Kopic & Britt
[2022] FedCFamC2F 515
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kopic & Britt [2022] FedCFamC2F 515
File number(s):
SYC 3757 of 2018
Judgment of:
HER HONOUR JUDGE C.E. KIRTON QC
Date of judgment:
28 April 2022
Catchwords:
FAMILY LAW – Parenting – COVID-19 vaccination – where the Mother seeks to have the Child vaccinated against COVID-19 – where the Father is opposed to having the Child vaccinated against COVID-19 – where the allocation of parental responsibility remains an outstanding issue in dispute – where on the first day of the final hearing the parties entered into consent orders concerning vaccinating the Child against COVID-19 – where on the third day of the final hearing the Father sought to discharge the relevant consent order in favour of a different proposal – whether the parties should seek advice and recommendations from two (2) general practitioners concerning vaccinating the Child against COVID-19 – whether the two (2) general practitioners should provide a written recommendation – where the parties did not produce evidence from an expert witness or from the Child’s treating medical practitioners concerning any underlying medical conditions the Child may have that are relevant to the Child being vaccinated against COVID-19 – where the Mother produced material published by Australian Technical Advisory Group on Immunisation – further order made for the parties to follow the recommendation of one (1) general practitioner and for the Mother alone to have authority to vaccinate the Child in accordance with the general practitioner’s recommendation.
Legislation:
Family Law Act 1975 (Cth) ss 43, 60CA, 60CC, 61B, 61C, 61D, 64B, 65DAE, 67ZC
Cases cited:
Cranston & Persson (No2) [2022] FedCFamC1F 187
Dyquiangco Jr v Tipay 2022 ONSC1441
Lamos & Radin (No 2) [2022] FedCFamC2F 167
Palange & Kalhourn [2022] FedCFamC2F
Rusena & Rusena [2022] FedCFam2F 472
Division:
Division 2 Family Law
Number of paragraphs:
74
Date of last submission/s:
25 March 2022
Date of hearing:
23-25 March 2022
Place:
Melbourne via video-link
Counsel for the Applicant
Mr Hegedus
Solicitor for the Applicant
Legal Aid NSW
Counsel for the Respondent
Mr Deppeler
Solicitor for the Respondent
H.K. Husseini & Co. Solicitors
Counsel for the Independent Children’s Lawyer
Ms Saw
Independent Children’s Lawyer
JLM Family Lawyers
ORDERS
SYC 3757 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KOPIC
Applicant
AND: MR BRITT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON QC
DATE OF ORDER:
28 APRIL 2022
THE COURT ORDERS THAT:
1.Further to Order 19 of the Final Parenting Orders made on 23 March 2022 (Order 19), in the event the general practitioner (GP) referred to in Order 19, recommends that it is medically safe for the child X, born in 2015, (X) to be vaccinated against COVID-19 with one of the vaccinations currently approved by the Australian Technical Advisory Group on Immunisation for children:
(a)The Applicant Mother (Mother) and the Respondent Father shall do all acts and things necessary to have X vaccinated within the time frame so recommended by the GP; and
(b)In the event that the parents do not agree to X being vaccinated within the timeframe so recommended by the GP, this Order shall provide the Mother alone with authority to have X vaccinated against COVID-19.
2.The Independent Children’s Lawyer is to provide a copy of Kopic & Britt [2022] FedCFamC2F 515 to Family Consultant Ms C within seven (7) days of the date of these Orders.
AND THE COURT NOTES:
A.The final hearing of this matter is part heard before Judge C.E. Kirton QC and the final day of the hearing is listed on 26 August 2022.
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 Kopic & Britt has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON QC:
INTRODUCTION
This matter came before the Court on 23, 24 and 25 March 2022 for final hearing (Final Hearing) of the Amended Initiating Application filed by the Applicant Mother on 25 January 2022 (Amended Initiating Application) and the Amended Response to Initiating Application filed by the Respondent Father on 18 February 2022 (Amended Response). The Final Hearing was unable to be completed within the three (3) days the matter was listed before the Court and the matter has been adjourned to 26 August 2022 for a further hearing of one (1) day.
This matter relates to parenting proceedings concerning the child, X, born in 2015 (X). X is presently six (6) years of age. X’s parents are the Applicant Mother, Ms Kopic (Mother), and the Respondent Father, Mr Britt (Father).
These Reasons for Judgment are in respect of the discrete issue of X being vaccinated against COVID-19. I was of the view that in relation to this discrete issue a decision should not be deferred to the point in time at which the Court is to deliver its Reasons for Judgment with respect to the remainder of the issues in dispute between the parties, being after the conclusion of the Final Hearing. Counsel for the parties and the ICL agreed with this course of action[1] and on 25 March 2022 Counsel each made submissions in relation to the issues the subject of these Reasons for Judgment, which are delivered prior to the conclusion of the Final Hearing.[2]
[1] Transcript (25.3.22) P143:L32-P146:L30.
[2] Transcript (25.3.22) P192:L1-P199:L8.
At the commencement of the Final Hearing on 23 March 2022 it became apparent that the parties were in a position to narrow the outstanding issues in dispute. The matter was briefly stood down to facilitate discussions to narrow the outstanding issues in dispute. Following those discussions, the parties submitted a joint Minute of Proposed Orders (Joint Minute of Proposed Orders) containing the final orders that were agreed upon by all of the parties. On 23 March 2022 final orders were made by consent in accordance with the Joint Minute of Proposed Orders (23 March 2022 Final Orders).
The following Order was made by consent as part of the 23 March 2022 Final Orders (Order 19):
[…]
19.Within four (4) days of the date of these Orders, both parents shall take X to a general practitioner (GP) at D Clinic for advice and recommendations as follows:
(a)The safety and effectiveness of the vaccines against COVID-19 that are currently available in Australia for persons aged 18 and under, and in particular for person aged from 5 to 11;
(b)The advantages and disadvantages of X being vaccinated against COVID-19;
(c)A recommendation as to whether it is medically safe for X to be vaccinated against COVID-19 with one of the currently ATAGI-approved vaccinations for children, and if so, the time frame in which she should be vaccinated.
[…]
(As written)
The parties also each submitted a Minute of Proposed Orders containing the orders they each individually sought in addition to the 23 March 2022 Final Orders. The Independent Children’s Lawyer (ICL) further submitted a list identifying the outstanding issues in dispute (List of Outstanding Issues).
The List of Outstanding Issues identified the following issues which remained in dispute between the parties at the commencement of the Final Hearing:
(a)Parental responsibility;
(b)The time X is to spend with the Father during school term periods;
(c)The method of communication between the parents about X’s welfare;
(d)The age at which X will be vaccinated against COVID-19; and
(e)Whether the Mother should be restrained from bringing X into contact with certain third parties.
At the conclusion of the hearing on 25 March 2022: the Mother had completed her cross-examination; the Father had been cross-examined by Counsel for the Mother from 3:30 pm on 24 March 2022 and remained under cross-examination by Counsel for the Mother; Counsel for the ICL was still to cross-examine the Father; and there is one remaining witness being the Family Report Writer.
ISSUES TO BE DETERMINED
The issues to be determined in these Reasons for Judgment are whether:
(a)The parents should be required to take X to two (2) separate general practitioners for advice and recommendations in relation to the following:
(i)The safety and effectiveness of the vaccines against COVID-19 that are currently available in Australia for persons aged 18 and under, and in particular for persons aged from 5 to 11;
(ii)The advantages and disadvantages of X being vaccinated against COVID-19; and
(iii)A recommendation as to whether it is medically safe for X to be vaccinated against COVID-19 with one of the vaccinations currently approved by the Australian Technical Advisory Group on Immunisation (ATAGI) for children, and if so, the time frame in which X should be vaccinated; and
(b)Whether each of the general practitioners consulted in accordance with sub-paragraph (a) should be required to provide a written recommendation.
SYNOPSIS
I have determined that:
(a)The parents should be required to take X to one (1) general practitioner at D Clinic for advice and recommendations in relation to the matters referred to in sub-paragraphs 9(a)(i) to (iii); and
(b)The general practitioner consulted in accordance with sub-paragraph (a) should not be required to provide a written recommendation.
BACKGROUND
The Father was born in Australia in 1968 and is currently 53 years of age. The Father has four (4) children from a previous relationship, being: Ms E, aged 33; Mr F, aged 31; Ms G, aged 27; and Mr H, aged 25.[3] The Father does not depose to being in any employment. The Father has deposed that he plans in the future to return to work in his trade as a tradesman.[4]
[3] Affidavit of the Father, filed and affirmed 9 March 2022, [3].
[4] Affidavit of the Father, filed and affirmed 9 March 2022, [81].
The Mother was born in the Country J in 1984 and is currently 37 years of age. The Mother was married previously in the Country J and has two (2) sons who were born in the Country J, being: Mr K, born in 2003, aged 19; and L born in 2007, aged 14. The Mother works as a carer with Employer M, between 25 to 30 hours a week.[5]
[5] Affidavit of the Mother, affirmed 1 March 2022 and filed 2 March 2020, [232].
In 1998 the Father was involved in an altercation outside a pub and collapsed and hit his head. He subsequently suffered from organic brain damage syndrome.
The Mother separated from her husband in the Country J in about 2010/2011.[6]
[6] Affidavit of the Mother, affirmed and filed 15 March 2022, [23].
In March 2013 the parents commenced a de facto relationship whilst the Mother was living and working in Country N.
The Mother’s marriage to her husband was annulled in the Country J in 2013.[7]
[7] Affidavit of the Mother, affirmed and filed 15 March 2022, [23].
In or about September 2014 the Mother moved permanently to Sydney and commenced cohabitation with the Father.
In 2015 X was born.
On 17 May 2018 the parents separated in circumstances where both parties made allegations of domestic violence against each other. The Father left the home taking X with him and retained X. At the time, X was aged two (2) years and seven (7) months. The Father subsequently restricted all X’s contact with the Mother.
On 14 June 2018 the Mother filed an Initiating Application seeking X’s return to her care. On 18 June 2018 Judge Harper (as His Honour then was) made orders for X to be returned to the care of the Mother and for the Father to spend time with X on Mondays and Tuesdays and alternate Saturdays from 9:00 am to 2:00 pm. An order was also made pursuant to s.68B of the Family Law Act 1975 (Cth) (Act) to protect the Mother.
On 22 November 2018 Judge Henderson (as Her Honour then was) made orders for the Father to spend time with X from 9:00 am to 4:00 pm each Monday and Tuesday and alternate weekends from 9:00 am Saturday to 9:00 am Sunday. Orders were also made for X to spend special occasions with both parents.
In December 2019 Mr K and L moved to Australia and joined the Mother’s household.
PROPOSALS OF THE PARTIES
The Mother and the ICL’s Proposal
The Mother and the ICL were in agreement as to the circumstances under which X should be vaccinated against COVID-19. The same Order is sought by the both the Mother and the ICL in their respective Minutes of Proposed Orders, submitted to the Court on 23 March 2022 (ICL and Mother’s Proposal), however amended at my suggestion to read as follows:
In the event the GP recommends that it is medically safe for X to be vaccinated against COVID-19 with one of the currently Australian Technical Advisory Group on Immunisation (ATAGI) approved vaccinations for children, then the parents shall do all acts and things necessary to have X vaccinated within the time frame recommended by the GP, and in the event that the parents do not agree, this Order shall provide the Mother alone with authority to have X vaccinated against COVID-19.[8]
(Emphasis added)
[8] Transcript (25.3.22) P192:L19-31; and P198:L14-24.
Documents Relied on by the Mother
In relation to this discrete issue, the relevant documents relied on by the Mother are:
(a)Amended Initiating Application, Court Book (CB) 200 to 214;
(b)Affidavit of the Mother, affirmed 1 March 2022 and filed 2 March 2022, CB 87 to 199, Exhibit A2 (Mother’s 2 March 2022 Affidavit);
(c)Affidavit of the Mother, affirmed and filed 15 March 2022, CB 53 to 80, Exhibit A3 (Mother’s 15 March 2022 Affidavit); and
(d)Outline of Case Document (Final Hearing), filed by the Mother 21 March 2022, CB 41 to 46.
Documents Relied on by the ICL
In relation to this discrete issue, the only document relied on by the ICL was the Outline of Case Document (Final Hearing), filed by the ICL 21 March 2022, CB 1 to 11.
The Father’s Proposal
As discussed above, on the first day of the Final Hearing the Father consented to the 23 March 2022 Final Orders, which included Order 19.
The order initially sought by the Father at the commencement of the Final Hearing was contained in the Minute of Final Orders submitted to the Court on 23 March 2022 by the Father (Father’s Initial Proposal) and was as follows:
In the event the GP recommends that it is medically safe for X to be vaccinated against COVID-19 with one of the currently approved ATAGI approved vaccinations for children, then the parents shall do all things necessary to have X vaccinated upon X attaining the age of 10 years (2025).[9]
(Emphasis added)
[9] Transcript (25.3.22) P195:L1-14.
Prior to the commencement of the third day of the Final Hearing on 25 March 2022, Counsel for the Father advised my Associates that the Father’s position as to when X should be vaccinated against COVID-19 had changed. The Father had withdrawn his consent to Order 19. Counsel for the Father subsequently forwarded to my Associates, copying all parties, an amended Minute of Proposed Orders (Father’s Amended Proposal). The Father now seeks the following orders:
5.Within 7 days of the date of these orders, both parents shall make an appointment to take X to two general practitioners (GP) as agreed between the parties, and if there is no agreement to one GP chosen by the mother from D Clinic and one GP chosen by the father, for advice and recommendations as follows:
5.1The safety and effectiveness of the vaccines against COVID 19 that are currently available in Australia for persons aged 18, and in particular for persons aged from 5 to 11;
5.2The advantages and disadvantages of X being vaccinated against COVID 19;
5.3A written recommendation as to whether it is medically safe for X to be vaccinated against COVID 19 with one of the current ATAGI approved vaccinations for children, and if so the time frame in which she should be vaccinated.
6.The mother is to have authority to implement the recommendations of either of the medical practitioners regarding COVID 19 vaccination, as chosen by and at the discretion of the mother, and both parties shall do all acts and things necessary to effect those recommendations.[10]
(As written)
[10] Transcript (25.3.22) P195:L14-39.
Proposed Order 5 of the Father’s Amended Proposal (Proposed Order 5) seeks to vary Order 19 as follows:
(a)The parties make an appointment for X with a general practitioner within seven (7) days of the Orders, instead of taking X to a general practitioner within four (4) days of the Orders;
(b)There is an additional consultation with a general practitioner to be chosen by the Father; and
(c)The inclusion of the requirement of a “written recommendation” by each general practitioner.
Proposed Order 6 of the Father’s Amended Proposal (Proposed Order 6) abandons the issue as to the age X should be before she is vaccinated against COVID-19, being 10 years of age, and instead gives the Mother sole authority to adopt the advice of either of the two (2) general practitioners and to act as she considers appropriate.
Therefore, if the Court was to make orders in accordance with the Father’s Amended Proposal, the Court would have to discharge Order 19, as the Father’s Amended Proposal is inconsistent with Order 19. I again note that Order 19 is part of the 23 March 2022 Final Orders which were made by the Court on 23 March 2023 with the consent of both parents and the ICL.
Documents relied on by the Father
In relation to this discrete issue the documents relied on by the Father are:
(a)Amended Response, CB 221 to 234;
(b)Affidavit of the Father, filed and affirmed 9 March 2022 and Annexures -1 to -40, CB 235 to 474, Exhibit R2 (Father’s 9 March 2022 Affidavit);
(c)Outline of Case Document (Final Hearing), filed by the Father 22 March 2022, CB 215 to 220 (Father’s Outline of Case); and
(d)Father’s Amended Proposal.
RELEVANT LEGAL PRINCIPLES
The relevant legal principles governing my decision in this matter are set out in pt.VII of the Act.
The overarching principle for parenting orders is in s.60CA of the Act which provides that, in deciding to make a particular parenting order in relation to a child, the Court must have regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the relevant considerations to which the Court should have regard in determining what is in the best interests of the child.
Pursuant to s.61B of the Act, parental responsibility in relation to a child in pt.VII of the Act, means:
SECTION 61B MEANING OF PARENTAL RESPONSIBILITY
61B […] all the duties powers, responsibilities and authority which, by law, parents have in relation to children.
Parenting orders are defined in s.64B of the Act. Section 64B(2) sets out the matters parenting orders may deal with and includes, in s.64B(2)(c) “the allocation of parental responsibility for a child” and in s.64B(2)(i) “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”.
Pursuant to the 23 March 2022 Final Orders, all previous parenting orders were discharged.[11] Therefore, pursuant to s.61C(1) of the Act, each of the parents presently has parental responsibility for X, subject to future Court Orders.
[11] 23 March 2022 Orders, Exhibit “A”, Consent Order 1.
Section s.61C(1) of the Act is subject to s.61D of the Act. Section 61D(2) provides:
PARENTING ORDERS AND PARENTAL RESPONSIBILITY
61D(1) […]
61D(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
As discussed earlier in these Reasons for Judgment, the issue of parental responsibility remains an issue in dispute between the parties. The Mother seeks sole parental responsibility[12] and the Father seeks an order that the parents have equal shared parental responsibility.[13]
[12] Amended Initiating Application, filed by the Mother 25 January 2022, Final orders sought, [2].
[13] Amended Response, filed by the Father, 18 February 2022, Final orders sought by you the respondent, [2].
As the parents presently have joint parental responsibility for X and no order has been made in respect to parental responsibility, s.65DAE of the Act requires that the parents consult on major long-term issues in dispute. It was not disputed that the question of whether X should receive a COVID-19 vaccination is a decision involving a major long-term issue impacting on X.
In circumstances where the parents have consulted and are unable to reach a joint decision in relation to X’s immunisation for COVID-19, it is necessary for the Court to do so. Therefore, ss.43 and 67ZC of the Act are of relevance. Section 43 sets out the principles to be applied in the exercise of the Court’s jurisdiction and includes, in s.43(1)(c) an obligation to have regard to “the need to protect the rights of children and to promote their welfare”.
Section 67ZC of the Act provides:
SECTION 67ZC ORDERS RELATING TO THE WELFARE OF CHILDREN
67ZC(1) In addition to the jurisdiction that the court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
67ZC(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
CONSIDERATION
It is evident that the Father has changed his position in relation to X being vaccinated against COVID-19 during this proceeding. In the Amended Response the Father sought the following order:
Both parents are restrained and injuncted from allowing any form of medical procedure, medical trial, medical experiments and/or inoculations be administered to or performed on or to X by any specialist healthcare professional, including but not limited necessarily to a dentist, specialist doctor, optometrist, and/or other specialist without the other parents written consent;
(As written)
The Father’s Outline of Case listed one of the issues in dispute as being:
Whether X should be vaccinated against COVID-19 and when such vaccination should occur.[14]
[14] Outline of Case Document (Final Hearing), filed by the Father 22 March 2022, List of Issues in Dispute, [4].
In the Father’s Outline of Case the Father sought the following orders:
22. Within 4 days of the date of these orders, both parents shall book an appointment for X to see Dr O at P Medical Centre for advice and recommendations as follows:
22.1 what the adverse events mentioned in the report attached to the father’s affidavit at 43 means for the safety of the vaccine;
22.2 the safety and effectiveness of the vaccines against COVID 19 that are currently available in Australia for persons aged 18 and in particular for persons aged from 5 to 11;
22.3 the advantages and disadvantages of X being vaccinated against COVID-19 with one of the currently ATAGI approved vaccinations for children, and if so the timeframe in which she should be vaccinated.
23. In the event the GP recommends that it is medically safe for X to be vaccinated against COVID 19 with one of the currently ATAGI approved vaccinations for children then the parents shall do all things necessary to have X vaccinated after 12.00am in 2025.
(As written)
The Father’s Evidence
In the Father’s 9 March 2022 Affidavit at paragraph [75], the Father produced a medical certificate from Dr O, dated 18 March 2018 (Annexure “37”, CB 464)[15]. This medicate certificate states that Dr O has known the Father as his “Family Medical Practitioner for the past 30 years”. The medical certificate does not state that X has ever been Dr O’s patient or a patient of the P Medical Centre, or that Dr O has examined X for any underlying health conditions which would prevent her from being vaccinated against COVID-19.
[15] It is noted that [75] of the Father’s 9 March 2022 Affidavit erroneously refers to Annexure “35”.
The only evidence produced by the Father in support of the orders sought by the Father is paragraph [90] of the Father’s 9 March 2022 Affidavit, which provides:
Exhibited to me at the time of swearing this Affidavit and marked “43” is a true copy of the “Cumulative Analysis of Post-authorisation Adverse Events Reports” by Pfizer. In particular, pages 30 to 38 inclusive list potential adverse side effects.
Annexure “43” was not filed with the Father’s 9 March 2022 Affidavit and the document “Cumulative Analysis of Post-authorisation Adverse Events Reports” is not in evidence in this proceeding.
The Father has not produced any evidence from X’s treating general practitioner, or another medical practitioner or qualified expert confirming that X does not have underlying health conditions which would prevent her from being vaccinated against COVID-19, or that it was appropriate to delay X’s vaccination until 2025 when X turns 10 years old.
The Mother’s Evidence
The evidence that has been produced by the Mother in the Mother’s 2 March 2022 Affidavit in relation to vaccinating X for COVID-19 is as follows:
(a)In paragraph [204] the Mother deposed:
From 10 January 2022 the COVID vaccine was authorised by the ATAGI for children over five (5). The boys and I have been double vaccinated, and I wanted X vaccinated also. I had seen that children of friends of mine had been vaccinated and they were fine. I let [the Father] know that I was going to have X vaccinated. I made an appointment for the end of February 2022.
[The Father] did not agree. He wanted to wait until the Novavax vaccine was made available. This is despite the fact Novavax vaccine has not been approved anywhere in the world for children under 18.
(b)In paragraph [204] the Mother produced in Annexure M, a copy of a document produced by the World Health Organisation titled ‘The Novavax vaccine against COVID-19: What you need to know, dated 21 December 2021. At page 5 of this document under the heading ‘Who is this vaccine not recommended for?’, it states “[…] vaccination of persons under the age of 18 is not recommended”.
(c)In paragraph [205] the Mother deposed:
Since then, [the Father] has refused to have X vaccinated against COVID-19. He has sent many, many messages to me about COVID vaccines.
(d)In paragraph [205] the Mother produced copies of “some of these messages” in Annexure N. Annexure N contains text messages from the Father dated 9 January, 21 January and 26 January. This correspondence from the Father to the Mother is patronising, insulting and abusive.
(e)In paragraphs [209] to [216] the Mother deposed that she tested positive for COVID-19 on 30 January 2022 and that X, Mr K and L subsequently also contracted COVID-19. The Mother, Mr K and L were in isolation from 30 January 2022 to about 14 February 2022. X was in isolation for only a week. The Mother has now received her third vaccination.
(f)In paragraph [283] the Mother deposed:
283. While [the Father] is no longer texting me about my parenting as much, he continues to send text messages that criticise me. The messages he is recently sending are related to X being vaccinated, and his opposition to the COVID vaccines that are available for children. He sends me text messages with anti-COVID vax material to pass on to X. These have included a picture of a little girl, at what appears to be an anti-COVID vaccination rally, holding a sign saying “Its not my job to keep adults safe.” With that picture [the Father] had written, “This is for you X, we are winning.” Another was a picture of a doll wearing a mask in an open coffin with the words “Aussie Kid 2017- 2022 RIP. I have not shown X these messages.
(As written)
(g)In paragraph [283] the Mother produced Annexure O, which was described as “picture of the doll”. Annexure O appears to have been sent by the Father on 13 January 2022 and includes the words “death because voluntary vaccination with experimental vaccine counts like suicide”.
(h)In paragraph [284] the Mother deposed:
If I do not block [the Father] he will send these kinds of messages every day. [The Father] also continues to send messages with nasty comments to me […]
(i)In paragraph [284] the Mother produced Annexure P, which was described as a “sample of some recent messages” the Father had sent her. Annexure P is a series of text messages sent by the Father on: 26 January at 8:38 pm; and 27 January 2022 at 9:41pm. I agree with the Mother’s description of these texts as “nasty”. To this description I would add that these texts from the Father to the Mother are patronising, insulting and abusive. These texts include the following comments from the Father, which were contained in the Father’s text which was sent to the Mother on 26 January at 8:38 pm:
[..] I will not submit X to any form of medical abuse for a virus that does not harm children.
Stop your abuse of X!
I feel strongly that your mental health is very unstable right now and you are driven by the fear that others have put into your head about this virus that does not harm children. […]
The evidence that has been produced by the Mother in the Mother’s 15 March 2022 Affidavit in relation to vaccinating X for COVID-19 is as follows:
(a)In paragraph [78] the Mother deposed:
78. I note [the Father’s] belief that Pfizer is not a safe vaccine. I attach the Australian Technical Advisory Group on immunisation’s advice about the Pfizer vaccination for children aged 5 to 11.
(b)In paragraph [78] the Mother produced in Annexure B a copy of a document by ATAGI and titled “ATAGI recommendations on the use of the paediatric Pfizer COVID-19 vaccine in children aged 5 to 11 years in Australia”.
The Mother has not produced any evidence from X’s treating general practitioner, or another medical practitioner or qualified expert confirming that X does not have any underlying health conditions which would prevent X from being vaccinated against COVID-19.
Consideration of the Father’s Initial Proposal
Counsel for the Father submitted the following in relation to the Father’s Initial Proposal:
Whilst your Honour was going through the orders proposed in relation to those discrete issues in dispute, your Honour indicated that [the Father’s] proposed order in relation to vaccination was untenable without medical evidence and suggestion- and suggested that I have a discussion with my client overnight as to an alternate order.[16]
[16] Transcript P196:L7-11.
This submission is correct. Given the paucity of the evidence produced by the Father as discussed above under the heading ‘The Father’s Evidence’, and the evidence produced by the Mother as discussed under the heading ‘The Mother’s Evidence’, the Father’s Initial Proposal which was put forward to the Court at the commencement of the Final Hearing on 23 May 2022, was destined not to succeed. In the absence of any specific evidence by X’s treating general practitioner, or another medical practitioner or qualified expert of X’s particular circumstances, an injunctive order could not be made preventing X from being vaccinated until 2025, when she attained the age of 10 years. The Court could not be satisfied that the Father’s Initial Proposal could cause physical harm to X by delaying her vaccination. The Court could therefore not be satisfied that the Father’s Initial Proposal was in X’s best interests pursuant to s.60CA of the Act, having regard to ss.60CC(2)(b) and 60CC(2A). Further the Court could not be satisfied that the Father’s Initial Proposal protected X’s rights or promoted her welfare pursuant to s.43(1)(1)(c) of the Act. Nor could the Court be satisfied that the Father’s Initial Proposal was in X’s best interests pursuant to s.67ZC(2) of the Act.
As the Father has abandoned the Father’s Initial Proposal, I will not develop my response to the Father’s Initial Proposal any further. It has been necessary to respond to the Father’s Initial Proposal for the reasons that follow under the heading ‘Consideration of the Father’s Amended Proposal’. In making the observations in the previous paragraph I have had regard to the judgment of Smith J (as his Honour then was) in Palange & Kalhourn [2022] FedCFamC2F 149 (16 February 2022) (Palange & Kalhourn). In this case His Honour had before him an unrepresented Mother and Father who had placed before the Court evidence in a variety of forms in relation to their competing applications concerning their 10 year old child’s vaccination against COVID-19 with the Pfizer vaccine. In the judgment His Honour explained complex rules of evidence. In relation to the case presently under consideration I refer to Palange & Kalhourn at [70]-[72], [75]-[84], [96], [101]-[113] and [130]-[141]. I also refer to the decision of Judge Beckhouse in Rusena & Rusena [2022] FedCFam2F 472 (14 April 2022). In that case, the father sought vaccination of the children against COVID-19 and the mother sought to restrain the father from vaccinating the children. The father had both children examined by their local general practitioner, who produced a medical certificate confirming that the children had no underlying health conditions which would prevent them from being vaccinated against COVID-19. The father also relied upon a single expert, Dr C. The Mother relied upon an expert report provided by of Dr D, which commented on the COVID-19 vaccinations presently available, having regard to the ATAGI recommendations (at [24] and [25]). His Honour ultimately concluded (at [55]) that the benefits to the children of being vaccinated outweighed the risks, taking into account: the publically available advice issued by numerous organisations, including ATAGI and the World Health Organisation; and the particular circumstances of the children, including the advice of their general practitioner and Dr C.
Consideration of the Father’s Amended Proposal
On the first day of the Final Hearing the Father consented to Order 19 as a final order. On the third day of the Final Hearing the Father purported to withdraw his consent to Order 19 and the Father now seeks the orders in the Amended Proposal. The Amended Proposal is opposed by the Mother and the ICL.
On the third day of the Final Hearing Counsel for the Father submitted:
In relation to your Honour’s comments on the [the Father’s] proposed order influencing your Honour’s ultimate determination on the issue of parental responsibility, I would submit this, and I do not wish at any length to repeat those matters that I have already submitted to your Honour. First is that the [Father] has been placed in a position where his position was untenable if he did not seek to alter the consent orders. While the proposal does not seek to amend the orders as – while the proposal does seek to amend the orders as made by consent, such amendment was sought as a compromise to the [Father] accepting that the mother should have sole parental responsibility in relation to this discrete issue.
In light of that concession, your Honour, the father merely sought by amendment that the parties have a second opinion from a general practitioner and, in those circumstances, that is really the thrust of what the father is seeking in relation to the amendment to the consent orders. The proposal I would submit alternatively – ultimately, your Honour, shows that the father is willing to compromise on what, up until this point, was an extremely contentious issue as to whether X be vaccinated and, ultimately, your Honour, there has been a significant departure from the [Father’s] position from the time that consent orders were made.
In light of that, your Honour, and where there has been a significant concession by the [the Father], this is not a matter that I would submit your Honour would have regard impacting negatively in respect of the father’s orders that the parties have shared parental responsibility […].[17]
[17] Transcript P196:L30-P197:L7.
I reject the submission the Father has been placed in an “untenable position” by reason of the conduct of the Court. Having re-read the whole of the transcript of the submissions made by Counsel for the Father,[18] it is not clear to me what the basis of this submission was. To the extent that it was in relation to the Father’s Initial Proposal, I addressed that in response to Counsel’s submissions made at the hearing on 25 March 2022,[19] and I have also addressed it in these Reasons for Judgment under the heading ‘Consideration of the Father’s Initial Proposal’. To the extent that it was directed towards any comments that I made in relation to how the Father’s behaviour in relation to the dispute in relation to this issue between the parents may impact on the Father’s application for joint parental responsibility, such comments are unremarkable, given the correspondence the Father sent to the Mother some two (2) months prior to the Final Hearing and which are annexed to the Mother’s 2 March 2022 Affidavit. I have set out some of this correspondence under the heading ‘The Mother’s Evidence’. I have not as yet had the benefit of hearing evidence from the Family Consultant, who has previously recommended joint parental responsibility.[20] The issue of joint parental responsibility remains a matter for further evidence and final submissions.
[18] Transcript P195:L44-P197:L45.
[19] Transcript P197:L10-45.
[20] Family Report, prepared by Family Consultant Ms C, dated 31 March 2020, [99].
No submissions were made by Counsel for the Father in relation to the power the Court has to discharge a final consent order in circumstances where the other parties object to the discharge of the final order, or why the Court should discharge a final order of the Court. On this basis alone I do not accede to the Father’s application in relation to the Amended Proposal.
Be that as it may, I will respond to the submissions made by Counsel for the Mother and the ICL.
Counsel for the Mother submitted the that the Father’s Amended Proposal inappropriately involved the Mother having to deal with another general practitioner, with the end result being that the Mother still had the final decision in relation to X’s vaccination status.[21] Counsel also relied upon the decision of Judge Hughes in Lamos & Radin (No 2) [2022] FedCFamC2F 167 (Lamos & Radin). Counsel in particular referred to Lamos & Radin at [10], which summarised the evidence that the parties relied upon and [11] which summarised this evidence. In Lamos & Radin Judge Hughes was satisfied on the weight of the evidence before the Court, that it was in the child’s best interests that he be vaccinated against COVID-19. Orders appropriate to the child’s circumstances were made accordingly. The decision of Lamos & Radin was referred to with approval by Deputy Chief Justice McClelland in Cranston & Persson (No2) FedCFamC1F 187 (Cranston & Persson) (at [57], [58] and [66]), a decision which was coincidentally delivered the day submissions relating to this matter were being made. This decision is binding on me.
[21] Transcript P194:L26-30.
In Cranston & Persson, the Deputy Chief Justice considered the evidence that was before the Court in relation to the vaccination of children aged between 5 and 11 against COVID-19, the decision in Lamos & Radin and also the Canadian decision of Dyquiangco Jr v Tipay 2022 ONSC1441 (at [55]-[57] and [64]).
In Cranston & Persson, the Deputy Chief Justice summarised the evidence before the Court in relation to vaccination (at [58]) and the potential risks of vaccination (at [59]-[62]).
At [66] the Deputy Chief Justice concluded:
66. In terms of the issue of balancing benefit against risk, having regard to the public health information attached to the mother’s affidavit, I respectfully agree with and adopt the conclusion of Hughes J as set out at [13] of Lamos that:
There is no doubt on this evidence that the COVID-19 vaccines carry with them a risk of harm to the recipient. However, the information provided by these reputable Australian organisations indicates that, as a general proposition, the risks are significantly outweighed by the benefits.
I accept the submissions made by Counsel for the Mother. These submissions have been fortified by the subsequent decision in Cranston & Persson. Given that the Father consents to the Mother having the final decision in relation to X’s vaccination status it is unnecessary for X to undergo a second medical examination by another general practitioner. Having regard to the findings of the Deputy Chief Justice in Cranston & Persson, the Father has not advanced any cogent reason why a second opinion is required. My view is fortified in circumstances where the orders sought by the Father’s Outline of case sought the opinion of only one (1) general practitioner, albeit the Father’s choice, Dr O.
No submissions were made by Counsel for the Mother in relation to the power the Court has to discharge a final consent order in circumstances where the other parties object to the discharge of the final order.
I turn now to the submissions made by Counsel for the ICL. Counsel for the ICL submitted that as the Father had consented to the Mother having the ultimate say as to the recommendations made by each of the two (2) general practitioners, it was not clear what difference it would make by taking X to two (2) different general practitioners. It was submitted that it was not in X’s best interests to be required to attend two (2) different general practitioners. Counsel submitted that X was very young and did not need to be any more aware than she might already be about the dispute between her parents. Being required to be taken to two (2) general practitioners would only enliven X and expose her to the dispute between her parents in a way that the ICL was concerned demonstrates a lack of insight on the part of the Father.[22]
[22] Transcript P198:L28-41.
No submissions were made by Counsel for the ICL in relation to the power the Court has to discharge a final consent order in circumstances where the other parties object to the discharge of the final order.
I agree with the submissions made by Counsel for the ICL. The addition of the opinion of a second general practitioner is not child-focused and not in X’s best interests. In my view it is focussing on the Father’s own concerns, rather than the Father considering X’s best interests. In this regard I take into account ss.60CA and 60CC(3)(f) of the Act. In relation to the Father’s concerns, the following is relevant from the judgment of the Deputy Chief Justice in Cranston & Persson (at [64] and [65]):
64. In terms of the father’s concerns that governments domestically and internationally are “lying” to their citizens about the effects of the virus, Jarvis J in Dyquiangco stated at [23]:
This is not “fake science”. It is not “fake medicine”. Whether there is a drug company conspiracy callously or negligently promoting unsafe medicine (the “lie”) in collusion with federal and provincial authorities this Court leaves to another day and to those who think Elvis is alive. He isn’t. He left the building decades ago.
65. While it must be acknowledged that the father has not contended that there is such a conspiracy, his contention that democratically elected governments have lied to the people who have elected them, in respect to this issue of such democratic and international significance, is devoid of logic and totally without merit. The prevalence of such unfounded views can only impede the collective global efforts of governments around the world to address this significant challenge currently being faced by humanity. Such contentions are not in the interests of these children, nor any other children.
In this case the Father should consider the words of Deputy Chief Justice seriously in light of some of the correspondence that he has sent to the Mother, which is annexed to the Mother’s 2 March 2022 Affidavit. As the Father remains under cross-examination at this time, I expressly refrain from making any further comment about the Father’s behaviour in relation to the dispute between the parents in relation to this issue.
CONCLUSION
By reason of the matters discussed above, I intend to make orders substantially in accordance with the ICL and the Mother’s Proposal, with some drafting amendments. In these circumstances the Father will have the opportunity to attend the relevant appointment with the general practitioner at D Clinic with the Mother and X and to discuss any concerns he has with the general practitioner. In these circumstances it is unnecessary that any written report be provided.
I intend to also make an order that the Family Consultant be provided with a copy of these Reasons for Judgment. As discussed with Counsel during the Final Hearing, the Family Report is dated 31 March 2020. It was agreed with Counsel that the Family Consultant be provided with all relevant updated material. These Reasons for Judgment are part of the updated material.
Orders will be made accordingly.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton QC.
Associate:
Dated: 28 April 2022
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