Lamos & Radin (No 2)
[2022] FedCFamC2F 167
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lamos & Radin (No 2) [2022] FedCFamC2F 167
| File number(s): | CAC2393/2017 |
| Judgment of: | JUDGE HUGHES |
| Date of judgment: | 18 February 2022 |
| Catchwords: | FAMILY LAW – parenting – father wishes to have children receive COVID-19 vaccinations – opposed by mother |
| Cases cited: | Family Law Act 1975 ss 65D, 65DAC, 67ZC |
| Division: | Division 2 Family Law |
| Number of paragraphs: | 23 |
| Date of last submission/s: | 18 February 2022 |
| Date of hearing: | 18 February 2022 |
| Place: | Canberra |
| Solicitor for the Applicant: | Ms Madigan |
| Solicitor for the Respondent: | In person |
| Solicitor for the Independent Children's Lawyer: | Ms Cruise |
ORDERS
| CAC2393/2017 | ||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) | ||
| BETWEEN: | MR LAMOS Applicant | |
| AND: | MS RADIN Respondent | |
| INDEPENDENT CHILDREN'S LAWYER | ||
ORDER MADE BY: | JUDGE HUGHES |
DATE OF ORDER: | 18 FEBRUARY 2022 |
THE COURT ORDERS THAT:
Noting the father has sole parental responsibility for the child X, born in 2010, his application for a specific order in relation to having her vaccinated against COVID-19 is unnecessary and is dismissed.
Notwithstanding order 2 of the orders made on 16 February 2022 giving the parents equal shared parental responsibility, the father is hereby authorised to arrange for the child Y, born in 2015, to be vaccinated against the COVID-19 virus without the consent of the mother, provided Y consents to the vaccination.
Otherwise the application in a proceeding filed on 1 February 2022 and all other extant applications are hereby dismissed.
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 Lamos & Radin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE HUGHES:
INTRODUCTION
These are parenting proceedings in which the father seeks orders to facilitate the two children of the parties receiving COVID-19 vaccinations.
The eldest child, Y, is aged 16. He lives with the mother and currently spends no time with the father. The father seeks orders compelling the mother to arrange for Y to be vaccinated.
The youngest child, X, is aged 11 and lives with the father. She currently spends little or no time with the mother. The father seeks permission to make all necessary arrangements to have her vaccinated.
The independent children’s lawyer (“the ICL”) supports the father’s application.
After hearing the matter earlier today, I made orders and gave a brief outline of my reasons. I indicated that I would provide written reasons for decision within a day or two. These are those reasons.
BACKGROUND
The application was filed on 1 February 2022, shortly before the end of long-running parenting proceedings.
The father’s solicitors had written to the mother on 25 January 2022 seeking her consent to the father arranging to have X vaccinated before the school year re-commenced on 31 January 2022 and asking whether the mother had made arrangements to have Y vaccinated. The mother did not respond.
Two days ago, on 16 February 2022, after the vaccination application was filed but before it was heard, final parenting orders were made in the substantive parenting proceedings. They included an order for the father to have sole parental responsibility for X. Such an order authorises him to make decisions about major long-term decisions concerning X, which includes vaccinations. The orders require him to consult the mother and take into account her views before making any such decision. He has already consulted her about this issue and her views are clear, including as a result of this hearing. In the substantive proceedings I was satisfied that the father could be trusted to make sensible decisions in relation to X’s health and welfare. Nothing in the hearing of the current application changed my view about that. Accordingly, I do not need to make any specific order about vaccination for X and the application, in so far as it relates to X, will be dismissed.
The substantive parenting orders provide for the parents to have equal shared parental responsibility for Y. This requires the parties to consult each other and make a genuine effort to reach a joint decision about major long-term issues concerning him.[1] As the parties are unable to reach a joint decision on this issue, it is necessary for the Court to do so. The Court is empowered to do so by the Family Law Act 1975. [2]
[1] Section 65DAC Family Law Act 1975
[2] See sections 65D and 67ZC
THE EVIDENCE
The father and ICL relied on documentary evidence in the form of fact sheets and information provided to the public by the following Australian government organisations:
(a)The Commonwealth Department of Health;
(b)The Therapeutic Goods administration (“TGA”), part of the Commonwealth Department of Health;
(c)The Australian Technical Advisory Group on Immunisation (“ATAGI”), a specialist advisory panel to the Commonwealth Department of Health;
(d)The NSW Department of Health; and
(e)The NSW Department of Education.
In summary, the information from those organisations can be summarised as follows:
(i)COVID-19 is a virus that can cause serious illness, death and long-term health issues.
(ii)The virus is highly contagious and spreads easily.
(iii)Vaccines assist the immune system to protect from serious illness and long-term effects arising from COVID-19.
(iv)Vaccinations were not approved in Australia until rigorous testing had occurred and the Therapeutic Goods Administration (“TGA”) and ATAGI had established that they were safe.
(v)Vaccinations for children aged 16 and above were approved in Australia in January 2021.
(vi)Vaccinations for children aged 5 to 11 were provisionally approved in Australia in December 2021.
(vii)Children aged 5 to 11 years receive a smaller dose of the vaccine than adults.
(viii)Millions of children have been safely vaccinated across the world.
(ix)Minor side effects of the vaccine can be experienced by adults, young people and children as the immune system responds to the vaccine. More serious side-effects of the vaccine are rare.
(x)There is a very low risk of myocarditis (inflammation of the heart muscle) or pericarditis (inflammation of the outer lining of the heart) as a result of receiving the vaccine but the rate of myocarditis and pericarditis is higher in people who contract COVID-19 than those who have had a COVID-19 vaccination.
(xi)Despite the (low) risk of adverse side effects, vaccination of children and young people is strongly encouraged.
The mother relied on information provided to the public by the TGA about adverse events following vaccinations. That information (updated to 6 February 2022) can be summarised as follows:
(i)To 6 February 2022, the total number of adverse events reported in Australia in people of all ages was 2.1 per 1,000 doses of COVID-19 vaccines. This is a little over .2 of one percent.
(ii)To 6 February 2022, there were 3,400 reports of adverse events in young people aged 12 to 17, from approximately 3.3 million doses of COVID-19 vaccines. This is a little over .1 of one per cent.
(iii)To 6 February 2022, there were 523 reports of adverse events in children aged 5 to 11, from approximately 1 million doses of COVID-19 vaccines. This is a little over .05 of one per cent.
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.
The mother also relied on two articles in support of her opposition to the vaccination of the children. The first was published on a UK website entitled “SUN” which is an acronym for “Save Us Now”. The summary at the beginning of the article is as follows:
Over One Thousand Scientific Studies Prove That the COVID-19 Vaccines Are Dangerous, and All Those Pushing This Agenda Are Committing the Indictable Crime of Gross Misconduct in Public Office
The article was relatively short but attached over 1,000 other articles about various adverse effects of vaccinations. The tone of the article was consistent with the summary and robbed it of any credibility it might otherwise have had.
The second article was an internet post of what purported to be a complaint to the International Criminal Court that various public officials, including the UK Prime Minister and the Chief Medical Adviser to the UK Government, had committed crimes against humanity by promoting COVID-19 vaccinations. I did not read far into the post as it, too, lacked credibility.
The ICL correctly pointed out that the TGA website explicitly stated that its Database of Adverse Events Notifications (“DAEN”) could not be used in substitution for professional medical advice, which should be sought by anyone concerned about or experiencing an adverse event following a vaccination. The father deposed that he had already discussed the vaccination issue with X’s GP.
It is common ground that, during their relationship, neither parent sought to have the children vaccinated. The father deposed that the mother was opposed to vaccination and that he went along with her view in order to keep the peace. The mother disputed that and said the father was positively opposed to vaccinations. Even if that is correct, the father now clearly has a different view. The mother said her view was initially shaped by the experience of her sister, whose two year old daughter almost died from an adverse reaction to a childhood vaccination in New Zealand. She said her sister did a lot of research after that event, upon which the mother has relied in addition to her own research.
The father deposed that, apart from helping the children to avoid contracting the disease, he wanted them to be vaccinated so that they did not contribute to the spread of the disease to other, more vulnerable people. He also relied on statements by the NSW Department of Education to the effect that, as the rate of vaccination in children increases, the likelihood of the school having to close for health reasons decreases. This, in turn, is better for the educational, social and emotional well-being of the children. I accept that.
DETERMINATION
I have no doubt that each parent is genuine in their support of or opposition to the children receiving the COVID-19 vaccine. However, the evidence presented by the father and the ICL was more credible and persuasive than that presented by the mother.
I am satisfied on the weight of the evidence before me that it is in Y’s best interests that he is vaccinated against COVID-19. However, he is 16 years old and entitled to have his views taken into account. There is no evidence of his views, apart from the statement by the mother during submissions that he is opposed to being vaccinated. I accept that is likely so.
There are also very significant practical impediments to the father having Y vaccinated without his active co-operation. It is unlikely in any event that any health professional would administer the vaccine without his consent.
The order sought by the father compelling the mother to have Y vaccinated when she is adamantly opposed to the vaccination is impracticable and would only lead to further litigation in an attempt to enforce the order. I proposed to the parties that I make an order authorising the father to arrange for Y to be vaccinated without the mother’s consent, provided Y consented. The father and the ICL were content with such an order. The mother opposed the order but was confident Y would not consent in any event. I am persuaded that this is an appropriate order because it recognises Y’s age and accords him an appropriate level of self-determination. It also gives Y the opportunity to be vaccinated without upsetting his mother or requiring her consent if that is what he wishes.
| I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Hughes. |
Associate:
Dated: 18 February 2022
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