Gabbard & Kelleher

Case [2024] FedCFamC1F 508

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:

  1. 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.

  2. 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…

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AGLC
Gabbard & Kelleher [2024] FedCFamC1F 508
Case
[2024] FedCFamC1F 508
Decision Date

CaseChat Overview and Summary

The case of Gabbard & Kelleher involves a dispute between the parties regarding the decision on whether it is in the children's best interests to be vaccinated against COVID-19. The Federal Circuit and Family Court of Australia was tasked with determining the appropriate course of action based on the existing medical evidence and guidelines. The primary legal issues the court had to address were whether a risk assessment was necessary for the child with a rare medical condition and whether the respondent's conduct warranted a change in the existing sole parental responsibility order in favour of the applicant.

The court meticulously reviewed the evidence presented by both parties, including expert medical opinions and the Australian Technical Advisory Group on Immunisation (ATAGI) guidelines. The applicant argued for a comprehensive risk-benefit analysis for the child with a neurodevelopmental disorder, suggesting that the ATAGI guidelines alone were insufficient. The respondent, however, maintained that the existing guidelines were adequate and that the child's condition did not necessitate a separate risk assessment. The court found that the evidence did not support the need for a risk assessment, as there was no indication that the child's condition rendered him more susceptible to COVID-19 than an average child. Additionally, the court noted that the ATAGI guidelines themselves did not recommend vaccination for children without specific contraindications, and there was no evidence suggesting that the child's conditions were such contraindications.

Furthermore, the court examined the respondent's conduct regarding the children's vaccination and concluded that there was no valid reason to disturb the existing order granting the respondent sole parental responsibility for major long-term decisions, including those related to health and medical care. The court dismissed the application seeking an order for the children's vaccination and also dismissed other ancillary claims brought by the respondent, deeming them inappropriate due to lack of proper notice to the applicant.

In conclusion, the court upheld the order for sole parental responsibility with the respondent, finding no grounds to alter the existing arrangement based on the evidence presented. The court's decision was grounded in the lack of compelling evidence to suggest that the child's condition necessitated a deviation from the standard vaccination guidelines, and there was no indication that the respondent's conduct warranted a change in parental responsibility. The application was dismissed, and the existing parenting orders remained in place.

Orders

Orders of the court

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.

Background

Background to the litigation

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 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.

Evidence

Evidence Before The Court

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]15/12/2022 Dr 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 […] 2014This 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]

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.