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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Garza & Hammill

Details

AGLC: Garza & Hammill [2022] FedCFamC2F 485
Case: [2022] FedCFamC2F 485
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr. Garza sought to modify final parenting orders concerning his daughter, X, born in 2011, focusing on the administration of COVID-19 vaccines and treatments. The existing orders, made by consent on 11 January 2019, granted the mother, Ms. Hammill, sole parental responsibility. The father's application, filed on 4 March 2022, requested that X could not receive mRNA or viral vector mRNA vaccines or treatments without both parents' consent, with certain exceptions. The mother opposed the application, asserting that no material change in circumstances had occurred to warrant reopening the issue of parental responsibility. The legal issues before the court involved determining whether there had been a sufficient change in circumstances to justify altering the existing parenting orders and assessing the impact of such changes on the child.

Judge Beckhouse examined the application under the principles established in Rice & Asplund (1979) FLC 90-725, which requires a material change in circumstances before reopening parenting proceedings. The father argued that the COVID-19 pandemic and the provisional approval of the vaccine constituted significant changes. He also claimed that the mother had acted irresponsibly by vaccinating X without his consent. In contrast, the mother maintained that there were no significant changes since the consent orders and that she had made informed decisions based on health advice and public health orders. She further argued that X had not suffered any adverse effects from the vaccinations.

The court considered the magnitude of the changes sought and the potential impacts on the child if the application proceeded. Given that the mother already had sole parental responsibility and X had already received two vaccinations, the court found that the potential benefits of the changes sought were outweighed by the disruption and distress to the child and the other party. The court was also mindful of the history of conflict between the parties and their differing views on medical treatment for X. Ultimately, Judge Beckhouse concluded that there were no changed circumstances warranting a rehearing, and dismissed the father's application. The court ordered that the restraining order on administering COVID-19 booster vaccines be discharged, and the proceedings were removed from the Active Pending Cases List.

Orders