Garza & Hammill
[2022] FedCFamC2F 485
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Garza & Hammill [2022] FedCFamC2F 485
File number(s): SYC 1392 of 2022 Judgment of: JUDGE BECKHOUSE Date of judgment: 12 April 2022 Catchwords: FAMILY LAW – PARENTING – Where there is an order for sole parental responsibility - Where the father seeks to vary the sole parental responsibility order in relation to the administration of COVID-19 vaccines and treatments – Where the father could not establish a material change in circumstances pursuant to the principles in Rice & Asplund (1979) FLC 90-725 - Application dismissed Legislation: Family Law Act 1975 (Cth) Cases cited: Cranston & Persson (No 2) [2022] FedCFamC1F 187
Lamos & Radin (No 2) [2022] FedCFamC2F 167
Lund & Lund [2018] FamCAFC 112
Poisat & Poisat (2014) FLC 93-597
Palange & Kalhoun [2022] FedCFamC2F 149
Rice & Asplund (1979) FLC 90-725
Division: Division 2 Family Law Number of paragraphs: 40 Date of hearing: 12 April 2022 Place: Sydney Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Ms Weber ORDERS
SYC 1392 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GARZA
Applicant
AND: MS HAMMILL
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
12 APRIL 2022
ON A FINAL BASIS THE COURT ORDERS THAT:
1.Order 12 of the Orders of 12 March 2022 restraining the mother from causing any COVID-19 booster vaccines to be administered to X born in 2011 is discharged.
2.The father’s Application filed 4 March 2022 is dismissed and the proceedings are removed from the Active Pending Cases List.
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 a pseudonym Garza & Hammill has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
These are settled reasons for judgment that were delivered ex tempore on 12 April 2022. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references included.
The applicant father seeks to vary final parenting orders that were made by consent on 11 January 2019. In those orders, sole parental responsibility for the child X, who is now 10 years old, was allocated to the mother.
Specifically, the father asked the Court to make the following order:
That X cannot be given an mRNA or a viral vector mRNA vaccine or mRNA medical treatment unless both parents discuss and consent to it, and this condition does not apply if there is a declared outbreak and my child is deemed by the appropriate medical government authority a class of persons who is at elevated risk of the particular disease and there is no TGA approved non-mRNA alternative medical treatment.
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.
BACKGROUND
The parents are Ms Hammill, who is the respondent, and Mr Garza, who is the applicant. They will be referred to as the mother and father.
The mother and father were in a relationship from around 2010 to around 2011, during which time X was conceived.
X was born in 2011. The mother has been the sole carer for X since she was born, and the father has regularly spent time with X since her birth under supervision.
On 19 January 2019, the Family Court of Australia made consent orders. Those orders provided for the following:
(a)That the mother have sole parental responsibility for X.
(b)That X live with the mother.
(c)That X spend time with the father at various times as supervised by the mother or her nominee until X attains the age of 12 years.
(d)That each party is entitled to obtain directly from any doctor or health or welfare professional or other professional attended by the child copies of any reports, notices or other relevant verbal or written advice affecting the health and welfare of the child. For this purpose, each party shall immediately notify the other of the names and contact details of any relevant doctor or health or welfare professional and keep the other party so informed.
On 11 February 2019 X was diagnosed with ADHD.
In February 202 she was diagnosed with a medical condition, a disease affecting her knees.
On 13 January 2022 X received her first dose of the Pfizer paediatric vaccine for children aged between five and 11 years old.
On 4 March 2022 the father filed an application seeking orders restraining the mother from administering the mRNA vaccine to X. The matter came before a Judicial Registrar on 7 March 2022 but the mother had not been served. An Affidavit of Service indicates the mother was served late on 8 March 2022.
On 9 March 2022 X received her second dose of the Pfizer vaccine.
On 21 March 2022 the matter came before me, and directions were made for a hearing of the Rice & Asplund matter.
As indicated, trial directions were made by Judicial Registrar Cartwright on 14 March 2022. At the time, it was noted that X had already received her COVID-19 vaccinations. On that occasion, the mother agreed to an order restraining her from causing any COVID-19 booster vaccines to be administered to the child. It was, however, noted that should boosters become available for five to 11 year olds, pending a determination, the mother be at liberty to relist the matter.
The matter was first listed before me on 21 March 2022 for the purposes of allocating hearing time. Following discussions with the parties, it was listed today on the Rice & Asplund threshold issue (which concerns whether there has been any change in circumstance since the final orders of Loughnan J made on 11 March 2019). On that occasion, both parties were unrepresented but were provided with procedural advice. They were also encouraged to obtain legal advice and referred to the duty lawyer services for this purpose. Pleasingly, the mother has secured legal representation, and the father has accessed the documents that the Court required him to complete, has read the relevant case law, and for the most part has complied with the trial directions made.
The matter proceeded electronically today by way of written and oral submissions.
DOCUMENTS RELIED UPON
The father sets out in his Case Outline document the documents that he relies upon. Essentially, they are the affidavit of Mr Garza filed on 4 March 2022 as well as a range of documents which are listed in the Case Outline document and included by way of annexures.
The mother relied on the following documents:
(a)Affidavit of Ms Hammill filed 4 April 2022;
(b)Affidavit of Ms Hammill filed 18 March 2022;
(c)Affidavit of Mr B filed in previous proceedings on 15 February 2018; and
(d)Child Responsive Program Memorandum dated 17 December 2015.
THE LAW
The need to determine whether there has been a change of circumstances before reopening parenting proceedings is one which arises as a result of the principle set out by the Full Court in the case of Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”). If determining the matter at a preliminary stage, as is the case here, the Court must take the father’s case at its highest and proceed on the basis that the evidence produced by him is correct.[1] This does not mean that it should be received uncritically.[2] I am required to consider whether the best interests of the child outweigh the need to revisit the orders, and in doing so, the Court must look at three things:
(1)Firstly, the past circumstances including the reasons for the decision and the evidence upon which it is based;
(2)Secondly, whether there is a likelihood of orders being varied in a significant way as a result of the new hearing; and
(3)Thirdly, the nature of the likely changes must be weighed against the potential detriment to the child caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[1] Poisat & Poisat (2014) FLC 93-597
[2] Lund & Lund [2018] FamCAFC 112, [22]-[23].
WHAT ARE THE CHANGED CIRCUMSTANCES AND ARE THEY SUFFICIENT TO WARRANT A REHEARING?
The father contends that the significant changes since the making of the consent orders three years ago are:
(a)The COVID-19 pandemic and the development of a vaccine that has been provided with provisional approval only.
(b)A risk assessment would lead us to conclude that there is more harm to X from receiving the vaccine than any potential benefits because she is a healthy child with no underlying medical conditions.
(c)The mother, in his view, has taken a cavalier approach to X’s health when she exercised parental responsibility by having two doses of the COVID mRNA vaccine administered to her without his consent and without adequate consultation with him.
The mother contends that there have been no significant changes since the making of the consent orders that would lead the Court to find that amending the current parenting orders would be in X’s best interests.
She deposes that there is no evidence before the Court to suggest that she has exercised her parental responsibly for X inappropriately or, indeed, that the father has been critical of the manner in which it has been exercised (apart from on the COVID-19 vaccination issue). The father agreed with this when asked.
The mother deposed that the decision she took to have the vaccine administered to X was an informed one based on the following:
(a)There are a high number of positive COVID-19 cases at X’s school which led to X being home-schooled.
(b)She arranged for X to receive her vaccinations having considered the advice of the New South Wales Health Department, X’s doctor, Dr C, and public health orders.
(c)X did not suffer any side effects associated with receiving the Pfizer five to 11 year old vaccinations.
(d)She further argues that X is not suffering from any type of ill health or illness that would have necessitated a change to the current orders for sole parental responsibility.
WHAT IS THE MAGNITUDE OF THE CHANGES TO THE ORDERS SOUGHT?
The father bears the onus to establish a cogent argument for the variations he seeks.
The degree to which the principle in Rice & Asplund might be applied will vary according to the magnitude of the change sought by the applicant. If small in nature, any benefit may be outweighed by the disruption and distressed caused to the child and the other party.
In this case, the disruptions are potentially small. The parties are not attempting to re-agitate issues previously litigated. The father’s application involves a new issue. Indeed, the mother herself concedes that the issue of whether the child can receive an mRNA vaccine is a discrete issue of parental responsibility.
WHAT ARE THE IMPACTS ON THE CHILD IF THE APPLICATION PROCEEDS?
If leave were granted, and the matter was to proceed to final hearing, it would likely involve X’s participation in a medical report, possibly a further Child Impact Report, and further exposure to the parental conflict. I also note that there has previously been an Independent Children’s Lawyer.
The father was circumspect about X’s further exposure to the parental dispute. He was of the view, if unsuccessful, he would understandably be disappointed, but he would move on.
X has already received two vaccinations. This case becomes one about whether the mother should make decisions about whether a booster is administered to her or not.
It seems to me that this is a rather small decision which lacks sufficient benefit to compensate X for the disruption caused by re-litigation.
CONCLUSION
The father referred me to the decision of Judge Smith, as he then was, in the decision of Palange & Kalhoun [2022] FedCFamC2F 149. He argued that the Court ignored any Rice & Asplund threshold issue in that case, as I should here. These two cases have to be distinguished, however. In that case, the parties had an order to share parental responsibility. As a result of an impasse they had reached about the administration of an mRNA vaccination to the children, the Court was asked to make a determination. Here, the Court is faced with a very different situation. The mother has been allocated sole parental responsibility already.
This was the position taken by Judge Hughes in the case of Lamos & Radin (No 2) [2022] FedCFamC2F 167. In that matter, orders had previously been made allocating sole parental responsibility for an 11 year old child. Judge Hughes therefore declined to make specific orders about the child’s vaccination because she was satisfied that the parent exercising sole parental responsibility could be trusted to make sensible decisions in relation to their child’s health and welfare. Notably, that approach was recently confirmed by the Deputy Chief Justice in the case of Cranston & Persson (No 2) [2022] FedCFamC1F 187.
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.
It is clear that the parties have different views about medical treatment for X, and this goes beyond vaccinations. The mother asked me to have regard to the Child Responsive Program Memorandum prepared in December 2015. Whilst the document could be described as historic, it does record that the family has a complex history involving the participation of child protection authorities. The Memorandum raises concerns about the parties’ ability to co-parent, and one assumes this was one of the reasons for the order allocating sole parental responsibly for X to the mother.
The mother sets out in her affidavit the divergent views between the parties about the treatment for X’s diagnosis of ADHD. The father gave evidence about his concerns about the prescription of the drug Ritalin. He also gave interesting evidence about whether X had suffered COVID-19 in 2021. He was of the view that she was symptomatic, and his personal research led him to conclude that she had contracted the virus notwithstanding that she had not returned a positive test result.
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 X’s 10 years.
Whilst the father does not consider himself to be anti-vaccination, he is not satisfied that this vaccination is in X’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 X. This is exactly why it was determined to be in X’s best interests in 2019 that an order be made allocating the mother with sole parental responsibility.
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 X that are ill-informed or inappropriate.
Accordingly the father’s Application is dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 14 April 2022
0
4
0