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 2.28
Cases cited: Gabbard & Kelleher [2021] FCCA 363
Gabbard & Kelleher [2021] FedCFamC1A 6
Reid v Brett [2005] VSC 184
Division: Division 1 First Instance Number of paragraphs: 73 Date of last submission/s: 5 June 2024 Date of hearing: 15 January 2024 Place: Brisbane Counsel for the Applicant: Ms Frizelle Solicitors for the Applicant: AP Hodgson & Associates Counsel for the Respondent: Ms Karaman Solicitors for the Respondent: Mills Oakley Lawyers ORDERS
BRC 3130 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GABBARD
Applicant
AND: MS KELLEHER
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
31 JULY 2024
THE COURT ORDERS THAT:
1.Leave is granted for the respondent to rely on the affidavit of 24 May, 2024.
2.The application in a proceeding filed 24 May, 2024 is otherwise dismissed.
3.Insofar as it was not otherwise dismissed by the order made on 5 May, 2023 the amended initiating application filed on 31 January, 2023 is dismissed.
4.Insofar as it was not otherwise dismissed by the order made on 5 May, 2023 the amended response filed on 19 January, 2023 is dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
These reasons deal with an application for parenting orders filed by Mr Gabbard, the father of Y (now aged 7 years) and X (now aged 9 years). The respondent, Ms Kelleher, opposes the application.
Following the hearing of an application by the respondent for the summary dismissal of the application, on 5 May, 2023 I dismissed the application except insofar as it relates to vaccination against COVID-19. Whilst the applicant did not seek a specific order in relation to COVID-19 but rather sought that he have sole parental responsibility for decisions relating to the children’s health and medical issues, through the application of the provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth) I limited the remaining outcome for determination arising from the amended initiating application to that stated in the formal record of the order made on 5 May, 2023 namely, “3. …whether there should be an order for the children to be vaccinated against COVID-19…”.
I also dismissed the respondent’s amended response except for paragraph 4. That paragraph was not dismissed because it is the paragraph pursuant to which I summarily dismissed all but the single remaining aspect of the applicant’s amended initiating application. Nothing remains for determination in the respondent’s amended response filed on 19 January, 2023.
Some context to the dispute is necessary.
BACKGROUND
On 26 February, 2021 a judge of the Federal Circuit Court of Australia (as it was then known) pronounced final parenting orders between these parties in respect of Y and X: Gabbard & Kelleher [2021] FCCA 363. An appeal against those orders was dismissed on 12 November, 2021: Gabbard & Kelleher [2021] FedCFamC1A 64.
Relevantly, the orders provided that the children live primarily with the respondent and for them to spend time each alternate weekend and for one half of school holidays with the applicant. There was an order that the respondent have sole parental responsibility for the major long-term decisions for the children. That assumes some significance in this application because X has some very significant health issues. Of these issues, in her reasons for judgment published on 26 February, 2021 the initial trial judge recorded (footnotes omitted):
19.[X] is a special needs child. He has been diagnosed with [a rare medical condition]. The testing by [Dr E], provided the following results:
[…] Testing identified a pathogenic (disease causing) variant […].
20.This diagnosis was made [in] 2019.
21.The NDIS Review Report dated 25 April 2020 summarises the child’s disabilities
Impairment Effect on [X] [Rare medical disorder] [X] has a rare [medical] disorder ([…]) which has only recently begun to be described in the literature. He was given this diagnosis by [Dr E] at the [Clinic at V Hospital]. As such, much is yet unknown about the impact this condition will have upon [X] over the course of his life. […] Autism Spectrum Disorder (ASD) [X] has been Diagnosed with an Autism Spectrum Disorder. The Diagnostic and Statistical Manual of Mental Disorders (DSM-5) defines as Autism Spectrum Disorder as:
A. Persistent deficits in social communication and social interaction across multiple contexts
B. Restricted repetitive patterns of behaviour, interests, or activities
C. Symptoms must be present in the early developmental period
D. Symptoms cause clinically significant impairment in social, occupational, or other important areas of current functioning
E. These disturbances are not better explained by intellectual disability (intellectual developmental disorder) or global developmental delay
[X] was diagnosed with ASD […] by his Paediatrician ([Dr F])
Functionally this means that:• [X] finds it very difficult to understand others when they are speaking, especially if their message is remote or abstract
• [X] finds it very difficult to express his needs, thoughts and feelings, and
• That [X] requires familiar communication partners who can read his subtle cues and signals and who know his daily routines
• [X] has limited social communication skills
Significant Communication Impairment While [X] is highly motivated by social interaction and has made some significant progress with his communication (especially in the past 6 - 12 months) he still has severe delays in communication skills. These significant delays are apparent in Expressive Language (i.e. ability to express needs to others) and Receptive Language (i.e. ability to understand others).
When [X] is medically well, calm and alert he is able to understand verbal instructions (especially those given my familiar communication partners) and respond verbally in single words, phrases and some sentences.
However, when [X] is unwell, tired, overwhelmed by his sensory environment, or when he has suffered a seizure, his communication skills significantly decrease and he has difficulty expressing even his most basic needs, or understanding the verbal communication of others.Severely limited Daily Living Skills [X] needs support in all areas of daily functioning. These difficulties are directly related to his [rare medical] disorder and ASD.
This means that:• Due to his disability, [X] requires intense 1:1 supervision throughout all the routines and activities of daily life. It is never safe to leave [X] alone. This hypervigilance places an extreme burden upon [Ms Kelleher] and [Mr Gabbard] and places [X] at risk of loss of relationships due to his disability.
• [X] is almost completely dependent on [Mr Gabbard] and [Ms Kelleher] to ensure his health, safety and hygiene.
• [X] has a limited diet and only eats a small range of foods
Hypotonia [X] has hypotonia (low muscle tone), this means that:
• He has difficulty maintaining postural tone
• He gets tired very easily, and,• He has significant difficulty performing gross and fine motor tasks
22.[X] has a large number of medical professionals assisting with his care:
Doctor Specialty Practice Current/Non-Current [Dr G] GP […] Current … Home Doctor Service GP […] After Hours … [Dr H] Neurologist […] Current [Dr J] Paediatrician/ Geneticist […] Current [Dr K] Paediatrician [V Hospital] Current [Dr L] Gastro [V Hospital] Current [Dr M] ENT […] Current [Dr F] Paediatrician [V Hospital] Current [Dr E] Geneticist [V Hospital] Current [Dr N] Ophthalmologist […] Current … [Dr O] Sleep paediatrician […] Current … [Dr P] Child Psychologist [X] […] Current [Dr Q] Child Psychologist [Y] […] Current […] Physiotherapist […] Current […] Occupational Therapist Home visit Current […] Dietician Home visit/telehealth Current
These matters are uncontroversial. It is also uncontroversial that Y is generally of good health.
Insofar as argument about the vaccination of the children is concerned, this is not parties’ first rodeo (as they say). As long ago as 4 September, 2019 (so, before the COVID-19 pandemic and before the making of final orders in 2021) it was necessary for there to be orders between these parties about vaccination for their children. On that date, a judge of the Federal Circuit Court of Australia made the following consent orders:
3.That within 7 days the mother attends on [Dr S] and obtains the proposed immunisation schedule for both children.
4.That within 14 days the mother provides the proposed immunisation schedule to [Dr J], [X’s] treating Paediatrician.
5.That once [Dr J] has approved the immunisation schedule, the immunisation of the children shall commence forthwith and both children shall complete the immunisation schedule, in the absence of an emergent issue and/or advice from the child, [X’s], treating Paediatrician.
6.That in the event that [Dr J] does not approve the immunisation schedule proposed then all parties shall adhere to the alternate immunisation schedule proposed by [Dr J].
7.That both parties shall adhere to all treatment recommendations and directions of [Dr J], including but not limited to new proposals for treatment of [X].
The respondent swears that on 9 September, 2019 she attended on Dr S and obtained a proposed immunisation schedule for both children. She further swears that Dr S provided the proposed schedule to Dr J.
The respondent swears that on 11 October, 2019 Dr J provided she and the applicant with an immunisation schedule for the children. It seems uncontroversial that subsequently the parties had both children vaccinated in accordance with the immunisation schedule from Dr J.
The applicant points out that during the respondent’s cross-examination at the final hearing of the initial parenting application on 3 December, 2020 she gave evidence about her attitude towards vaccination. Relevantly, during that cross examination the following exchange occurred:
[MR FF]: So on 28 May 2019 we have a letter from [Nurse EE]. [Nurse EE], to [Dr K]. [X] referred to the service in 2018, but significant delays due to family rescheduling appointments'". Do you recall the family – that is, between you and [Mr Gabbard], rescheduling appointments?---Yes. I do.
Yes. What responsibility do you take for those rescheduling?---- 100 per cent.
100 per cent?---Yes.
Right. And that would be right then when I tum the page that appointments, and then there's a comma, and it says:
[X] unvaccinated due to maternal choice, but mother unable to articulate her specific concerns, unable to engage mother in conversation to discuss a vaccination plan for [X]. Discharged from service.
What were your reasons back then, ma’am?---I was worried that if something happened to him as a result of a vaccination, what would be the support for him and us as a family if something - - -
All right?---If his condition was to deteriorate or worsen.
HER HONOUR: Did you have a reason for believing it might cause that?---Incorrect information I read that vaccines can lead to poor effects afterwards, that some children regress.
Where did you read that?---I can't recall. Just parent groups and talking to other people and there's a Mum at [X’s] kindy whose child had their MMR and then stopped talking. Just – and its stupid because that fear was greater than the fear of him catching measles or polio, and now my opinion has changed, but at the time I didn’t want him to get any worse. I was really struggling to deal with where he was at medically.
[MR FF]: Ma' am, we have a COVID pandemic at the moment?--- Yes.
A vaccination – it seems three vaccinations will soon at some stage – at least soon be available to vulnerable people. What say you with respect to vaccinating [X]?
HER HONOUR: Well, you would have to check that they were even contemplating that before she could answer that question because ---?--- Yes. I've already thought about that
Sorry? --- I’ve already thought about that. If there's a vaccine for both children, then we get it because [Y] is well.
[MR FF]: That deals with my question.
HER HONOUR: Yes. If it's recommended as a medical solution --- ? ---Yes.
- - - you will comply with the medical recommendations?---Yes.
Yes?---Yes.
[MR FF]: I understood what your Honour says, but that answers my question.
Final parenting orders were made on 26 February, 2021.
On 18 January, 2022 the applicant filed an initiating application seeking final and interim orders. Insofar as it as he sought final orders, he specified no orders other than to seek “leave to file an amended initiating application relation to final orders”. It seems the real purpose of the application was contained within the interim orders, namely (errors in the original):
1)That the children … remain in the care of the father until such time as the mother, [Ms Kelleher] provides proof that she has had the Covid-19 Vaccination administered.
2)That the parents will not knowingly expose the children to unvaccinated persons.
3)That the father is permitted to immediately attend upon a Covid-19 Vaccine provider and for such provided to administer the required vaccinations and/or Boosters to the children when directed.
4)that the mother is prohibited from attending, obstructing and preventing the children from receiving the Covid-19 Vaccination.
5)That the parties follow the advice and directions of the children’s treating practitioner, particularly [Dr GG].
At this point, the applicant withheld the children from the respondent and did not return them until orders were made on 24 February, 2022.
The respondent filed a response to the initiating application in which she sought summary dismissal of the initiating application.
The applicant’s initiating application filed on 18 January, 2022 was summarily dismissed as an abuse of process on 24 February, 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 2). The applicant was ordered to pay the respondent’s costs in a sum in excess of $33,500.
Thereafter followed a series of applications – an application for contravention of parenting orders by the respondent against the applicant (filed on 17 May, 2022), an application for enforcement of property adjustment orders by the respondent against the applicant (filed on 8 June, 2022), an application for contravention of parenting orders by the applicant against the respondent (filed on 17 June, 2022), another application for enforcement of property adjustment orders by the respondent against the applicant (filed on 27 September, 2022) and finally, a further initiating application filed by the applicant on 14 November, 2022.
Again, in his latest initiating application, the applicant sought no final orders other than leave to be excused from particularising final orders until such time as “the Family Court report has been released and subpoenas inspected”. He sought a range of interim orders including that the children live with him and spend time with the mother each alternative weekend. He sought the appointment of an independent children’s lawyer and a family report. He sought an order for sole parental responsibility for the major long-term decisions for the children including decisions relating to the health and medical issues. He sought a range of other orders.
Not to be outdone, the respondent filed another application for contravention of parenting orders against the applicant (filed on 17 November, 2022) and an amended application for enforcement of property adjustment orders (filed 1 December, 2022). She discontinued two of the earlier contravention applications by notices of discontinuance filed on 19 January, 2023. On 23 January, 2023 the applicant discontinued his contravention application filed on 17 June, 2022 and a few days later (on 31 January, 2023), he filed an amended application for final orders, this time particularising the final orders that he sought in the proceedings.
By his amended application, the applicant sought a wholesale rearrangement of the extant parenting orders. He sought an order for equal shared parental responsibility for the children, save for decisions relating to the children’s health and medical issues, in respect of which he sought an order for sole parental responsibility. He sought an order that the children live with him and spend alternative weekend time and school holiday time with the respondent. He made a litany of complaints against the respondent and her parenting of the children.
In response, the respondent sought summary dismissal of proceedings on the basis that the applicant did not establish a significant or material change in circumstances sufficient to warrant the revisiting of the welfare of children. She also sought orders pursuant to s 102QB of the Family Law Act 1975 (Cth), the practical effect of which would be to prevent the applicant from commencing any further proceedings without the leave of court.
A further application for contravention of parenting orders was filed by the applicant against the respondent on 31 March, 2023.
I commenced dealing with the respondent’s application to summarily dismiss the applicant’s proceedings on 3 April, 2023. I did not conclude the hearing then, but instead made a direction for the applicant file and serve some further material in support of his amended initiating application.
I completed the hearing of the defended interim application on 28 April, 2023. I delivered oral reasons and orders on 5 May, 2023. I dismissed the applicant’s amended initiating application filed on 31 January, 2023 except in so far as it related to the question of vaccination against COVID-19. I adjourned the final hearing of the question of vaccination against COVID-19 to 27 August, 2023.
Getting that issue to hearing has not been without its difficulties. On 31 March, 2023 the applicant filed a further contravention application in which he alleged that the respondent had contravened certain of the final parenting orders. Seven counts of contravention were alleged against her. That contravention application was listed before a national contravention registrar who, seemingly on her own motion, made an order that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) apply to “the proceedings”. That order was without reference to me who was then seized of the principal application.
Shortly prior to the first allocated hearing date (7 August, 2023) it became apparent that whilst the applicant had secured legal representation pursuant to the cross-examination scheme established for the purposes of s 102NA of the Act, his legal assistance apparently did not extend so far as to permit his legal representatives to appear for him at the trial of the principal proceedings. His assistance only extended to the contravention application. Both the principal proceedings and the contravention application were fixed to be heard by me at the same time. Given that they had not apparently been funded to appear in the principal application, the applicant’s lawyers sought an adjournment so that the funding difficulty could be sorted out.
The hearing of the vaccination issue took place on 15 January, 2024. At the conclusion of the hearing I expressed serious misgivings about the evidence adduced by the parties and how it did not seem to provide any sound basis for a determination of the issue requiring determination. I suggested that I might cause some inquiries to be undertaken with a view to identifying an appropriately qualified person to be appointed a single expert to provide expert evidence on the issue at hand. Those inquiries, however, proved to be fruitless. I subsequently invited the parties to make any further submissions they wished to make in writing by specified dates.
On 24 May, 2024 the respondent filed an application for leave to adduce further evidence. I will deal with that application later in these reasons, but it is necessary to turn to the evidence adduced before me in January, 2024 to give that application some context.
THE EVIDENCE
In the course of preparing the matter for hearing, I made directions for the filing of affidavit evidence by the parties. Affidavits of evidence in chief were to be filed by 4.00pm on 6 October, 2023.
Whilst the applicant filed an affidavit by that time, he did not serve it on the respondent or her legal representatives. Accordingly, it was necessary for him to secure my leave to rely on that affidavit. I declined to grant that leave. Consequently, the applicant identified an earlier affidavit sworn and filed by him on 24 April, 2023 upon which he sought to rely, but only in certain respects (paragraphs 1 – 20, 26 and 27). He also called a witness, Dr K to give oral testimony in support of his case. Dr K was cross-examined.
The respondent relied upon an affidavit filed by her on 24 July, 2023 as well as an affidavit by Dr HH.
The evidence of the applicant and Dr K
The applicant’s evidence is that X is treated by a multi-disciplinary medical team at V Hospital led by paediatrician, Dr K. He swears that Dr K has overseen X's treatment at the hospital since April, 2018.
Part of the applicant’s evidence is a letter dated 15 February, 2022 authored by Dr K. It is in the following terms:
To whom it may concern,
Re [X] (DOB […] 2014)
I am the General Paediatrician caring for [X]. I have been asked to provide correspondence regarding my recommendations with respect to [X] receiving the Pfizer Covid 19 Vaccine.
My advice is to follow the current ATAGI recommendations which are -
•ATAGI recommends vaccination with the paediatric Pfizer COVID-19 vaccine for all children aged 5-11 years.
•Children aged 5-11 years with medical risk factors for severe illness, Aboriginal and Torres Strait Islander children, and children living in crowded conditions or outbreak areas are most likely to benefit from COVID-19 vaccination given their increased risk of severe outcomes and/or exposure.
•While vaccination is recommended for children aged 5 to 11 years, ATAGI does not support restricting the activities of children in this age group who are not vaccinated or have only received one dose.
[X] has a neurodevelopmental condition, which has been shown to be a medical risk factor for severe illness.
[Dr K]
General Paediatrician
[V Hospital]
15/12/2022Dr K’s oral evidence was very clear. She is not an infectious diseases expert and, as she was an employee of Queensland Health at the relevant time and she was required to follow Queensland Health directives, she recommended that the Australia Technical Advisory Group on Immunisation (ATAGI) guidelines be followed. Whilst Dr K considered that the ATAGI guidelines recommended vaccination against COVID-19 for X because he was within a “risk group” identified by the guidelines, she had given no separate consideration to X’s particular circumstances. She gave no consideration to whether, by reason of X’s particular conditions, vaccination was contra-indicated. Dr K’s evidence went no further than the ATAGI guidelines.
Dr J is a specialist who consults at V Hospital. Dr J sees both X and Y outside of the public health system – that is to say, privately. The applicant led no evidence from Dr J although why that was so was not explained. There was evidence from Dr J, produced in a round-about way by the respondent. More of that shortly.
The applicant swears that on 4 February, 2022 the applicant attended an appointment with X at JJ Medical Centre. Apparently, X has attended the clinic since 2018 and doctors at the clinic have treated and managed X's general health until the respondent was granted sole parental responsibility in early 2021. The clinic continues to treat X when he is in the applicant’s care. The applicant swears that on 4 February, 2022 both the respondent (who was on the telephone) and the applicant discussed vaccination with Dr KK, who recommended X receive the COVID‑19 vaccination. Annexed to the applicant’s affidavit is a “medical certificate” from Dr KK in the following terms (errors in the original):
To Whom it May Concern,
re
Mast [X] DOB […] 2014
This patients father [Mr Gabbard] has requested medical recommendations in regards to COVID immunisation for this patient.
As per ATAGI recommendations issued on 8/12/2021 ATAGI recommends vaccination for peadiatric Pfizer COVID-19 vaccine for all children aged 5-11 years.
[Signed]
[Dr KK]
The applicant swears that on 20 January, 2022 he received a phone call from X's then general practitioner, Dr GG of LL Medical Centre. Dr GG was upset because he received a threatening letter from the respondent on 17 January, 2022 in relation to vaccination. The applicant swears that Dr GG informed him that he had consulted lawyers and was no longer able to provide care to X. In subsequent correspondence, Dr GG wrote that he was unable to continue to provide care to X and Y because of “conflicting parental demands” and “constant concern for legal ramifications as a medical practitioner”.
The applicant swears that on 20 January, 2022 JJ Medical Centre also sent to him a copy of communication received from the respondent in relation to the vaccination of the children. By that letter, dated 17 February, 2021 (erroneously dated as to the year, it seems) the respondent purported to withdraw her consent for the children to receive the COVID-19 vaccination. The correspondence, quite unnecessarily and in an inflammatory way, threatens legal proceedings against the Medical Centre should the children be vaccinated against the respondent’s wishes. She wrote similar letters to V Hospital, LL Medical Centre and MM School.
At the hearing before me in January, 2024 the applicant asserted that ATAGI recommended that all people aged 5 years or older are vaccinated to protect against COVID-19. COVID-19 vaccination was recommended for children aged 6 months to under 5 years with severe immunocompromise, disability, and those who have complex and/or multiple health conditions that increase the risk of severe COVID-19. He asserted that for most people, a primary vaccination course consisted of 2 doses. A third primary dose was recommended for people aged 6 months or older with severe immunocompromise.
Further, he asserted that on 8 February, 2023 ATAGI recommended that children and adolescents aged 5-17 years who have medical comorbidities that increase their risk of severe COVID-19, or disability with significant or complex health should consider a COVID-19 booster.
The respondent and Dr HH
The respondent relied upon an affidavit deposed and filed by her on 24 July, 2023. Her evidence about her reasons for refusing to have the children vaccinated are, on their face, self-serving and unimpressive. Despite the clear advice to follow the ATAGI recommendations from Dr K and the view the respondent claims Dr J expressed to her that neither child has a specific contraindication for a COVID-19 vaccination, she relies upon nuances in the words she claims were spoken to her by Drs K and J when she consulted with them to explain away her failure to honour the import of her evidence given in cross-examination before the initial trial judge that she would follow a recommendation to have the children vaccinated against COVID-19. The respondent’s evidence was generally unhelpful.
Dr HH
Dr HH is a pharmacist and general practitioner who practices in City NN, Victoria. He has been a pharmacist since 1989 and a general practitioner since 2005. He swears that he has administered tens of thousands of vaccines.
He has never seen Y or X. Dr HH speaks from his own experience and draws on two journal articles in support of his opinion that the COVID-19 vaccines (any of them) should not be administered to anyone, let alone children. He claims to have seen at least five patients develop myocarditis or pericarditis since COVID-19 vaccination. He now regrets vaccinating his own children. His opinion is that COVID-19 vaccines are more harmful than beneficial in people under 60 years old and that it is riskier for a patient under 60 years old to be vaccinated with a COVID-19 vaccine than to remain unvaccinated.
Dr HH was made aware of X’s medical conditions because he was briefed with a letter from Dr J dated 4 November, 2021. It is addressed “to whom it may concern” and it sets out X’s conditions. According to the letter of instruction from the respondent’s solicitors to Dr HH, the letter from Dr J was written as support for an application funding under the National Disability Insurance Scheme.
Importantly, of X’s medical conditions summarised in Dr J’s letter, Dr HH says:
14.… none of them differentiate [X] from a normal child because his medical conditions do not affect his immune function. For this reason, both the [Gabbard] children can be considered as normal children for the purposes of immunisation. There is no more reason to vaccinate [X] with anything than any other child.
Whilst the corollary of that proposition might be that there is no less reason to vaccinate X with anything than any other child, he goes on to swear that there is no evidence on the safety and efficacy of COVID-19 vaccines for children with X’s conditions.
Dr HH swears that there are low risks for children contracting COVID-19 and comparatively higher risks for taking the vaccine. The basis for that opinion does not appear in his evidence. Dr HH is also not an infectious diseases expert. I give Dr HH’s evidence about generally whether or not it is beneficial to vaccinate children little weight. However, his opinion that, based upon Dr J’s description in his letter referred to above, X’s conditions do not differentiate him from a normal child because his medical conditions do not affect his immune function is important.
THE APPLICATION TO ADDUCE FURTHER EVIDENCE
In her application in a proceeding filed on 24 May, 2024 the respondent seeks leave to adduce evidence of the following documents:
(a)Australia Technical Advisory Group on Immunisation (ATAGI) Clinical Advice Statement on the Administration of COVID-19 Vaccines in 2024 issued on 29 February 2024 and published on 1 March 2023;
(b)Australian Government, Department of Health and Aged Care, Australian Immunisation Handbook: COVID-19 updated on 15 March 2024; and
(c)Australian Government, Department of Health and Aged Care, infographic Recommended COVID-19 vaccine doses as at May 2024.
The respondent filed a supporting affidavit annexing the three documents. The evidence is of a change in the ATAGI recommendations which are summarised in the third document as follows:
(a)Children without risk factors are not eligible for COVID-19 vaccination.
(b)Children aged 5 to 18 with risk factors (including those with conditions that increase the risk of severe COVID-19 illness as per the second document) are eligible for a single primary dose of the vaccine.
(c)People who are severely immunocompromised are recommended 2 primary doses and eligible for a 3rd dose.
(d)Some evidence about boosters which is not necessary to recount here.
The applicant did not file a response to the application in a proceeding, however he addressed it in the course of his written submissions filed 5 June, 2024. Insofar as his submissions sought related orders (such as his request to rely on his affidavit of 6 December, 2023 which had not been admitted into evidence, his reference to the health.gov.au website, or his request that the costs order made in another court of 24 February, 2022 be set aside) that ought to have been the basis of a proper application, I have ignored those submissions.
The applicant complains that he was not personally served with the application in a proceeding or supporting affidavit. He also claims it was not forwarded to him by his then-solicitor and the solicitor was uncontactable so he does not know if it was sent to him.
An application in a proceeding may be served by ordinary service: r 2.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. It is of concern that the applicant does not know if the application in a proceeding was ever served, but it is of little moment because he is clearly aware of the application and has had a chance to respond to it. In any event, he does not oppose the substantive orders sought in the application.
In the course of his written submissions, the applicant clearly states he does not oppose the inclusion of the first document sought to be tendered by the respondent. The applicant also notes that the first document states that it is important to be read in conjunction with the second document. The applicant refers extensively to the second document and I take from that that he does not oppose its admission. The applicant makes no reference to whether he objects or not to the third document. He has clearly had the opportunity to object to it.
The third document is very similar in substance to the others. I take from the lack of objection that the applicant is content for this document to be admitted.
In any event, even without the applicant’s consent to the admission of these documents, having regard to the well-settled principles relating to the reopening of evidence after judgment is reserved (see, e.g., Reid v Brett [2005] VSC 18) I would still allow the evidence to be admitted. That is so because the evidence was clearly not available at the time of the trial, it is material so as to require its admission and it will affect the result of the case (as will become evident from the applicant’s change in position canvassed below). Order 2 of the application in a proceeding will be made.
Lastly, the order sought by the respondent for costs of the application in a proceeding was not supported by any submissions, nor was it grounded in evidence that the respondent had put the applicant on notice of the proposed evidence that she wished to adduce and he had resisted it. That order will be dismissed.
THE PARTIES’ CURRENT POSITIONS
The respondent’s position has remained the same throughout the proceedings: the amended initiating application should be dismissed in its entirety.
The applicant’s position, however, changed in his written submissions filed on 5 June, 2024. He no longer seeks that Y be vaccinated in light of the new ATAGI guidelines. He sought a “thorough risk-benefit analysis for [X’s] COVID-19 vaccination by his treating medical specialists” and an order granting him sole parental responsibility for medical decisions. As set out above, that is far too broad having regard to the determination that I made on 5 May, 2023 and the question before me is limited to whether the children should receive a COVID-19 vaccination.
In support of his orders, the applicant advances two arguments. The first is that X’s needs are complex and he should be subject of a thorough risk-benefit analysis to consider whether he should be vaccinated. The second is that the respondent’s conduct in not taking the children to be vaccinated when the ATAGI recommendation was still to vaccinate children suggests that he should be given sole parental responsibility for the question of vaccination or more broadly their health and medical decisions more generally.
CONSIDERATION
If it is so that X’s condition does not present any more reason to vaccinate than the average child, the ATAGI guidelines are that he should not be vaccinated.
There is no evidence that X’s conditions render him severely immunocompromised. The Australian Immunisation Handbook (which the ATAGI guidelines are to be read in conjunction with) lists conditions for which COVID-19 vaccination may be considered. Amongst those conditions is a “chronic neurological condition”. X’s condition has been described as a neurodevelopmental disorder. What, if any, difference lies in the two terms is not clear on the evidence. There is evidence that X sees a treating neurologist. There is also evidence in the respondent’s affidavit filed on 24 July, 2023 at paragraph 50 where she sets out that Dr J said to her solicitors on 15 June, 2023 that:
My recommendations regarding COVID-19 vaccination for children are in line with that of The Australian Technical Advisory Group on Immunisation (ATAGI) recommendations as indicated in the attached link. At this stage, I do not feel that either children have a specific contraindication for a COVID-19 vaccination.
Dr J’s letter is annexed to her affidavit.
There is no evidence that at any time any of X’s treating medical practitioners thought that his medical conditions had a bearing on the need for him to be vaccinated against COVID-19. All of the evidence in favour of vaccination was premised upon the basis that the ATAGI guidelines recommended vaccination unless it was contraindicated and it was not contraindicated for X. Nor is there any suggestion in what constitutes the medical evidence in this case, that X’s medical conditions meant that he had a higher need for vaccination than any other child without his conditions.
X has not yet been the subject of a risk-assessment to determine whether he should receive a COVID-19 vaccination. The respondent suggests that as a result there is not enough evidence to support an order either requiring X’s vaccination or disturbing the order for sole parental responsibility in her favour. I agree.
However, the applicant’s position has changed to one advocating for a risk assessment for X. I do not consider on the evidence that one is necessary. Were one thought to be necessary by Dr J or Dr K, it would have been recommended. There is no evidence that any has been recommended.
The lack of risk assessment is a point on which the applicant is very critical of the respondent and one, he says, which speaks to her capacity to exercise parental responsibility relating to COVID-19 vaccinations. He also identifies what he describes as the severing of relationships with the children’s past treating practitioners and her willingness to seek advice on COVID-19 vaccinations from doctors who have never seen the children.
In the trial that took place in the Federal Circuit Court of Australia, the judge at first instance made the following comments (footnotes omitted):
53The mother was not supportive of vaccinating the children initially. Judge Middleton made a consent order on 4 September 2019 amended 10 September 2019 that provided:
3. That within 7 days the mother attends on [Dr S] and obtains the proposed immunisation schedule for both children.
4. That within 14 days the mother provides the proposed immunisation schedule to [Dr J], [X’s] treating Paediatrician.
5. That once [Dr J] has approved the immunisation schedule, the immunisation of the children shall commence forthwith and both children shall complete the immunisation schedule, in the absence of an emergent issue and/or advice from the child, [X’s], treating Paediatrician.
6. That in the event that [Dr J] does not approve the immunisation schedule proposed then all parties shall adhere to the alternate immunisation schedule proposed by [Dr J].
7. That both parties shall adhere to all treatment recommendations and directions of [Dr J], including but not limited to new proposals for treatment of [X].
54The mother was very resistant to the immunization despite very firm advice from medical specialists that supported the need for [X] in particular to be immunized:
Contacted by Nurse Practitioner from […] Immunisation Services due to ongoing conflict between parents regarding immunisation of [X].
NP advised there were Family Law Court orders in place that allowed both parents to provide consent for medical procedures and on two occasions, mother had attended Immunisation Clinic appointments and obstructed [X] from receiving his vaccinations. NP advised [X] had a medical history which left him at risk of rapid deterioration if he becomes unwell placing him at an increased risk of harm compared to peers without co-morbidities.
NP also advised mother is aware of risk to [X] following multiple discussions.
Lengthy discussion with the CPFMS team and advice was as follows:
•Father should be encouraged to pursue court orders allowing him to vaccinate [X], despite mother’s objections.
•In the event that father is unwilling to do this, or the risk t [X] is deemed too imminent to await court proceedings, a report to Child Safety may be warranted due to his increased risk compared to peers.
•QSIS should discuss this matter with the [V Hospital] Legal team to determine if the Health Service is able to vaccinate with paternal consent, despite mother’s objections.
•NP advised she would discuss the level of risk [X] would experience if he was to await his father to proceed matters through the Family Law Court and father would be encouraged to pursue legal documentation from the Court, authorising vaccination.
55 [Nurse EE] wrote to [X’s] treating doctors:
I write today as I have concerns that [X’s] mother is obstructing our service delivering care to [X]. There have been two occasions within the last week that [X’s] father has brought [X] to the Immunisation Centre (2g) requesting vaccination for [X]. [X’s] father was assessed as having the legal capacity to provide the consent and was assessed as acting in [X’s] best interests. There were no identified legal orders that prevented [X’s] father providing this consent. On both occasions [X’s] mother arrived and prevented vaccination from occurring.
I have discussed with CPFMS my concerns that [X’s] mother is obstructing care. They have suggested that the father pursue court orders to support compliance with vaccinations. However, a child safety report could be warranted if it was demonstrated that [X] was at increased risk of harm (compared to his peers) as a result of his mother obstructing care.
As his primary treating Physicians what are your thoughts around his health risk due to his underlying medical conditions if he were to remain unvaccinated and contract a vaccine preventable disease? Do you feel these health risk warrant a child safety report?
56I consider this failure by the mother to promptly vaccinate [X] posed a risk to the child. I note however by the time it came to court in October 2019 the mother had consented to the vaccination.
…
79I accept the mother was hesitant to immunize the children and this posed a risk to [X] in particular. However the Court order was a consent order by the parents to immunize the children.
The first point to make about all of this is that COVID-19 vaccinations aside, the children have both had all of their other childhood vaccinations in line with advice given by Dr J.
The respondent’s unchallenged evidence before me was that she did intend to get the children vaccinated against COVID-19 (prior to the creation of the vaccine), but changed her mind due to the nature of the vaccine and information she received. Her evidence was that she took a considered approach and acted in (what she believed) were the best interests of her children.
Whilst the respondent’s approach to vaccination might been seen as some as a concern, it cannot be said that she lacks the capacity to exercise sole parental responsibility in respect of these medical decisions. She has taken advice, albeit advice with which the applicant does not agree, and has made her decisions taking into account that advice. The best indicator of what X requires, in my view, is Dr J’s opinion which, at best, is equivocal and leaves it to parents to make the decision. Here, that means that it is a decision for the respondent given the order for sole parental responsibility.
I do not consider that there is any reason to disturb the order for sole parental responsibility even if that was a matter within the parameters of the present inquiry.
CONCLUSION
The applicant’s case for an order that the children receive COVID-19 vaccinations has been abandoned. Insofar as he seeks an order that X undergo a risk assessment to determine whether he should be vaccinated against COVID-19, the evidence does not persuade me that such an order is necessary. The ponderance of the evidence from Dr J and Dr HH is that X’s condition does not suggest that he should be treated as anything other than a normal child. The respondent, as the parent of the children with sole parental responsibility for decisions concerning, amongst other things, their health, is best placed to make decisions concerning the need for the immunisation of the children against COVID-19.
The residuary of the amended initiating application filed on 31 January, 2023 is dismissed.
Finally, in paragraph 10 of her written submissions delivered on 29 May, 2024 the respondent seeks an order that the applicant “be restrained from causing, facilitating or allowing the children to be vaccinated against Covid-19 without the prior written consent of the Mother”. This order is not sought in the respondent’s amended response filed on 19 January, 2023 or in any other document relied upon in this application. It is inappropriate for such a claim to be included at such a late stage of the proceedings and without proper notice of it to the applicant. I have not considered it.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 31 July 2024
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