Kingsford & Kingsford - [2012] FamCA 889

FAMILY COURT OF AUSTRALIA

KINGSFORD & KINGSFORD

[2012] FamCA 889

FAMILY LAW — CHILDREN — immunisation — traditional or homeopathic — best interests — overarching parental conflict

Family Law Act 1975 (Cth)

B & B: Family Law Reform Act (1997) FLC 92-755

APPLICANT:

Mr Kingsford

RESPONDENT:

Ms Kingsford

INDEPENDENT CHILDREN’S LAWYER:

Ms Marie Casey

FILE NUMBER:

MLC

9459

2009

DATE DELIVERED:

19 October 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

27 – 28 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self Represented

SOLICITOR FOR THE APPLICANT:

Self Represented

COUNSEL FOR THE RESPONDENT:

Ms Swart

SOLICITOR FOR THE RESPONDENT:

Trapski Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Byrnes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

Orders

The mother and the father forthwith do all acts and things necessary to ensure that the child T born … August 2004 receives any and all childhood vaccinations/inoculations as are recommended by Dr J of the Royal Children’s Hospital so that the child is fully immunised to a level which is equivalent to a child of her age as prescribed or recommended in the current National Immunisation Program Schedule published by the Australian Government, Department of Health and Ageing.
Once the child’s level of immunisation has been brought up to date as provided in the preceding paragraph of this Order, the mother and the father do all acts and things necessary to ensure that the child continues to receive into the future such immunisations as are recommended within the National Immunisation Program, or its successor, for a child of her age with the exception of the Human Papillomavirus vaccine (Gardasil) or like treatment for the prevention of cervical cancer.
For the purpose of implementing the obligations of the parents which arise pursuant to paragraph 1 of this Order:-
(a)The father do all acts and things necessary to obtain from Dr J his recommendation in writing for full immunisation program for the child T inclusive of catch up immunisations;
(b)The father provide the mother and Dr O with a copy of the written recommendations of Dr J promptly upon receipt and then not proceed with the immunisations until 14 days have elapsed;
(c)The mother be at liberty to verify Dr J’s recommendations with Dr J (at her own expense) and/or Dr O (at her own expense);
(d)The father ensure that all immunisations be administered by Dr O or, in the event that he is unavailable, his appropriately qualified nominee;
(e)The father provide to the mother with not less than 14 days notice in writing of the date and time of the child’s immunisation appointments which, for the avoidance of doubt, should fall within the face to face time which the child spends with the father pursuant to parenting orders or as has been agreed between the parents;
(f)The father pay and be solely responsible for the reasonable cost of obtaining the recommendation from Dr J and the administration of the immunisations by Dr O…

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 Kingsford & Kingsford

Details

AGLC: KINGSFORD & KINGSFORD [2012] FamCA 889
Case: [2012] FamCA 889
Decision Date: 19 October 2012

CaseChat Overview and Summary

This case concerned a dispute between a mother and father regarding the childhood vaccinations of their child, T. The matter came before Bennett J.

The court was required to determine the extent to which the child T should be immunised, and the process by which any recommended vaccinations should be administered, considering the differing views of the parents. The court also had to consider the future immunisation of the child, including the Human Papillomavirus vaccine.

Bennett J ordered that the child T receive all childhood vaccinations recommended by Dr J of the Royal Children’s Hospital, to be brought up to date with the National Immunisation Program Schedule. The court further ordered that the child continue to receive future recommended immunisations under the program, with the exception of the Human Papillomavirus vaccine, for which liberty to apply was reserved. Detailed provisions were made for the process of obtaining recommendations, administering vaccinations, and the responsibilities of each parent and medical professionals involved, including the father being responsible for costs and the mother providing the child's health record. The court also directed the independent children's lawyer to provide copies of the order and reasons to specified medical professionals.

Orders

Orders of the court

The mother and the father forthwith do all acts and things necessary to ensure that the child T born … August 2004 receives any and all childhood vaccinations/inoculations as are recommended by Dr J of the Royal Children’s Hospital so that the child is fully immunised to a level which is equivalent to a child of her age as prescribed or recommended in the current National Immunisation Program Schedule published by the Australian Government, Department of Health and Ageing.

Once the child’s level of immunisation has been brought up to date as provided in the preceding paragraph of this Order, the mother and the father do all acts and things necessary to ensure that the child continues to receive into the future such immunisations as are recommended within the National Immunisation Program, or its successor, for a child of her age with the exception of the Human Papillomavirus vaccine (Gardasil) or like treatment for the prevention of cervical cancer.

For the purpose of implementing the obligations of the parents which arise pursuant to paragraph 1 of this Order:-

(a) The father do all acts and things necessary to obtain from Dr J his recommendation in writing for full immunisation program for the child T inclusive of catch up immunisations;

(b) The father provide the mother and Dr O with a copy of the written recommendations of Dr J promptly upon receipt and then not proceed with the immunisations until 14 days have elapsed;

(c) The mother be at liberty to verify Dr J’s recommendations with Dr J (at her own expense) and/or Dr O (at her own expense);

(d) The father ensure that all immunisations be administered by Dr O or, in the event that he is unavailable, his appropriately qualified nominee;

(e) The father provide to the mother with not less than 14 days notice in writing of the date and time of the child’s immunisation appointments which, for the avoidance of doubt, should fall within the face to face time which the child spends with the father pursuant to parenting orders or as has been agreed between the parents;

(f) The father pay and be solely responsible for the reasonable cost of obtaining the recommendation from Dr J and the administration of the immunisations by Dr O or his nominee;

(g) The dosages of vaccine and inoculations, including whether they be combined vaccinations, be as recommended by Dr J;

(h) The mother do all acts and things necessary to:-

(i) deliver the child’s yellow/red booklet entitled “My Health and Development Record” to Dr O not less than 24 hours prior to any vaccination appointment (notified to her pursuant to sub-paragraph (e) hereof);

(ii) provide the father with a copy of the said booklet initially;

(iii) provide the father with a copy of further endorsements in the said booklet referrable to immunisations received from time to time.

I DIRECT that the independent children’s lawyer provide a copy of this Order and my reasons for decision to:-

(a) Doctor J;

(b) Doctor O, and

(c) such other medical or like health professional as she considers, in furtherance of the child’s best interests, ought to have that information –

and, for that purpose, the independent children’s lawyer be provided with three extra copies of this Order and my reasons for decision.

For the avoidance of doubt, the mother is at liberty to provide a copy of my reasons for decision to Dr G.

I reserve liberty to the parties to apply in relation to the implementation of this Order.

I reserve liberty to the parties to apply in 2016 in relation to the child receiving the Human Papillomavirus vaccine (Gardasil) or like treatment for the prevention of cervical cancer and for that purpose the matter may, if one of the parties so seek, be listed before me on its first return date for directions.

Unless a Notice of Appeal is filed, upon compliance by the independent children’s lawyer with paragraph 4 of this Order, the order requesting the appointment of an independent children’s lawyer be, and is hereby, discharged.

All exhibits and documents produced on subpoena be returned to the person tendering or producing same.

10.

All extant applications be otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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