Garza & Hammill

[2022] FedCFamC1A 142

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Garza & Hammill [2022] FedCFamC1A 142  

Appeal from:

Garza & Hammill [2022] FedCFamC2F 485

Appeal number(s):

NAA 99 of 2022

File number(s):

SYC 1392 of 2022

Judgment of:

AUSTIN J

Date of judgment:

8 September 2022

Catchwords:

FAMILY LAW – APPEAL – Parenting – Principles in Rice and Asplund (1979) FLC 90-725 – Where the primary judge dismissed the father’s application for fresh parenting orders – Whether the primary judge correctly applied principle – Where the father conflates evidence with submissions – Whether the primary judge ignored or disregarded the submissions made by the father – Where the primary judge was familiar with the father’s material and submissions – No error identified – Appeal dismissed – Costs ordered in a fixed sum.

Cases cited:

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Searson & Searson (2017) FLC 93-788; [2008] FamCAFC 16

SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16

Number of paragraphs:

33

Date of hearing:

8 September 2022

Place:

Newcastle (via video link)

The Appellant:

Self-represented litigant

Solicitor for the Respondent:

Legal Aid Newcastle

ORDERS

NAA 99 of 2022
SYC 1392 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR GARZA

Appellant

AND:

MS HAMMILL

Respondent

order made by:	AUSTIN J
DATE OF ORDER:	8 September 2022

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $1,980.

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).

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

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. This appeal is brought from the decision made on 12 April 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 2), reflected in these two orders:

   1.Order 12 of the Orders of 12 March 2022 restraining the mother from causing any COVID-19 booster vaccines to be administered to [the child] born [date] is discharged.

   2.The father’s Application filed 4 March 2022 is dismissed and the proceedings are removed from the Active Pending Cases List.

2. As can be seen, the second order dismissed the father’s application for fresh parenting orders, filed a month beforehand in March 2022, and the first order discharged an interim injunction made about a week afterwards whilst the father’s fresh application was still pending.

3. The Initiating Application filed by the father had sought orders in these terms:

   •Orders identical to the present Orders but with an added sentence of:

   •“[The child] cannot be given an mRNA or a Viral Vector mRNA vaccine or medical treatment unless both parents discuss and consent to it.”

   (As per the original)

4. The “present Orders” in relation to the subject child, to which the father’s application for relief refers, were those made consensually on 11 January 2019 by Loughnan J, providing for the mother to have sole parental responsibility for the child, for the child to live with the mother, and for the child to spend limited amounts of time with the father.

5. It will be immediately understood that the new order sought by the father was repugnant to the existing order conferring the mother with exclusive parental responsibility for the child, investing her with the authority to unilaterally decide if, when and how the child would be vaccinated.

6. The primary judge well understood the central issue, because it was stated at the outset of the reasons for judgment in these explicit terms:

   4.The mother seeks the dismissal of the application, arguing that there has not been a sufficient change of circumstance to warrant reopening the issue of parental responsibility.

7. Given the father’s fresh application could be entertained within a month of it being filed, the mother agreed to submit to an interim injunction restraining her from causing the child to have any further vaccination pending the hearing before the primary judge in April 2022.

8. Unexceptionally, a threshold hearing was conducted to determine whether or not the evidence satisfied the principles established by Rice and Asplund (1979) FLC 90-725.

9. The father contended several significant changes had occurred since the orders were last made in January 2019, which warranted the additional order he sought. The primary judge recorded the asserted changes to be these: the existence of the COVID-19 pandemic; the approval of vaccines by health authorities on only a provisional basis; and the mother allegedly taking a cavalier approach to the child’s health by causing her to be vaccinated twice in January and March 2022 without consulting him (at [11], [13], [21] and [23]).

10. The primary judge was unconvinced that the changes asserted by the father, with his evidence being accepted at its highest, justified interference with the existing order allocating the mother with sole parental responsibility. Her Honour concluded:

    34.I am not satisfied that there are changed circumstances that warrant a rehearing of the matter or even a small consideration of the discrete issue of parental responsibility for COVID-19 vaccines, especially in circumstances where the child has already received her first two vaccinations.

    …

    37.The father seeks an order that requires the parties to discuss and consent to mRNA vaccines or mRNA medical treatment. This causes me to consider the impact of such an order if the application proceeds in circumstances where these parties have already been before the Court for over seven years of [the child’s] 10 years.

    38.Whilst the father does not consider himself to be anti-vaccination, he is not satisfied that this vaccination is in [the child’s] best interests. He is entitled to form that view, but the orders he seeks essentially means that the parties will continue to be in conflict about vaccination treatment for [the child]. This is exactly why it was determined to be in [the child’s] best interests in 2019 that an order be made allocating the mother with sole parental responsibility.

    39.It is clear that the father has dedicated an enormous amount of time to researching the impact of COVID-19 vaccines on children. There may be some individual cases where, ultimately, the Court concludes that the risks arising from the vaccine treatment outweigh the benefit for a particular individual. However, this is not such a matter and this is not a case where I have to undertake such a risk assessment. The mother was allocated sole parental responsibility, and there is no evidence before me that suggests she has exercised it poorly. She may not agree with the father’s approach or views, but that does not mean she has made decisions for [the child] that are ill-informed or inappropriate.

11. Accordingly, the father’s application was dismissed and the interim injunction was discharged.

    The Appeal

12. Although the father pleaded five grounds of appeal, there were really only two: first, the primary judge did not apply the “Rice & Esplund test” (sic) to the evidence that was adduced (Ground 3); and secondly, the primary judge ignored his arguments and submissions, such that his application was not heard on merit (Grounds 1, 2, 4 and 5).

13. The father was ordered to file and serve his Summary of Argument by 20 July 2022, but he did not deign to do so until 23 August 2022. He was permitted to rely upon the written submissions despite his default because the mother could claim no prejudice. She filed her Summary of Argument on time, without needing to see what submissions were made by the father, but still had time within which to consider the father’s submissions in advance of the hearing.

    Ground 3

14. This complaint is that the primary judge did not correctly apply the Rice v Asplund principles.

15. There can be no doubt at all that the primary judge was conscious of the legal principles which needed to be applied, as they were correctly recited in the reasons for judgment (at [20]).

16. After noting the legal principles, the primary judge proceeded to analyse the evidence and to synthesise it with such principles. The primary judge reached a conclusion with which the father disagrees, but that does not manifest any failure to apply correct legal principles.

17. The father submitted:

    First of all [the primary judge] has to accept my submissions are correct. Clearly relegating most of my submissions as non existant by giving them no mention in the Judgment is not the application of this first principle taking the evidence “at its highest” and this was the first mistake. (sic)

    ...

    Under the “Rice v Esplund” test, Her Honor ignoring most of my submissions and not taking them “at their highest”, meant that the determination of my childs “best interests” and the competing factor of the “need to revisit the orders” was not properly determined, so the subsequent deliberations leading to the Judgment was flawed. (sic)

    …

    In the beginning, her Honour correctly identified The material that I relied on and she should have taken the submissions in both my affidavits and my Outline of Case document “at its highest”. (sic)

    (As per the original)

18. The submissions are rejected. Conducted as a threshold hearing without cross-examination, the parties’ evidence was untested. The father’s evidence therefore had to be accepted at its highest (SPS & PLS (2008) FLC 93-363 at [81]; Searson & Searson (2017) FLC 93-788 at [11]), but not his submissions. None of the father’s evidence was rejected. It was only his submissions which found no favour. This ground fails.

    Grounds 1, 2, 4 and 5

19. The complaint which is integral to each of these grounds is that the primary judge ignored or disregarded the submissions made by the father in support of his application.

20. The complaints are demonstratively false. The father prepared an Outline of Case Document on 11 April 2022, which was before her Honour.

21. At the hearing, the following discourse ensued:

    HER HONOUR: All right. [To the father], let me just check with you. I’ve got a bundle of documents in front of me, but what I understand is you filed an outline of case document today. Is that right?

    [THE FATHER]: Yes. I filed it yesterday. I’m sorry I’m late, but this is the hardest thing I’ve had to do in my life. I feel like I’m sitting for HSC.

    HER HONOUR: Well, look, [to the father], if it’s of any consequence, I thought, for a self-represented litigant, you’ve done a very good job of navigating your way around the court documents, so well done to you. I can see that you’ve also looked at the law, which is always helpful, and provided a good summary of arguments. …

    …

    HER HONOUR: And, [to the father], I will just explain to you what I’m saying. The matter was listed today for a Rice & Asplund argument. It’s called a threshold argument. We spoke about it last time when the matter was before the court and I can see you understood because you’ve read the law on Rice & Asplund and you’ve made – you’ve made a range of submissions – but that’s the focus of today, sir. If we – if the case meets the threshold and we then move on to consider the orders that you’re seeking, I will ask you whether we’re going to do that today or whether we allocate some time on another day.

    [THE FATHER]: Okay.

    …

    HER HONOUR: … [I]f there’s anything else you need to say beyond what is already written in the documents. I don’t need you to repeat what’s written, because I can assure you I’ve read it, and I will consider it.

    …

    [THE FATHER] … Yes. Look, we – I assume you have read my outline of case document.

    HER HONOUR: Yes.

    [THE FATHER]: Okay. Have you also read the arguments in the affidavit?

    HER HONOUR: I beg your pardon, I couldn’t hear you …

    [THE FATHER]: Have you – have you also read the recent affidavit?

    HER HONOUR: Yes, I have, sir. Yes, I have.

    [THE FATHER]: Okay. Thanks. Okay. That’s all I need. Okay.

    HER HONOUR: Yes. No, absolutely.

    [THE FATHER]: Okay.

    (Transcript 12 April 2022, p.3 lines 6–16; 38–47; p.5 lines 9–11; p.6. lines 7–24)

22. It must follow that the primary judge was familiar with the material upon which the father relied and the submissions he made.

23. The hearing was then stood down to allow the mother’s representative to read the documents recently filed by the father. Upon resumption, the primary judge explained regular procedure to the father and then this exchange followed:

    HER HONOUR: [To the father], do you have any questions about that process?

    [THE FATHER]: No, I’ve got nothing more to say. I’m more interested in seeing – sorry, in hearing what [the solicitor for the mother] has to say and then I can give my comment about that, yes.

    …

    [THE FATHER]: Look, it is not necessary for me to read my argument about Rice & Asplund, is it? No. I mean, I will read it for you if you want, but - - -

    HER HONOUR: No. I can assure you I’ve read it all and if I have any questions about it, I will ask you.

    [THE FATHER]: Okay. Okay. Yes. Look, I do have additional comments about the Rice & Asplund issue and then what I will do is I want to reply to the outline of case document submitted by [the solicitor for the mother]. Is that okay?

    HER HONOUR: Yes. Yes, of course.

    (Transcript 12 April 2022 p.7 lines 37–41; p.11 lines 11–21)

24. That was precisely the procedure which was then followed. The father made further oral submissions, followed by submissions made by the mother’s lawyer, followed by the father making further oral submissions in reply.

25. At the conclusion of such submissions, the primary judge said this:

    HER HONOUR: Yes, all right. Look, I think that’s – you’ve both presented very comprehensive summaries of your positions. …

    (Transcript 12 April 2022,  p.27 lines 12–13)

26. Even after that, the father and the mother’s lawyer had more things to say.

27. The primary judge adjourned at 12.57 pm and, upon resumption at 2.36 pm, gave ex tempore reasons for judgment and pronounced the orders. The orally delivered reasons were later settled into written form.

28. It will therefore be plain how the submissions made by the father were neither ignored nor disregarded – they simply failed to persuade the primary judge. The father appears to confuse those two quite different things.

29. The submissions made by the father in the appeal reveal his criticism of the primary judge for not specifically mentioning in the reasons for judgment all of the reasons he had advanced for why the child should not be vaccinated, but that approach betrays his misunderstanding of the problem confronting the primary judge.

30. Her Honour was not making a decision about whether or not the child should be vaccinated. Rather, her Honour was only deciding if material changes had been demonstrated so as to warrant a further hearing about whether another order should be made to vary or override the mother’s existing exclusive parental responsibility for the child. Whilst ever she held exclusive parental responsibility, it was her decision about whether or not the child was vaccinated. The father might have perceived the controversy to be about the child’s vaccination, but the real controversy was whether the mother should be able to retain and exercise her sole parental responsibility for vaccination decisions related to the child.

31. These grounds fail.

    Conclusion

32. The appeal fails for lack of merit.

33. The respondent was represented in the appeal by a solicitor employed by Legal Aid NSW and was the recipient of a grant of legal aid in the sum of $1,980 for the appeal. The respondent sought a costs order against the appellant for that sum, which she should have. The appeal was wholly unsuccessful and should not have been brought.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       12 September 2022