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…

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 Karcher & Lacoss

Details

AGLC: Karcher & Lacoss [2022] FedCFamC2F 281
Case: [2022] FedCFamC2F 281
Decision Date

CaseChat Overview and Summary

The case of Karcher & Lacoss [2022] FedCFamC2F 281 involved interim proceedings in the Federal Circuit and Family Court of Australia, Division 2. The applicant father, Mr Karcher, sought orders for the child to live with him and for him to have sole parental responsibility for making decisions about COVID-19 vaccination. The respondent mother, Ms Lacoss, opposed these applications and sought orders for the child to return to living with her. The court was required to determine the interim residence of the child and whether one parent should have sole responsibility for vaccination decisions. The court considered the relevant legislation and case law, as well as the evidence and submissions from the parties. In its judgment, the court found that it was not in the child's best interest to change her current living arrangements and that the orders sought by the Independent Children's Lawyer were appropriate. The court also found that the father should have sole parental responsibility for making decisions about COVID-19 vaccination, as the child lives with him and he has consulted with a General Practitioner who recommended vaccination. The court emphasised that the responsibility for parental decisions remains with the parents, and it was not appropriate for the court to step into the shoes of the parents and make the decision for them. The court made orders for the child to continue living with the father, for the child to spend time with the mother during school holidays, and for the father to have sole parental responsibility for making decisions about COVID-19 vaccination. The matter was listed for a final hearing in the August 2022 sittings of the Federal Circuit and Family Court of Australia.

Orders