Kafler & Magnan
[2022] FedCFamC2F 198
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kafler & Magnan [2022] FedCFamC2F 198
File number(s): MLC 8302 of 2020 Judgment of: JUDGE HOWE Date of judgment: 16 February 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – where Father opposes COVID-19 vaccination – where Mother supports COVID-19 vaccination – orders made for Mother to have sole parental responsibility for medical decisions including COVID-19 vaccination Legislation: Family Law Act 1975 (Cth) ss 60CC(2), 60CC(2)(a), 69ZL, 102NA Cases cited: Eaby & Speelman [2015] FamCAFC 104
Goode & Goode [2006] FamCA 1346
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Division: Division 2 Family Law Number of paragraphs: 22 Date of last submission/s: 16 February 2022 Date of hearing: 16 February 2022 Place: Melbourne Advocate for the Applicant: In Person Advocate for the Respondent: In Person Solicitors for the Independent Children’s Lawyer Barbayannis Lawyers ORDERS
MLC 8302 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAFLER
ApplicantAND: MR MAGNAN
RespondentINDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE HOWE
DATE OF ORDER:
16 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Until further order the Mother have sole parental responsibility regarding medical decisions, including the COVID-19 vaccine, for X born in 2010.
2.The Mother be and is hereby authorised to provide a copy of these orders to any medical general practitioner or other vaccination provider.
3.The Application in a Proceeding filed by Ms Kafler on 10 February 2022 be and is hereby dismissed
4.The Response to an Application in a Proceeding filed by Mr Magnan on 15 February 2022 be and is hereby dismissed.
5.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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 Kafler & Magnan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE HOWE
This is an interim hearing and accordingly shorter reasons are permitted pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”). In the matter that comes before me today, I have to determine two very discrete issues for the child X born in 2010 (“X”). The Applicant Mother filed an Application in a proceeding on 10 February 2022. Her Application was supported by an affidavit filed 10 February 2022. The Mother is seeking to have X vaccinated with the COVID-19 vaccination and she also seeks an order pursuant to section 102NA of the Act.
The Respondent Father filed a Response to an application in a proceeding on 15 February 2022. His Application was supported by an affidavit filed 15 February 2022. The Father is seeking that he be permitted to commence unsupervised telephone communication and written communication with X. He also opposes any order allowing X to be vaccinated with the COVID-19 vaccination.
The Court was also assisted on this day by an Independent Children’s Lawyer. It was the view of the Independent Children’s Lawyer that:
(a)the Mother should be permitted to have X vaccinated with the COVID-19 vaccine; and
(b)there should be no orders to allow the Father having unsupervised telephone or written communication with the Father.
This matter has previously been before Her Honour Judge Carter. Judge Carter made an order on the day following a contested hearing that the requirements of section 102NA of the Act applied to the Mother. The only outstanding issues for my determination are:
(c)should the Mother be permitted to allow X to receive the COVID-19 vaccination; and
(d)should the Father’s telephone and written communication with X be reintroduced on an unsupervised basis.
This matter has been before this Court since 30 July 2020 upon the Mother filing an Initiating Application. The Father then filed a Response on 12 October 2020. I do not intend to traverse the entire details of the substantive proceedings and will only refer to the matters that are relevant for my determination. On 3 March 2021, the substantive applications were heard by Her Honour Judge Carter at an interim hearing. On this day, Her Honour made orders that:
(a)all current parenting orders in relation to X be suspended;
(b)the Father have professionally supervised time with X, no less than two hours each alternate weekend, at the Father’s expense;
(c)the parents do all such things necessary to engage a psychologist to work with X, such psychologist to be nominated by the Independent Children’s Lawyer;
(d)the Mother shall do all things to obtain a mental health treatment plan for referral to Mr B, psychologist, for the purpose of conducting family therapy. The Father was to pay the costs of the family therapy;
(e)the Father was to obtain a report from the family therapist at his expense; and
(f)there were various other restraints, including non-denigration, belittling, criticising or otherwise speaking negatively about the other parent within the hearing of X.
On 2 June 2021, an order was made listing the matter for final hearing on 30 March 2022. It was noted at that time that the Father had not exercised supervised time as had previously been ordered on 3 March 2021. On 4 August 2021, an order was made listing the matter for directions on a date to be fixed, with a request from Her Honour Judge Kari (as she was known then) that consideration be given to listing the matter on an undefended basis in circumstances where there was continued non-compliance with orders of the Court by the Father. Her Honour noted that the Father has not complied with orders for spending time with X first made on 3 March 2021. It was also noted that the Father had been in New South Wales for some time, but had now returned to Victoria, and that the Father has vacillated over the course of the day’s hearing as to whether he was willing to comply with orders for spending time with X.
On 6 December 2021, an affidavit from C Family Services (“C”) was filed with the Court. C had supervised the Zoom session between the Father and X which occurred on 7 November 2021. The report of the supervised phone call is attached to the affidavit filed 6 December 2021, and I do not intend to traverse the entirety of it. However, of relevance to the Application before me are the following observations:
(a)the Father spoke about the intervention order that the Mother had been granted against the Father;
(b)the Father discussed an incident where the Father attended the Mother’s home, and then the Father went on to say that:
Mummy shouldn’t have done that. Anyway, she did, and now I get into trouble with the police even if I talk to you, write to you and send you an email
(c)the Father was discussing the breach of intervention order charges against the Father following an Easter email sent to X, with the Father stating that X needs to know what actually happened and he doesn’t;
(d)there was a discussion in relation to a TikTok message sent to X by the Father, with the Father stating that:
Mummy told the police that I sent you a TikTok video and I got charged again, and now I can’t even write you a letter. It’s terrible. What’s happening is absolutely terrible
(e)the Father discussed with X the consequences of X choosing to stay with his Mother and that his choice means that he would not see his Dad at all. The Father stated that it was the Mother’s plan and that
…your Mother has made it that I will get arrested even if I try to send a letter to you X
(f)the Father stated that both he and X are being emotionally abused;
(g)the Father discussed his views on COVID-19 and explained that he is of the view that he is within the 10 percent of the world that actually understands COVID-19 and that the whole thing is untrue. The Father stated that it has all been planned and that he has got proof. The Father described COVID-19 as being the normal influenza A or influenza B and nothing more;
(h)the Father stated that he is educating X about the vaccine when he stated that
…it’s not a vaccine at all; it’s evil…
(i)the Father stated to X that he absolutely cannot take the jab and, also, no COVID-19 tests at all. He advised X that
…if anyone asks, just say that it’s still in the experimental state and that you don’t feel comfortable with something that has not been tested long-term. That’s all you’ve got to say.
(j)the Father attempted to arrange an alternate email address for X to contact him and also attempted to provide a password for X to write down and remember.
Of note in the affidavit filed by C was a text message exchange between a supervisor from C and the Father. It was noted in the message that the Father had been requested no less than four times to stop the conversation that he was having with X due to inappropriate communication. The Father was told to focus on what was happening now, what the child had been doing and what the Father had been doing. However, the Father chose to continue giving him a password and telling him to remember it, talking to X about intervention orders and instructing X on how to avoid any testing or vaccination for COVID-19. C made a decision that they were no longer in a position to supervise the Father’s telephone conversations with X.
Pursuant to the orders made 3 March 2021, X has engaged with Mr B, psychologist, for the purpose of family therapy. The Independent Children’s Lawyer today indicated to the Court that upon speaking with Mr B, X had expressed a very clear view that he did not wish to speak with or have time with his Father. This evidence will, of course, have to be tested, and both parents will be in a position to challenge Mr B should they seek to do so at the final hearing. I also note at this stage that the Father has a date set in the Suburb D Magistrates Court to hear his Application for a variation of the intervention order on or about 10 April 2022.
There is no evidence before the Court or put to the Court today that would demonstrate any change of circumstances following the orders of 3 March 2021. The Father’s conduct during the supervised telephone calls is of most concern to the Court. However, he will be in a position to challenge this at a final hearing. As the Full Court stated in Goode & Goode [2006] FamCA 1346 (“Goode & Goode”) a Court cannot determine factual issues in dispute in an interim hearing. That does not mean that the Court ignores allegations as to risk if they are plausibly made. Decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and if it is relatively weak are entitled to treat it so.
The Independent Children’s Lawyer is of the view that granting the Father’s application may have a detrimental impact on X’s psychological and emotional welfare, particularly at this stage of the proceedings.
The Court must take a conservative approach at an interim hearing. As discussed in Marvel & Marvel (No. 2) [2010] FamCAFC 101 (which has been cited with the approval of the full court in Eaby & Speelman [2015] FamCAFC 104):
As frequently been emphasised in interim parenting proceedings, orders made as a consequence are necessary, but a temporary measure until all evidence can be tested, evaluated and weighted at a final hearing.
The issue of the risk the Father may or may not pose to the emotional or psychological welfare of X is a central issue for determination at final hearing. I do not intend to make any orders altering the current arrangements that Her Honour put in place pursuant to the orders made 3 March 2021.
The Father is very strong in his views regarding the COVID-19 pandemic and any vaccinations relating to this. It is clear, and I accept, that the Father does not agree with the current government recommended regime of COVID-19 vaccinations for adults or children. He stated to the Court that it is his view that X is not getting it referring specifically to the COVID-19 vaccination, continuing that under no circumstances will X get the COVID-19 vaccination. The Father is of the view that this is not a vaccine and, instead, a trial or experimental vaccine. He indicated that the vaccine has not been subjected to any testing.
The Father was requested to provide evidence to support his position to the Court. He advised the Court that he did not need to provide me, being the Judge hearing this matter, with his evidence. He stated that he knows for a fact that the vaccine has little to no effect on the transmission of the virus or the contracting of the virus. He stated that COVID-19, on the majority, affected the elderly, infirm or those that have an underlying medical condition. He was of the view that the children’s strong immune system was sufficient to prevent any transmission or contracting of the virus should such a virus even exist.
The Father is of the view that we are being lied to. He referred to the country of Israel in support of his assertion, in which he detailed they have received four doses of the vaccine with increasing transmission numbers. There was no evidence provided to the Court to support the submission. The Father then referred to an interview with the Western Australian Premier, Mr Mark McGowan, and the CEO of Pfizer Corporation which he says demonstrates support for his position that, in fact, the vaccine is ineffectual. I do not find this to be sufficient evidence to support his submissions.
The Mother’s position is that the eligibility of children five to 11 years of age has been approved by the appropriate government organisations for safe administering to children. This approval was given on or about 10 January 2022. The Mother states that she seeks to have X vaccinated to mitigate any serious illness should he contract COVID-19. The Mother attaches to her affidavit, at annexure 4, a letter from X’s treating medical general practitioner, Dr E, who states, and I quote:
This is to state that the above patient has been known to me since 2014 and that he is recommended to receive a vaccination against COVID-19 as per ATAGI guidelines, ideally having one dose prior to returning to school at the end of January.
I raised with the parties that one option for dealing with this controversy between the parents was for one parent to have sole parental responsibility for medical matters, inclusive of the COVID-19 vaccination. The Father did not support such an order being made. The Mother and the Independent Children’s Lawyer supported such an order being made. It is noted that pursuant to section 61DA(3) of the Act, when the Court is making an interim order, the presumption of equal shared parental responsibility applies unless the Court considers that it would not be appropriate to do so in the circumstances.
I have regard to the current Victorian Government’s position, the Victorian Chief Health Officer’s position and the Australian Federal Government’s position and advice given to the community and to schools regarding the vaccination of children aged between five and 11 years of age. It cannot be questioned that the Victorian Government’s advice and the Chief Health Officer’s advice and the Federal Government’s advice is that anyone who can be vaccinated should be vaccinated by two doses of the COVID-19 vaccine as soon as possible, and that includes children from five to 11 and above. I do not propose to impose my views or any other authorised person’s views about vaccinations on the parties, but I do place weight on the overwhelming scientific evidence as provided by epidemiologists, the leading health authorities and the government in the formulation of such recommendations.
I have a parental dispute about COVID-19 vaccination, and I propose to resolve that by making an order that until further order the Mother have sole parental responsibility for questions of health, including the COVID-19 vaccination. For the ongoing wellbeing and health of X in the face of the ongoing and strong opposition of the Father to have X vaccinated, I am of the view that it is appropriate to rebut the presumption of equal shared parental responsibility on an interim basis.
I must balance all the risks, including the benefit to the child pursuant to section 60CC(2) of the Act of having a meaningful relationship with both parents and the need to protect him from physical or psychological harm, and the direction of section 60CC(2)(a) of the Act, that I am to give greater weight to consideration of paragraph (2)(b), that being the need to protect X from risk. There are many disputes in this matter, factual and otherwise, and I am bound by paragraph 82 of the decision in Goode & Goode.
On the balance, I am of the view that the protection of X from potential physical harm as presented by COVID-19 and potential emotional or psychological harm if allowing the Father’s Application to succeed is provided for by the orders that I make. Therefore, I make my orders.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Howe. Associate:
Dated: 16 February 2022
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