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…

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 Kopic & Britt

Details

AGLC: Kopic & Britt [2022] FedCFamC2F 515
Case: [2022] FedCFamC2F 515
Decision Date

CaseChat Overview and Summary

This matter came before the Family Court on 23, 24 and 25 March 2022 for final hearing of the Amended Initiating Application filed by the Applicant Mother on 25 January 2022 and the Amended Response to Initiating Application filed by the Respondent Father on 18 February 2022. The Final Hearing was unable to be completed within the three days the matter was listed before the Court and the matter has been adjourned to 26 August 2022 for a further hearing of one day. The matter relates to parenting proceedings concerning the child, X, born in 2015. The Final Hearing was briefly stood down to facilitate discussions to narrow the outstanding issues in dispute between the parties. Following those discussions, the parties submitted a 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 23 March 2022 Final Orders included Order 19 which required the parties to take X to a general practitioner at D Clinic for advice and recommendations as to 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; the advantages and disadvantages of X being vaccinated against COVID-19; and 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. On 25 March 2022 Counsel for the Father advised the Court that the Father had withdrawn his consent to Order 19. Counsel for the Father subsequently forwarded to the Court, copying all parties, an amended Minute of Proposed Orders (Father’s Amended Proposal). The Father now seeks the following orders: (a)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:(i)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;(ii)The advantages and disadvantages of X being vaccinated against COVID 19;(iii)A 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. (b)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. The Father’s Amended Proposal is opposed by the Mother and the Independent Children’s Lawyer. The issues to be determined are: (a)Whether the parents should be required to take X to two separate general practitioners for advice and recommendations in relation to 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; the advantages and disadvantages of X being vaccinated against COVID-19; and 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 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. The Court determined that the parents should be required to take X to one general practitioner at D Clinic for advice and recommendations in relation to the matters referred to in sub-paragraph (a). The general practitioner consulted in accordance with sub-paragraph (a) should not be required to provide a written recommendation. In making the orders, the Court was guided by the principles set out in s.60CA of the Family Law Act 1975 (Cth) 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. The Court also had regard to s.67ZC of the Act which provides that 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. 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. The Court also ordered that the Family Consultant be provided with a copy of these Reasons for Judgment.

Orders