Karcher & Lacoss
[2022] FedCFamC2F 281
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Karcher & Lacoss [2022] FedCFamC2F 281
File number: MLC 8326 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 3 March 2022 Catchwords: FAMILY LAW – interim residence – COVID-19 vaccination – whether court should make parental decision – whether one parent should have sole responsibility for vaccination decisions. Legislation: Evidence Act 1995 (Cth), s 144
Family Law Act 1975 (Cth), ss 60CA, 60CC, 61DA, 65DAC, 69ZT
Cases cited: Eaby & Speelman (2015) FLC ¶93-654
Goode & Goode [2006] FLC ¶93-286
Makinen & Taube [2021] FCCA 1878
McGregor & McGregor [2012] FamCAFC 69
Palange & Kalhoun [2022] FedCFamC2F 149
Division: Division 2 Family Law Number of paragraphs: 89 Date of last submission/s: 4 March 2022 Date of hearing: 28 February 2022, 3-4 March 2022. Place: Town F via Microsoft Teams Solicitor for the Applicant: Victoria Legal Aid Solicitor for the Respondent: Hosking Legal Solicitor for the Independent Children's Lawyer: Medson Legal Pty Ltd ORDERS
MLC 8326 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KARCHER
Applicant
AND: MS LACOSS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
4 MARCH 2022
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The Applicant Father, Mr Karcher ('the Father') have sole parental responsibility for COVID-19 vaccination and other vaccinations of X born in 2010 ('the child')
Spend time and changeovers:
2.The child shall spend time with the Mother as follows:-
(a)from 10.00am on Sunday 10 April 2022 until 10.00am on Sunday 17 April 2022;
(b)commencing in the June/July school holidays, for half of the gazetted Victorian term school holidays from 10.00am on the first Sunday until 10.00am on the second Sunday; and
(c)at other times as agreed.
3.For the purposes of the child spending time with the Mother Mr B (subject to the filing of an Undertaking in the terms of Annexure A hereto), or such other person as agreed between the parties (including the Independent Children's Lawyer) shall be in substantial attendance for the first two days of the time referred to in paragraph 1(a) and 1(b) hereof.
4.Changeover shall occur as follows:-
(a)For the purposes of the child spending time with the Mother in the April 2022 school holidays: -
(i)at the commencement of the Mothers time with the child at Town C Police Station; and
(ii)at the conclusion of the Mothers time with the child that the child shall fly as an unaccompanied minor and for that purpose the Mother shall not less than 7 days prior to the child's expected departure date book a one-way ticket from Sydney to Melbourne Tullamarine airport and provide a copy of the same to the Father.
(iii)That in the event that the Mother is unable to book a flight for the child that the Mother shall provide to the Father not less than 7 days' notice and changeover shall occur at the Shell Petrol Station located at D Street, City E, NSW.
(b)For the purposes of the child spending time with the Mother at all other times:-
(i)That for the purpose of the child travelling between the Mother and Father that the child shall fly as an unaccompanied minor and for that purpose the Mother shall not less than 7 days prior to the child's expected departure book a return ticket from Melbourne Tullamarine to Sydney airport and provide a copy of the same to the Father.
(ii)Thereafter that changeover shall occur at the airport to which the child is to arrive with sufficient time for the child to check in and board the flight as an unaccompanied minor, with the Father to collect the child from Tullamarine airport.
(iii)That in the event that the Mother is unable to book a flight for the child that the Mother shall provide to the Father not less than 7 days' notice and changeover shall occur at the Shell Petrol Station located at D Street, City E, NSW.
Family Report:
5.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the child X born in 2010 attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children's Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 12 July 2022 and that the family report address:
(a)any views expressed by the child and any matters (such as the child's maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the child and upon the child's relationship with the Mother if the Court made orders as sought by the Father;
(d)the impact upon the child and upon child's relationship with the Father if the Court made orders as sought by the Mother;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
6.Not later than 4.00 pm on 11 March 2022 the parties must provide their contact telephone numbers and email addresses to [email protected].
7.Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
8.The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
9.The Family Consultant shall be at liberty to inspect any material filed by the parties.
10.Leave is granted to each of the parties and the Independent Children's Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.
Final Hearing:
11.The matter be adjourned for final hearing in the August 2022 Town F Circuit sittings of the Federal Circuit and Family Court of Australia on a date to be advised.
12.The matter may be listed for a compliance mention prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
13.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
14.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which he seeks to rely by no later than 28 days prior to the Final Hearing.
15.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 14 days prior to the Final Hearing and the obligation to file same applies whether or not the Applicant has filed trial material in accordance with the previous order.
16.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 7 days prior to the Final Hearing.
17.Each of the parties be at liberty to file a short affidavit in reply by no later than 7 days prior to Final Hearing.
18.Each party file and serve a case outline no later than 3 days prior to trial and provide a copy in Word format to the associate with the case outline to include:
(a)A list of the application/response and all affidavits to be relied upon including the dates of filing;
(b)A brief chronology of relevant events;
(c)A precise minute of the orders the party is seeking; and
(d)A list of authorities to be relied upon, if any.
19.For face to face final hearings, parties are directed to have multiple copies of the paginated documents they seek to tender or cross examine upon (a judge's working copy, a copy for each counsel and solicitor and a witness copy that will become the exhibit) and have a copy of documents available to witnesses including the witness' own affidavit.
20.No later than 3 days prior to trial, the legal representatives (and the parties themselves if self represented) jointly prepare a trial plan outlining any witnesses for cross-examination and an indication of the time they anticipate required for cross-examination of each witness.
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 Karcher & Lacoss has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
INTRODUCTION
These are the reasons for judgment. This ex tempore judgment will deliver the bare bones of my reasons. Settled reasons will insert details of cases, legislation and evidence referred to and also make corrections for grammar and clarity.
The matter was heard on 28 February 2022 in the Town F circuit sittings in a list of approximately 44 matters including 15 final hearings that were listed for hearing over five days. That list necessitated some expedition and curtailment of submissions on the hearing. However, I was substantially assisted by each of the parties having filed detailed outlines of case and efficient submissions.
The matter concerns the child X aged 11 (‘the child’). The applicant father is Mr Karcher (‘the Father’) and the respondent mother is Ms Lacoss (‘the Mother’). The third party to the proceedings is the Independent Children’s Lawyer (‘the ICL’).
The parties were all represented and the ICL appeared herself. The parties agreed that the matter should proceed as an interim defended hearing but on the papers. No party was sought for cross-examination.
The living circumstances of the parties were that they lived in or around Town F until separation when the Father remained in the Town F area and the Mother relocated to Canberra. The Mother returned for a period to the Town F area and then relocated to City G. The Mother remains in City G at this time.
Pursuant to orders made in 2013 and varied in 2015 the child has lived with the Mother and spent school holiday time with the Father at least at times until July 2021. The arrangements in place for many years changed in mid-2021.
In July 2021 the Mother attended a psychiatric hospital for therapy. It appears that the Mother's stepmother was involved in assisting the parents come to an arrangement that the Mother's children by her relationship subsequent to the Father in these proceedings would be with that man while she was in hospital and with the Father in regard to the child the subject of these proceedings.
ISSUES FOR DETERMINATION
The questions I must answer in this interim defended hearing are as follows.
(1)Firstly, whether the child should live with the Father in Victoria or return to live with the Mother in City G in New South Wales. The distance between those homes makes only school holiday time practical.
(2)Whether changes should be made to the orders concerning the time the child spends with her mother.
(3)Whether the court should authorise the child being vaccinated against COVID-19 and, alternatively, whether one of the parents should have the authority or parental authority for making decisions about COVID-19 vaccination.
Orders sought by the ICL in these reasons for therapy for the child are not opposed by the parents.
I will also list the matter for final hearing in the August sitting of this court at Town F and I will order a family report to be prepared.
MATERIAL RELIED UPON
The Father relied upon:
(1)His affidavit filed when he commenced the proceedings filed on 22 July 2021;
(2)His affidavit filed 14 October 2021;
(3)His affidavit filed 7 January 2022 (concerning only his criminal history);
(4)Application in a Proceeding filed 15 February 2022; and
(5)His affidavit filed 15 February 2022.
The Mother relied upon:
(1)Her affidavit filed 30 August 2021; and
(2)Her affidavit filed 27 February 2022.
The ICL relied upon:
(1)Section 67Z Response from the Department of Families, Fairness & Housing (‘Child Protection’) dated 5 August 2021 (ICL1);
(2)Section 67Z Response from Child Protection dated 15 October 2021 (ICL2); and
(3)Detailed written submission relating to the vaccination issue.
BACKGROUND
The Father is 35 and is in receipt of a disability pension. The Father also relies upon further documents being Australian Government digital certificates of vaccination for himself and his partner Ms H. The Father lives with Ms H and they have a son J who is now aged three.
The child was born in 2010 and is now 11, almost 12. The child is in Year 7 at school.
The Mother is employed as a professional. The Mother has three other children from a relationship subsequent to her relationship with the Father. She has a son, eight, a daughter, six, and a son aged three. The Mother has separated from the Father of those children and those children now live with her.
The parties’ commenced cohabitation when they were teenagers in 2009 and they married in 2011. They separated in 2012 and were divorced in 2015. These proceedings were issued in July 2021. However, the parties had previously been involved in litigation concerning the child’s welfare and final orders were made in 2013 and revisited in 2015.
The current proceedings first returned to court on 31 August 2021 and interim orders were made on 21 October 2021. In the August 2021 orders all previous parenting orders were discharged, including the then extant orders for equal shared parental responsibility. Those orders provided for the child to live with the Father and spend time with the Mother during school holidays subject to COVID-19 restrictions.
Orders were made relating to travel, communication, drugs and alcohol. Further orders for the child to spend time with the Mother were made by consent on 21 October 2021 and I will recite order number 3 that refers to substantial attendance and an agreed supervisor.
3.The child’s time with the Mother in accordance with Order 2 above shall be in the substantial attendance of an agreed supervisor, upon such supervisor filing and serving an Undertaking to the Court in the terms specified by the Independent Children’s Lawyer.
Family lawyers will immediately note a tension between the concept of supervision and substantial attendance in one order. The October 2021 orders adjourned the matter for interim defended hearing before me on Monday, 28 February 2022.
PARENTS PROPOSALS
The Father seeks orders that the child continue to live with him and that the child spend time with the Mother for half of the Victorian school holidays with such time to be within 75 kilometres of the Town C Police Station and that the time be in the presence of an agreed supervisor who shall be in substantial attendance.
This is a significant change from existing orders and after these reasons are delivered I will ask the parties for submissions about changeover as I have not been addressed on the nuts and bolts of the different changeover arrangements proposed.
The Father further sought orders that he be at liberty to take all steps necessary to ensure that the child receives vaccinations against COVID-19 Coronavirus disease and that the Father be at liberty to take all necessary steps to ensure that the child receive vaccinations in accordance with the national immunisation schedule program.
The Father has arranged for but not yet undertaken the standard or usual vaccinations for children in year 7. It turns out the child was reasonably up to date with the ordinary or standard vaccinations, having been vaccinated whilst living with the Mother on a number of occasions.
Following separation, the child was again vaccinated in March 2014. The parties dispute whether or not the Father was notified of that vaccination. The Mother asserts that he was and agreed to it and the Father asserts that he was neither consulted nor agreed. Since then the child has had the further vaccination when living with the Father on 28 July 2021.
The Father exhibited to an affidavit text messages from the Mother asking that he not contact the father of the other children. The Father deposes that, in any event, he did contact him and that he was informed that the Mother had been a habitual drug user and was trafficking drugs. The Father also determined or decided in his mind that the Mother had been involved in prostitution.
The Mother admits some drug use in the past and denies the allegations of prostitution. If the Father is able to correctly identify tattoos on the Mother's body, and he may well, having lived with her for many years, then his allegations in regard to prostitution may have a proper basis. It is not simply that the Mother has been involved in sex work but the Father alleges that this work has overlapped with the time and place where the Mother has had the child and the other children of her subsequent relationship in her care. The Mother denies all of these matters.
The Father says text messages were sent to him by the Mother's ex-partner. Those text messages may be a proper basis for alleging trafficking of illicit drugs and that includes messages, “I don't know if you weigh it or not but those bags are point 25 and I've been point 4/point 5 for $50. Last night it was nearly a G and I only know so I can keep track of my own usage to stay on the rails.” The Mother denies those allegations and alleges a very serious background of family violence at the hands of the Father over many years.
Her affidavit describes matters in regard to physical and sexual assault of the utmost seriousness. The Father denies those allegations, but accepts that on about 21 January 2019 there was an altercation between himself and his current partner whereby he ended up being placed on a community corrections order after pleading guilty to false imprisonment, sexual assault, aggravated assault, unlawful assault and contravening an order.
The Mother alleges that the family violence occurred on occasions in the presence of the child. The Father alleges a number of serious matters about the Mother's parenting and the settled reasons will recite paragraphs 28 to 30 of the Father's affidavit filed on 22 July 2021.
28.The following day, X broke down in tears. She said to me "I'm unhappy". I asked X why she was unhappy. She replied "I don't want to live with my mum".
29.X began to disclose that day, and over the following days, many things that made me concerned about Ms Lacoss's ability to parent X. X told me that:
29.1.Ms Lacoss drops X and her siblings at school at 8:00am every morning and tells X to look after her siblings at the park across the road from the school until school begins;
29.2.she has to prepare and cook meals for herself and her siblings six nights per week because Ms Lacoss will not prepare meals. On the other night of the week, Ms Lacoss orders takeaway.
29.3.she has to clean the house, prepare school lunches for herself and her siblings, bathe her siblings and get them ready for bed because Ms Lacoss will not do it;
29.4.Ms Lacoss spends most of her time sitting in her bedroom. Ms Lacoss does not leave her room except to tell X and her siblings to go to bed;
29.5.she has to also cook meals for Ms Lacoss unless Ms Lacoss decides to order takeaway for herself;
29.6.when Ms Lacoss wants a coffee, she yells out to X "coffee!" and X is expected to make Ms Lacoss a coffee and leave it at Ms Lacoss's bedroom door. X has to knock on Ms Lacoss's door and notify Ms Lacoss that the coffee is ready;
29.7.she and her siblings are not allowed to play outside while in Ms Lacoss's care. They are restricted to playing videogames inside;
29.8Ms Lacoss used to leave her newborn child K with X unsupervised. Ms Lacoss would go to the gym in the morning and X was tasked with listening out for her siblings. X was told to call Ms Lacoss if there were any issues;
29.9.on weekends, Ms Lacoss leaves X at home by herself when her siblings are in the care of their father Mr L. Ms Lacoss would tell X to go to bed at 10.00pm. X would be unable to get to sleep until around 1:00am the following day and Ms Lacoss would still not be home. X was told on these occasions to not call me, to not open the door for anyone and that if someone came to the house, she was to act like no one was home;
29.10while she spent time with me over the term one school holidays earlier this year, Ms Lacoss arranged for X and her three siblings to sleep in the one bedroom upon her return. X told me that she was not allowed to tell me about this. The room that X was in was allocated for toys, a television and electronic consoles.
29.11whenever Ms Lacoss picks X and her siblings up from school, Ms Lacoss puts her headphones in and doesn't talk to the children on the way home;
29.12she feels like “I am not a kid at home, I'm an adult”.
30.I subsequently asked Ms Lacoss if she was going to talk to X about the issues she had raised with me. Ms Lacoss said “I do plan on talking to her for sure, but I might not be able to if it means I can't get my kids off (the other children’s father) back". She also said in relation to (the other children’s father) “I'm honestly begging you to not communicate at all with him. He 's going to try plant seeds info your head”. I fear that Ms Lacoss was trying to prevent me from discovering what has been going on in her household…
The Father's partner is not on affidavit in support of this application. Hence, I have a matter where both parties make very serious allegations about the other and his or her care of the child.
The Mother had arranged to attend a psychologist for psychological assessment shortly prior to the hearing but this has to be deferred until the day after the hearing and the court is without the benefit of that psychological assessment.
MOTHER’S EVIDENCE
The Mother's evidence includes evidence that on its face demonstrates a significant change or difference in her lifestyle from that alleged by the Father. Significantly, the Mother has been engaged with the services of M Family Services and also with the New South Wales Department of Communities and Justice in regard to her other three children. The M Family Services letter dated 26 August 2021 that speaks highly of the Mother's motivation:
Ms Lacoss had demonstrated motivation and follow through in working towards positive change for she and her children which has been demonstrated by her ongoing honest engagement with FFT. During FFT intervention Ms Lacoss has always presented as a loving mother of her children who is able to provide care for her children and meet their needs. During sessions where the children have been present in the home the children have always presented as safe, happy, and healthy in their mother's care.
Those observations refer to the care of the Mother's other three children; not the child. The Mother undertook a hair follicle test in July/August 2021 and another in December 2021 and the settled reasons will recite precise details of those tests. Annexure 8 of the Mother’s affidavit filed 27 February 2022 showed the following tests:
(a)a hair sample taken on 30 July 2021 (of 3.9cm) was negative for all substances; and
(b)a hair sample taken on 6 January 2022 (of 3.9cm) was negative for all substances;
Hence these tests show that the Mother has not used substances as alleged for many months in 2021.
The section 67Z Child Protection response dated 5 August 2021 included:
“File notes also showed that the Ms Lacoss’ home had been observed at the time with no immediate concerns noted for the children; noted to be clean, tidy with adequate food. Discussion also occurred in relation to parentified role of X and Ms Lacoss acknowledged that X at times does assist with the care of the younger children and X enjoyed doing so.”
Child Protection did not have concerns for the care of the child in the Father's home. The Mother pressed that the children should be returned to her on an interim basis. She pressed that she had been the primary caregiver to the child for most of the child's life, that she has been a victim of serious family violence at the hands of the Father and that since the child has been living with the Father, her relationship with the child has sharply deteriorated and that that deterioration arises from the Father's attitude to her and the attitude to her in the Father's house.
In substance it was put that these allegations are so serious that the child should be returning to the Mother's care, notwithstanding that this was an interim hearing and that the matter would be listed for final hearing. The Mother simply sought that the previous final orders be enforced: that is, that the child live with her.
The Father, in an outline of case, and an application in a case filed in February, pressed the additional matters relating to COVID-19 and the outline of case in substance effectively assumed that the court would not seriously contemplate changing the residence application.
The Father's case that he was caring appropriately for the child and that the child's strong wishes as a soon to be 12 year old should be given weight and the child strongly objected to living with the Mother, and further, the competing residence applications should be dealt with on the final hearing.
The Father pressed for the child to be vaccinated in regard to COVID-19 and the usual vaccinations and I will deal with that separately.
ICL PROPOSAL
The ICL largely supported the Father's position in regard to the living arrangements for the child and sought some variation of the existing orders so that the child could attend a local clinical social worker for therapy.
The ICL pressed that the child continue living with the Father and sought some alterations and those orders were as follows:
1.Paragraphs 2, 4, 5 and 6 of Annexure A to the Orders made on 21 October 2021 be discharged.
2.X born in 2010 (“the child”) shall spend time with the Mother as follows:-
a.for half of the gazetted Victorian term school holidays from 10.00am on the first Sunday until 10.00am on the second Sunday, with such time to occur within a 75 kilometre radius of Town C Police Station; and
b. at other times as agreed.
3. Changeover shall occur at Town C Police Station.
4.The Father shall arrange for the child to attend upon Ms N, Clinical Social Worker (or such other clinical psychologist or clinical social worker as nominated by the Independent Children’s Lawyer) (“the Counsellor”), for therapeutic counselling and to that end:
a.the independent children's lawyer provide the Counsellor with copies of:-
i.the psychological assessments of Ms O once they are produced; and
ii. the Affidavits filed on behalf of the parties in this proceeding;
b. such counselling be non-reportable
c.the Mother and the Father be entitled to attend (either personally or by telephone or other electronic communication) upon the Counsellor as directed by the Counsellor; and
d. the parties to share the cost of the counselling.
5. The Father’s Application in a Proceeding filed 15 February 2022 be dismissed.
I raised with the ICL the potential conundrum and tension between substantial attendance and actual supervision. The ICL addressed me on the basis that the provision for supervision or substantial attendance or both was from her perspective not based on a risk to the child issue but rather based on the issue of the child's reluctance, and what was described by the ICL as outright refusal, to attend and her instructions were, that the child was refusing to travel to spend time with her mother.
The purpose of the supervision or substantial attendance was said to be to assist the child ease into the time in the Mother's care. The Mother raised what she saw as the inappropriate involvement of the child in the proceedings by the Father and the unsatisfactory nature of the phone calls and that the Father's attitude to the child spending time with her was one of his reluctance, demonstrated by his reluctance to properly and genuinely facilitate phone calls.
Those matters are denied by the Father and if correct would be matters of significance for consideration on the final hearing.
INTERIM HEARING PRINCIPLES
This is an interim hearing and I am bound by the rules and guidelines of an interim hearing and I apply paragraph [81-82] of Goode & Goode [2006] FLC ¶93-286.
[81]In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
[82] In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In this case I must consider the best interests of the child and section 60CA and section 60CC(1) to (3) of the Family Law Act 1975 (Cth) (‘the Act’).
60CA:Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
AGREED OR UNCONTESTED MATTERS
I must look to matters that are agreed or uncontested. It is agreed that until July 2021 the child had lived her whole life with the Mother. It is agreed that the child’s living circumstances were substantially interrupted in July 2021 when the child came to live with her Father when her Mother attended for treatment for mental health. It is agreed that the child’s attitude to her father is such that she is reluctant to speak or participate in phone calls. It is agreed that the mother has a history of mental health issues and drug use. It is agreed that the Father has been dealt with in court for serious charges relating to family violence in his current home. It is uncontested the Mother’s hair follicle tests, covering months over 2021, are clean.
Some of the surrounding circumstances relating to COVID-19 are also agreed and they will be recited when I deal with the vaccination issue. However, beyond that, almost every aspect of the history and circumstances of the parties is disagreed.
SECTION 60CC MATTERS
In terms of the section 60CC matters to take into account, the most significant matter is the benefit to the child of having a relationship with both parents. I find that it is in the child's benefit to have a relationship with both parents and with her mother with whom she is not living at the moment. I note the command of section 60CC(2A) that I am to give greater weight to the protective concern than I am to the maintenance of that relationship. In other words, the child must be kept safe rather than a relationship no matter what.
The most significant of the additional considerations is the fact that the child is almost 12 and I accept has instructed the Independent Children's Lawyer that not only does she not want to live with her mother but she does not wish to spend time with her. The Independent Children's Lawyer's position is that it is very important to the child to have a relationship with her mother and experience living with the mother in circumstances where it appears the Mother is no longer using drugs and there is some evidence that her mental health has stabilised.
SECTION 61DA PRESUMPTION DOES NOT APPLY AND NOT APPROPRIATE
I must deal with the presumption. The previous orders for equal shared parental responsibility were discharged by August 2021 order. Section 61DA of the Act provides as follows:
Section 61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
There are reasonable grounds to believe that family violence has occurred and hence the presumption does not apply and, in any event, in these highly polarised interim proceedings, it is not appropriate to apply the presumption if it did apply.
CONCLUSION AS TO INTERIM RESIDENCE
Balancing all those matters and noting that this is an interim hearing and I am going to hear the matter as a final hearing in August of this year, with the benefit of the family report and a psychological report as to the Mother's circumstances, I find that it is not in the child's interest to change her current living standard arrangements by reverting to the previous final orders as sought by the Mother.
I am persuaded in all the circumstances that the orders sought by the Independent Children's Lawyer are appropriate save for the issue of the previous order of substantial attendance or agreed supervisor. It is common ground that the failure to agree on an agreed supervisor, as well as the child's views, meant that the child did not see her mother at all for the Christmas holidays as was provided in the October orders.
I raised with the ICL the practical difficultly of the Mother having someone in substantial attendance day after day and night after night for the whole of the school holidays and the even greater responsibility of someone supervising over that extended period of time. I raised with the ICL whether the obligational requirement of substantial attendance should be any lesser period and the ICL submitted that, alternatively, that substantial attendance, if I were to consider reducing the same, should be at least the first two days of any holiday period.
Balancing all of those matters, I am going to make the orders sought by the ICL, save as to the vaccination, (which I will come to separately) and save as to order 3 (recited earlier), that is, the substantial attendance, and I will order that an agreed person, not supervisor, be in substantial attendance for the first two days of the Mother's time with the child during the school holidays. In the event of a dispute as to who such person should be in substantial attendance, then that person should be as nominated by the ICL: but subject to any application or supervision by the court and me.
COVID-19 VACCINATION
I now turn to deal with the vaccination issue. Each parent sought that the court make the parental decision that they disagreed about. The Father's alternative position was that he have sole parental responsibility for decisions concerning vaccination, including COVID-19 vaccination. The Mother's opposition to vaccination was based on alleged lack of research and potential side effects of the COVID-19 vaccinations and that some children don’t get very sick with COVID-19. Her evidence and statements at [138] and [139] of her affidavit recently sworn was as follows:
138.I do not consent to X receiving the COVID-19 vaccination in circumstances where I do not believe there has been enough research into the potential side effects and am not comfortable in taking such risk in having X vaccinated. I deny that it is about 'power and control' and say that I do have the health and safety of X in mind.
139.I have further researched the impact of COVID-19 on children and understand from this research that around 98% of children and adolescents either get a mild infection or have no symptoms at all. While I accept that some children may become sick and require hospitalisation X has received all previous vaccinations in accordance with health recommendations and otherwise is a healthy 11 year old with no prior health concerns. I annex hereto and mark with the letters “7” a true and correct history of the research paper I am referring to together with X’s immunisation history.
The ICL makes the submission that I should dismiss the Father's application in the circumstances and concludes at [23] and [24] of her written submissions:
23.It is submitted that the Court cannot place any weight on the evidence submitted by each of the parties and, in those circumstances, there is no evidence on which the Court can make a determination of the Application.
24.There are no “risk-free” options available to the Court, and in those circumstances, it is submitted that it is appropriate that Court not disturb the status quo and dismiss the Application.
SECTION 65DAC
Section 65DAC of the Act requires parents when they have any degree of shared parental responsibility by court order to confer and reach agreement.
Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
SECTION 144 OF THE EVIDENCE ACT 1995 (CTH)
The well drafted submissions of the ICL assert in substance that neither party has provided sufficient or proper evidence of an appropriate expert upon which I could place any weight on and referred to a number of authorities as to how section 144 of the Evidence Act1995 (Cth) (‘the Evidence Act’) did not assist, see:
·McGregor & McGregor [2012] FamCAFC 69; and
·Palange & Kalhoun [2022] FedCFamC2F 149.
The Father's solicitor referred me to the decision of Makinen & Taube [2021] FCCA 1878, a decision of Judge Taglieri of 16 August 2021, and in particular the concept or issue of what the Judge in that case was able to take ‘judicial notice’ of. In that decision her Honour used the phrase "take judicial notice of certain facts" as a matter of convenience but was, I understand, referring to matters where evidence was not required pursuant to section 144 of the Evidence Act.
Section 144 Matters of common knowledge
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a)common knowledge in the locality in which the proceeding is being held or generally; or
(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4)The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
I note that for convenience the term ‘judicial notice’ is not infrequently used when describing matters taken into account pursuant to section 144 of the Evidence Act. But the common law judicial notice concept and section 144 of the Evidence Act, although of some similarities, are not the same.
I raised with the parties, and it was not disputed, that the following matters fall within section 144 of the Evidence Act (proof not required) and they are as follows:
(1)the country is subject to a pandemic of COVID-19;
(2)an infection from COVID-19 is a serious matter and has significant health impacts for adults and children;
(3)COVID-19 is a contagious disease;
(4)State and Federal Governments have arranged a scheme of vaccination for adults and children over five years of age.
Further, those facts themselves, regardless of section 144, when raised were not disputed in the proceedings with me. I proceeded on the basis that those matters as not in dispute. In any event notice to the parties, in discussion, that section 144 may apply to those matters having been given, I find that section 144 does apply and that evidence is not required of those matters stated above.
To vaccinate or not is a parental decision routinely made by parents.
I also raised in discussion whether I could have regard to a further matter where evidence is not required and that was that COVID-19 vaccination of children is ubiquitous and many thousands of children in this country have now been vaccinated. However, upon reflection, and I acknowledge the submission of the ICL: the extent of the numbers including of vaccination, unvaccinated, illness and so on, is not sufficiently before the court in a reliable enough manner. I have determined not to place any weight upon that potential circumstance.
Both parties have annexed and relied upon the same government publication. The ICL's position was absent section 69ZT of the Act then that document and the other material relied upon the Father would be hearsay and inadmissible.
Section 69ZT Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note:Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
…
I was referred to the case of McGregor & McGregor [2012] FamCAFC 69 (‘McGregor’) by the ICL. I note the observations critical of section 69ZT in McGregor at [85] and [86] as follows:
[85]But the application of s 69ZT(1)(c) is confusing. The opinion rule is to the effect that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 79 ameliorates the opinion rule in s 76 in respect of opinions of experts who qualify in that capacity.
[86]Section 69ZT excludes the opinion rule and thus permits admission of evidence of an opinion to prove the existence of a fact. Paradoxically, s 79 is excluded and has no application at all. The effect would seem to be that an opinion can be admitted to prove the existence of a fact, and there is no requirement that the opinion-giver have any specialised knowledge or expertise.
However, section 69ZT is a reality and has been for many years. It is the law of the land and is applicable to me and to the decisions I must make. The observations in McGregor were made in 2012 and section 69ZT remains, and is applicable, a decade later.
Notwithstanding the circumspection of the court in McGregor, I must give section 69ZT full force and weight. Nonetheless, the issue of weight to be given to any particular evidence that may otherwise have been hearsay or opinion is a serious matter.
The document that both parties annexed and referred to was a publication of the National Centre for Immunisation Research and Surveillance dated 17 January 2022 exhibited to the Father's affidavit as exhibit 11 and exhibited to the Mother's affidavit as 7 and includes the following observations:
Q10. Which vaccines are available for children and adolescents in Australia?
…
As of 13 January 2022, around 75% of those aged 12-15 years had received two doses of Pfizer or Moderna vaccine in Australia and coverage continues to grow…
The COVID-19 vaccination program for children aged 5-11 years also commenced on 10 January 2022. A new (paediatric) formulation of the Pfizer vaccine is registered for use in this age group and is a lower dose, being one third, of the recommended dose for people 12 years of age and older.
…
Q13. Are COVID-19 vaccines safe in children?
Clinical trials and real-world studies have shown that COVID-19 vaccines approved for children (5-11 years) and adolescents (≥12 years) are very safe. They may experience mild side effects after vaccination, but these usually resolve within 48 hours. In the clinical trials for people ≥12 years of age, the most common adverse events following immunisation were injection site pain (80-90%), headache (30-50%) and fatigue (30-60%). Information from the USA shows that adverse events in children 5-11 years of age were milder and less frequently observed when compared to 16-25 year olds. The most common adverse events were injection site pain, fatigue, headache, muscle pain, chills and fever. In some instances injection site redness and swelling were more common in children than young adults.
In Australia, the Therapeutics Good Administration (TGA), part of the Australian Government Department of Health, is responsible for approving medicines and vaccines for use in Australia. The TGA has a rigorous process for assessing vaccine safety, quality and efficacy before approving vaccines for use in the population. Australia's national active vaccine safety surveillance system AusVaxSafety also monitors vaccine safety in real-time and provides detailed information on age-specific rates of adverse events, as well as adverse events in Aboriginal and Torres Strait Islander people and those with risk conditions.
In addition, tens of millions of adolescents have been vaccinated in countries that are closely monitoring and reporting on safety, including the USA, Europe, Canada, Israel, Singapore and Japan. Similarly, over 4.8 million children 5-11 years of age have received at least one dose of the paediatric Pfizer vaccine in the USA, which is more than the total population for this age group in Australia.
Q14. What are the side effects of COVID-19 vaccines in children and adolescents?
Children and adolescents can experience mild side effects after COVID-19 vaccination. These can include swelling, redness, and pain at injection site, fever, headache, tiredness, muscle pain, chills and nausea. These side effects usually resolve within 24-48 hours. Consult your medical practitioner if you are worried about any of the side effects. Serious side effects such as anaphylaxis or myopericarditis after COVID-19 vaccination are very rare…
The Father commenced to agitate this issue of vaccination of the child shortly before the vaccine would have been available for her as an 11 year old. The parents exchanged text messages between themselves. Each regards the other as either opposing or seeking to have the child vaccinated as a means of control within the parental relationship and control by controlling the child's circumstances. On an interim hearing I am unable to find the same but I do not and cannot dismiss such an allegation.
The ICL is concerned about that issue of control within the parental relationship. In Eaby & Speelman (2015) FLC ¶93-654 Ryan J, with whom Thackray and Forrest JJ agreed, observed to the effect that on an interim hearing, I do not disregard evidence or allegations solely because it is disputed. See the following:
[18.]… It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:
[122]In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88]In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100]The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
(emphasis added)
The Father has put forward some significant additional information. At [11] (of his affidavit filed 15 February 2022) he set out how he had, on 5 February 2022, had the child examined by a General Practitioner and that that doctor had advised that the child ought be vaccinated against COVID-19. The doctor provided a letter to that effect and that the Father invited the Mother to speak to the doctor if she wished to. I am unsure whether or not she did. The Father said:
11.On 5 February 2022, X and I attended upon Dr P of Q Medical Centre in the State of Victoria. The purpose of the consultation was to discuss whether the COVID-19 vaccination be medically recommended for X. Dr P advised that X ought to be vaccinated against COVID-19 and provided me with a letter to this effect. I invited Ms Lacoss to speak to Dr P about the matter; I am unsure if Ms Lacoss did so.
The Father annexed a copy of that letter as -7 which states as follows:
I certify that, in my opinion,
Miss X, R Street, Town C
Is recommended to vaccinate against COVID 19 infection.
Date of Examination 05/02/2022
Signed: Dr P
So in this case we have not only the general information that both parties have relied upon that is available to the public from government departments about COVID-19 vaccination, but I have the specific information from the General Practitioner where the child lives actually recommending that vaccination process for this child.
The Father in his application in a case sought that the court make the decision about vaccination and, alternatively, that he have responsibility for that decision. See as follows:
1.The Father be at liberty to take all steps necessary to ensure that the child X born in 2010 ("the child") receives vaccinations against coronavirus disease ("COVID-19") in accordance with the recommendations of the child's treating general practitioner.
2.The Father be at liberty to take all steps necessary to ensure that the child receives vaccinations in accordance with the National Immunisation Program Schedule.
3.In the alternative to Orders 1 and 2, the Father have sole parental responsibility for the child in respect of all decisions relating to the child's immunisation and vaccination.
…
(emphasis added)
The Mother's outline of case did not address the vaccination issue but the Mother's solicitor addressed me on the same and adopted the written submissions made by the ICL. I acknowledge the industry and care taken by the ICL in her submissions. However, the reality is this. The country is in the grip of a fast-moving pandemic. The ICL's submission is the parties could have and should have, if they wished to agitate the issue, put on appropriate expert evidence to support their cases. But the practical reality of what expert evidence could be marshalled since this dispute broke out in early January is not clear to me.
To wait for a defended hearing and/or the orthodox obtaining of and exchanging expert evidence will cause delay and in effect hands one parent a veto. In the circumstances of a pandemic, the traditional and more leisurely approach to making decisions may not be appropriate. A pandemic is a fast-moving matter that requires decisions to be made quickly.
In this case I do not propose that the court step into the shoes of the parents and make the very decision that they cannot agree upon. I was told, and accept, that the Mother herself has been vaccinated. Her objection is to the lack of long-term research verifying that vaccination is acceptable for children. The essential conundrum of that argument is that a pandemic may well be over and/or the child infected before that research has been conducted over a sufficiently long period to satisfy the Mother's concerns.
The appropriate way to deal with this parental dispute is that one parent must have, until further order, the parental authority to make those decisions in the circumstances where there is a log jam. I reject the submission that I should not make any order until proper or further or better evidence is before the court because it is effectively accepting the Mother's submission that no such order should be made in the interim that would permit vaccination.
I accept that vaccination, once done, cannot be undone. I repeat, I am not going to place the court in a position of a parent. The responsibility for parental decisions and this parental decision remains with the parents. They cannot agree. This is the sort of issue that literally thousands upon thousands of parents sort out and have sorted out in recent times. But moreover parents have been sorting out vaccination decisions for decades in this country. This is a decision that should be made by parents. Here, the parents cannot agree.
I proceed on the basis that the Mother's objection is to her mind a very proper matter. I proceed on the basis it is bona fide. I proceed on the basis that the Father's intention to have the child vaccinated is bona fide. I note the concerns of the ICL that the dispute may ultimately revolve around issues of the parental relationship and control rather than the issue of vaccination. However, on the interim hearing I cannot find that so.
CONCLUSION AS TO VACCINATION RESPONSIBILITY
In these circumstances, I must determine which of the two parents is to have responsibility for that decision. I determine the Father should make that decision. The primary reason that I do so is that the child lives with the Father and the Father has taken the time and trouble and care to have the child consult with a General Practitioner, who I regard as an expert, and certainly an expert of greater expertise than me or any of the lawyers in the case in the area of vaccination.
The Father has taken the time and the trouble to do that and he says he will act in accordance with that existing medical advice that he has already received and of which the Mother has had the opportunity to discuss with that doctor. The further matter that I take into account is that the Father has resisted the temptation to attempt to act unilaterally. He consulted the Mother beforehand and has then respected the Mother's demand that he not have the child vaccinated until the matter was able to be determined by the court. His consulting the Mother and waiting for the matter to be determined for a matter of days or a couple of weeks was entirely appropriate.
I take into account that the Father's position of wishing to have the child vaccinated is in accordance with the recommendations of the Commonwealth government, State governments and the National Centre for Immunisation Research and Surveillance. However, the primary matter that I take into account is the Father is acting in accordance with the actual recommendation of a General Practitioner in regard to this particular child and not broad and general observations concerning all children.
The Mother indicated during the case that she did not oppose the Father proceeding with the usual non-COVID-19 vaccination for the child. But that consent was late in the proceedings. And hence he should have until further order (notwithstanding the recent consent of the Mother) sole parental responsibility for what I will describe as ordinary vaccinations as well.
THE CHANGEOVER
I will now hear submissions about changeover. The matter was then rolled over to the following day Friday 4 March 2022 for submissions and decision about the dispute as to how changeover would occur.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 16 March 2022
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