McGowan & Brennan
[2022] FedCFamC2F 1082
•17 August 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McGowan & Brennan [2022] FedCFamC2F 1082
File number(s): SYC 2614 of 2022 Judgment of: JUDGE ELDERSHAW Date of judgment: 17 August 2022 Catchwords: FAMILY LAW – PARENTING – COVID-19 – Best interests – Vaccinations – Judicial notice – Where the mother seeks the father be restrained from causing the child to be vaccinated against the COVID-19 virus – Where the father seeks sole parental responsibility with respect to having the child vaccinated against COVID-19 – Where the child is nine years of age – Where the child has received the first dose – Where there are issues of whether judicial notice can be taken of the Government health advice – Where the mother adduced expert evidence recommending against administering the vaccine – Where there was no adversarial expert evidence from the father – Where the father is permitted to cause the child to receive all vaccinations against the COVID-19 virus – Where the mother’s application for costs is dismissed – Where the parties shall share equally in the costs of the Independent Children’s Lawyer Legislation: Evidence Act 1995 (Cth) ss 144(1), 183
Family Law Act 1975 (Cth) ss 43, 60CA, 60CC, 65DAA, 67ZC,68B, 117
Cases cited: Banks & Banks (2015) FLC 93-637; FamCAFC 36
Clay & Dallas [2022] FCWA 18
1 Covington & Covington (2021) FLC 94-014; FamCAFC 52
Cranston & Persson (No 2) [2022] FedCFamC1F 187
Holland v Jones (1917) 23 CLR 149
I & I (No. 2) (1995) FLC 92–625; FamCA 80
McGregor & McGregor (2012) FLC 93 – 507; FamCAFC 69
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664; FamCAFC 157
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; FamCA 158
Penfoldv Penfold (1980) 144 CLR 311
2 U v U (2002) 211 CLR 238
Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145
Division: Division 2 Family Law Number of paragraphs: 128 Date of hearing: 10 August 2022 Place: Sydney Counsel for the Applicant: Mr Weightman Solicitor for the Applicant: Legalbit Pty Ltd The Respondent: The Respondent appeared in person Counsel for the Independent Children's Lawyer: Ms Ryan Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers ORDERS
SYC 2614 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MCGOWAN
Applicant
AND: MR BRENNAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
17 AUGUST 2022
THE COURT ORDERS THAT:
Vaccination Against COVID-19
1.Except as otherwise agreed between the parties in writing, the father is permitted to cause the child, X born 2012 (“X”), to receive all vaccinations against the COVID-19 virus as recommended by the Australian Technical Advisory Group on Immunisations for children aged five to 11 years of age.
2.The father must notify the mother of the date, time and place that any vaccination of X against the COVID-19 virus is to occur at least seven days in advance of such appointment.
3.The father must notify the mother in writing and provide her with a copy of any vaccination certificate or other document recording X’s COVID-19 vaccination within 24 hours of any such vaccination occurring.
Costs
4.The mother’s Application for Costs against the father filed 10 August 2022 be dismissed.
5.Within 28 days from the date of these Orders, the father shall pay the sum of $1,650 to Legal Aid NSW on account of his contribution to the costs of the Independent Children’s Lawyer with respect to the defended hearing.
Next Court Date
6.The matter is otherwise listed for directions before a Judicial Registrar on 6 September 2022 at 10.00am with respect to the father’s application for sole parental responsibility for all decisions relating to the health and medical treatment of X, with such to be conducted by way of Microsoft Teams.
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 the pseudonym McGowan & Brennan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE ELDERSHAW:
INTRODUCTION
This judgment concerns the discrete issue as to the vaccination of the child of the parties, X born 2012 ("X") against the COVID-19 virus. X is currently nine years of age.
The Applicant mother, Ms McGowan (“the mother”) was born 1976 and is currently 45 years of age. The Respondent father, Mr Brennan (“the father”), was born 1974, and is presently 48 years of age. X is the only child of the parties.
The mother commenced proceedings in respect of X under part VII of the Family Law Act 1975 (Cth) (“the Act”) on 21 April 2022 pursuant to the COVID-19 List procedures of the Court. She sought that the father be restrained from causing or permitting X from receiving any further doses of the vaccination against the COVID-19 virus.
The father joined issue to the mother’s application by his Response filed on 9 May 2022. The father also seeks an Order for sole parental responsibility about all major long term decisions about X’s health generally.
This judgment only concerns the issue of the COVID-19 vaccination. The balance of the father’s application will be managed through the pathway for matters filed after 1 September 2021.
The mother is concerned about the safety of the COVID-19 vaccine for children. She is not opposed to vaccinations per se, having facilitated X’s vaccinations against a range of childhood illnesses. She is, however, concerned that the COVID-19 vaccine is novel and that there is limited clinical data to support a conclusion that the vaccine is sufficiently safe and efficacious for children. Her contention relating to X is that the risks of the vaccine are not justified at present when compared to the risk to him of disease.
The father is concerned about the safety of X if he is not vaccinated. He contends that COVID‑19 is a real and present threat to X’s health and that of other members of his household and the community at large. The father acknowledges that the vaccines carry risks, but contends that the Australian Technical Advisory Group on Immunisation (“ATAGI”) and other public health agencies have weighed this risk in their assessment and ultimately recommend that children aged five to 11 years should receive the vaccine.
This case does not carry with it any eccentric features:
(a)There is no dispute that COVID-19 is a real disease and present within the population;
(b)There is no suggestion that the COVID-19 pandemic has been anything other than a major health crisis; and
(c)There is no so-called “anti-vax” sentiment – X has been vaccinated against the usual childhood illnesses.
For the Reasons I am about to explain, I will make Orders that X be vaccinated against COVID‑19 as soon as reasonably practicable.
DOCUMENTS
The mother relies on:
(a)Her Case Outline filed 9 August 2022;
(b)Initiating Application filed 21 April 2022;
(c)Affidavit of Ms McGowan filed 21 April 2022;
(d)Affidavit of Ms McGowan filed 13 May 2022;
(e)Affidavit of Ms McGowan filed 25 July 2022;
(f)Affidavit of Dr B filed 25 July 2022; and
(g)Specific Issues report of Ms C dated 5 August 2022.
The father relies on:
(a)His Case Outline filed 5 August 2022;
(b)Response to Initiating Application filed 9 May 2022;
(c)Affidavit of Mr Brennan filed 21 April 2022;
(d)Affidavit of Mr Brennan filed 25 July 2022;
(e)Parenting Questionnaire filed 5 May 2022;
(f)Notice of Risk filed 5 May 2022;
(g)Medical Certificate completed 5 May 2022 from Dr D (No 1);
(h)Medical Certificate completed 5 May 2022 from Dr D (No 2) (with final sentence added); and
(i)Health Care Complaints Commission Investigation Report and covering letter addressed to Mr E (the complainant) dated 7 July 2010.
The father also relies on the following documents:
(a)ATAGI’s recommendations for the use of the paediatric Pfizer COVID-19 vaccine in children aged five to 11 years in Australia dated 21 February 2022;
(b)“Pfizer COVID-19 vaccine for children aged five to 11: Information for parents and guardians” published by the Commonwealth Department of Health and Aged Care; and
(c)“Let’s do this”: COVID-19 vaccination for children (five to 11 years) published by NSW Ministry of Health, December 2021.
The Independent Children’s Lawyer relies on the Specific Issues Report of Ms C dated 5 August 2022.
Where the parties have cited, and opined upon, scientific material in their affidavits, I have treated those parts as submissions.
PROPOSALS
By her Initiating Application, the mother proposed a permanent restraint on X being vaccinated. However, before the hearing commenced, she amended her proposal and sought Orders that:
(a)Pursuant to s 68B of the Family Law Act 1975 (Cth), the father shall not cause or allow X to receive the COVID-19 vaccine without prior written consent of the mother;
(b)Upon X attaining the age of 14 years, that the parents shall facilitate X to receive the COVID-19 vaccine if that accords with X’s view, and if there is any doubt as to X’s view, the parties will do all acts and things to attend a child inclusive Family Dispute Resolution process to obtain his views; and
(c)The father pays to the mother the sum of $525 on account of half of the fee of Dr B attending court on 10 August 2022.
The father also amended his proposal on the day of the hearing such that he now seeks that:
(a)The father have sole parental responsibility for all decisions relating to the COVID-19 vaccine for X.
(b)In the alternative, that X receive the COVID-19 vaccine upon attaining the age of 12 years of age.
If the father is granted sole parental responsibility for this issue, he will cause X to be vaccinated immediately.
The Independent Children’s Lawyer proposes that X should be permitted to be vaccinated at the age of 14 years, provided that this accords with his views.
ISSUES FOR DETERMINATION
In light of the mother’s amended proposal, there is no issue that X should receive the vaccine, subject to his views.
The critical issue for determination is when it is in X’s best interests to receive the vaccination.
THE LAW
As this matter concerns parenting arrangements for a child the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) apply.
Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
The factors for consideration are contained in s 60CC of the Act. I am cognisant of the primary considerations in s 60CC(2)(a) and (b), and of the hierarchy established by s 60CC(2A). I am also cognisant of the additional considerations in s 60CC(3).
Also of relevance are ss 43 and 67ZC of the Act.
Section 43 of the Act sets out the principles to be applied in the exercise of the Court’s jurisdiction and includes, in subsection (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 relevantly provides:
(1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
Note:Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.
(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.
Section 60CC sets out the relevant considerations to which the Court should have regard in arriving at a determination as to what is in the best interests of the child. I need only consider the factors in s 60CC of the Act to which issue has been joined: Banks & Banks (2015) FLC 93-637 at [48].
The Court has jurisdiction to make an Order providing for a child to be vaccinated: Covington & Covington (2021) FLC 94-014 at [42] and [43].
The Court is not bound by the competing set of Orders proposed by the parties: U v U (2002) 211 CLR 238 at [80].
EVIDENCE
The parties commenced their relationship in 2006 and were married in 2009. They separated on a final basis on 14 March 2016, at which time X was three and a half years of age.
Since separation, X has lived in a shared care arrangement. There are no parenting orders in place.
In Australia, children aged five to 11 years became eligible for a COVID-19 vaccine in January 2022. X is a member of that cohort.
The parties entered into a discussion about whether to vaccinate X in January 2022.
On 27 January 2022, the mother communicated to the father:
At this stage, from the information that is available, I am not comfortable consenting to [X] receiving the Covid-19 mRNA vaccination.
On 30 March 2022, the father caused X to receive his first dose of the vaccine.
On 31 March 2022, the mother received a call from X’s school to say he was not feeling well from his vaccination the day before. This was the first time the mother learned that X had been vaccinated against COVID-19.
At the time the vaccination occurred, the father says X was concerned that, if he was vaccinated, the mother would be angry with him. The father reassured X that the mother would not be angry with him, but any anger would be directed towards the father.
It was common ground that there is no medical barrier to X receiving the COVID-19 vaccine.
EVIDENCE OF THE COURT CHILD EXPERT
A Specific Issues Report was obtained to ascertain evidence on the nature of X’s relationship with each of his parents; any characteristics of X that may be relevant to him receiving or not receiving a vaccination against COVID-19; and X’s views about being vaccinated.
The expert was not required for cross examination.
Of the mother, the expert reported at paragraph 10:
[Ms McGowan] considers that [X] cannot be himself when he is with his father and that he tends to say and do things to please his father, but then reveals how he really feels when he returns to her care.
Of the father, the expert reported at paragraphs 16 and 17:
[Mr Brennan] considers that [X] has always tried to appease both parents, telling each of them different things.
… [X] was well aware that [Ms McGowan] did not want [X] to be vaccinated, but that he spoke to [X] about people having a choice and that members of the [Brennan] household were choosing to be vaccinated for themselves, the community and the vulnerable. He denied coercing [X] in any way. He said that [X] indicated he wanted to get vaccinated. [Mr Brennan] said that [X] was concerned that [Ms McGowan] would be angry with him ([X]) but that he told [X] she would be angry with him ([Mr Brennan]), and not with [X]. [Mr Brennan] acknowledged that the way [Ms McGowan] found out that [X] had been vaccinated was “horrible” and could have been avoided if he had spoken to her about it the next morning.
As to X, the expert reported at paragraphs 24 and 25:
He seems to perceive that his father wanted him to have [the vaccine] because they were about to travel overseas to see family, some of whom were elderly, and him ([X]) having the vaccine could help to protect those members. [X] seemed to perceive that his mother did not want him to have the vaccine, but does not know why this is the case. [X] said that, at the time, he did not know whether he should or should not have the vaccine. He said he told his father he wanted to have it, so his father took him to get it. However, he indicated that he did not know if he wanted it or not, even though he told his father he wanted it. [X] said that, at that time, he was worried that, if he said he did not want it, his father may have gotten angry with him, and, if he said he did want it, his mother may have gotten angry with him.
…When he was advised that his father thinks it would be best for him if he had another dose and that his mother thinks it would be best for him if he does not have another dose, [X] spontaneously stated “I don’t care if I don’t or do.” This was explored further with [X], but he maintained a position of not expressing any view on the issue of whether he should or should not, or wants or does not want, any further doses.
The expert opined that:
(a) [X] has a meaningful, loving and close relationship with each of his parents;
(b) If [X] is exposed to or drawn into, the conflict between his parents, it will have a detrimental effect on him and his relationships;
(c) While the parents appear to have protected [X] from exposure of their conflict about further COVID-19 vaccinations (noting there was a restraint to this effect), they will need to continue to be mindful of their conflict and disputes and ensure that they make every effort to resolve those disputes prior to discussing the issues with [X] and certainly prior to taking any action that would place [X] in any kind of situation of needing to lie to a parent or inform a parent of something significant;
(d) There are no developmental or psychological characteristics of [X] that are relevant to the issue of whether he receives the vaccine; and
(e) [X] did not indicate a particular view about being vaccinated. He is likely to be looking for instruction and reassurance from his parents about whether or not he should receive the vaccination.
ADVERSARIAL EXPERT EVIDENCE AND GOVERNMENT HEALTH ADVICE
To avoid repetition, I have set out the expert evidence and health advice in the course of my consideration.
EVIDENTIARY MATTERS
Admissibility of Dr B’s Report
The mother relies on an Adversarial Expert Report prepared by Dr B dated 21 July 2022.
Dr B’s evidence was unchallenged.
The father submits Dr B’s report is inadmissible for the reasons set out at paragraph 35 of his Case Outline Document. The matters raised in the paragraph go to the weight to be given to the report rather than its admissibility.
I have placed no weight on the submissions at paragraph 35(g), (h) and (i) and 36 of the father’s written submissions on the basis that the material to which they refer is not properly before the Court and the matters were not put to Dr B in cross examination.
Judicial Notice, Admissibility and Inferences Regarding Government Health Advice
The father contends that I can take judicial notice of the “ATAGI recommendations on the Pfizer COVID-19 vaccine use in children aged five to 11 years” dated 21 February 2022.
In this regard, the father points to Notation E made by the Senior Judicial Registrar on 22 April 2022 which reads:
Pursuant to section 144 of the Evidence Act 1995 (Cth), at the Hearing, the Court may take judicial notice of published advice issued by public health authorities, including:
(1) The document “ATAGI Recommendations on the Use of COVID-19 Vaccinations in All Young Adolescents in Australia, dated 27 August 2021 available at …;.
(2) “ATAGI recommendations on the Pfizer COVID-19 vaccine use in children aged 5 to 11 years’ dated 10 December 2021 available at …
Section 144(1) of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides:
That proof is not required about knowledge that is not reasonably open to question and is either:
(a) Common knowledge in the locality in which the proceeding is being held or generally; or
(b) Capable of verification by reference to a document the authority of which cannot reasonably be questioned.
In Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145 at [64], McHugh J held, amongst other things, that a court may judicially notice a fact whenever it is:
… so generally known that every ordinary person may be reasonably presumed to be aware of it.
In the same case, Callinan J at [162] to [169], under the heading “Statistics – Judicial Notice”, applying Holland v Jones (1917) 23 CLR 149 per Isaacs J held that, in order for judicial notice to be taken:
… every ordinary person may be reasonably presumed to be aware of it, the Court “notices” it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary.
[…]
Judges are not free to apply their own views and to make their own inquiries of social ethics, psychology, politics and history without requiring evidence or other proof.
[…]
Two reasons why this is so are immediately apparent. The first is that parties must be given an opportunity to deal with all matters which the Court regards as material. And the second is that rarely is there any universal acceptance of what is true history, politics or social ethics. Anyone with any knowledge of these will be aware that there is a huge, indeed probably immeasurable, range of differences as to what they legitimately are, and the ways in which they are to be identified, understood and applied.
[…]
That is why judges prefer to and generally are required to act on evidence actually adduced and are conservative about taking judicial notice of matters of supposed notoriety.
In McGregor & McGregor (2012) FLC 93-507, the Full Court of the Family Court of Australia said:
The conflict of expert opinion evidence in relation to the benefits and risks of immunisation preclude any prospect of the Court taking judicial notice under section 144 of the Evidence Act. If an issue in proceedings is controversial, it is almost inevitable that there will be differing credible expert opinions in relation to it and demonstrably, it would not fall within the operation of section 144.
In this case, given the public discourse about the COVID-19 pandemic and vaccination program, I accept that the existence of the health advice is common knowledge. However, the purpose upon which the father relies on the advice pertains to the accuracy or correctness of its substance. The substance of the advice is that of an opinion.
Having regard to the authorities, and noting that there is a report from Dr B which expresses a different opinion, the substance of the health advice does not fall within the operation of s 144 of the Evidence Act.
In a case addressing whether to vaccinate a chid against the COVID-9 virus, Sutherland DCJ of the Family Court of Western Australia in Clay & Dallas [2022] FCWA 18 said of judicial notice and the approach to expert evidence at [42]:
Whilst it is not always possible, it is preferable for the Court to have credible expert evidence about the disease, the vaccine and the child or children in question and that the Court should not rely on information provided by peak scientific organisations unless that information is properly before the Court, for example, through an expert witness.
That said;
(a)There is no dispute that the advice of ATAGI and government health advisors is admissible in the proceedings;
(b)Pursuant to s 183 of the Evidence Act, I can infer that the documents that have been prepared by, and set out the advice from, ATAGI and the government health advisors, are persons who are appropriately qualified to provide that advice to the government, and through government, to the people of Australia: Cranston & Persson (No 2) [2022] FedCFamC1F 187 at [34]-[40];
(c)While it is preferable, it is not necessarily essential, that the information from ATAGI be before the Court through an expert witness; and
(d)This matter concerns an evaluation of risk to a child, for which as much information as possible would assist me in making a decision. I also note that in child-related proceedings, the rules of evidence do not apply by reason of Division 12A of Part VII of the Act.
CONSIDERATION
What are the risks to X in being, or not being, vaccinated against COVID-19 while a member of the cohort of children aged five to 11 years?
The ultimate conclusions of Dr B are located at paragraphs 68 and 69 of his report and are as follows:
There is a statistically or virtually nil risk of serious COVID-19 in general affecting children aged 5 to 11 years – there seems to be little benefit to be gained by vaccinating these children. But there is a clear and significant risk of serious adverse effects including myocarditis, pericarditis and death in this age group following gene-based COVID-19 vaccination as well as other serious adverse effects.
In addition, based on recent laboratory research, there is the potential for serious long-term adverse effects including lifelong and inherited genetic effects which cannot be predicted at the present time. In my opinion and based on the published science, there is no compelling benefit case for the administration of gene-based COVID-19 “vaccines” […] to any child aged 5 – 11 years of age…”
The ultimate conclusion of ATAGI can be extracted as:
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. […]
ATAGI believes that the benefits of vaccination warrant a recommendation for vaccination in this age group. Unvaccinated children will remain at greater risk of adverse outcomes related to the COVID-19 pandemic.
ATAGI’s conclusions are consistent with the opinions of the Federal and State health authorities, upon which the father relies.
In order for me to assess the weight to be given to the ultimate opinions, it is necessary that I consider the basis on which such opinion is expressed.
I observe that the risks identified by Dr B and ATAGI can be classified into three domains:
(a)Adequacy of vaccine evaluation in terms of patient safety, efficacy and effectiveness;
(b)Relationship between the vaccine and adverse events; and
(c)Disease severity and transmissibility in children aged five to 11 years.
Adequacy of vaccine evaluation in terms of patient safety, efficacy and effectiveness for 5 to 11 year olds
Dr B’s evidence as vaccine evaluation includes:
(a)Vaccines that are released on the basis of provisional approval cannot be considered fully evaluated and are experimental;
(b)The “provisional approval” pathway involves an expedited review system enabling therapeutic products, including vaccines, to be made available for use when there is a perceived urgent need, even though the amount of safety and efficacy data normally required for approval is not available. The manufacturer is required to submit further data over a defined period to address outstanding safety and efficacy issues; and
(c)The COVID-19 mRNA vaccine is “unprecedented” in that it is directed towards a disease that has never before been successfully treated. Such vaccines are expected to take more than 12 years to develop due to the technical difficulties and they are expected to have a very low chance (about 5 percent) of proving safety and efficacy in even early Phase II clinical trials involving small numbers of individuals and a very much lower chance (about 2 percent) of moving to larger Phase III clinical trials and demonstrating safety and efficacy before being considered for marketing.
ATAGI’s advice about vaccine evaluation includes:
(a)Clinical trials were conducted prior to the Omicron variant and the results reflect vaccine efficacy against older strains of the virus. Vaccine efficacy or effectiveness against the Omicron strain in children aged five to 11 years is not yet known;
(b)The paediatric Pfizer vaccine has been demonstrated to reduce COVID-19 in children five to 11 years of age. Among 2,186 trial participants aged five to 11 years without evidence of prior COVID infection, two doses of 10 micrograms of the Pfizer vaccine were 90.7 percent effective at preventing laboratory confirmed COVID-19 from day seven after the second dose;
(c)Approval of the vaccine is based on results of a clinical trial demonstrating that the vaccine is highly effective and that most side effects are mild and transient; and
(d)Vaccine effectiveness data from real world experience is not yet available for children aged five to 11 years but are expected in coming months.
I infer from ATAGI’s advice that “efficacy” refers to results in clinical trials and “effectiveness” refers to results from actual or real-world experience.
Given ATAGI’s advice is that the efficacy of the vaccine was assessed in clinical trials that occurred prior to the Omicron variant and its concession that efficacy or effectiveness of the vaccine against Omicron is not yet known, I infer that the rate at which COVID was assessed as being reduced in the five to 11-year-old cohort (i.e. 90.7 percent) may be subject to the same limitation.
In relation to the aspect of risk relating to vaccine evaluation for five to 11 year olds, I find that:
(a)The vaccine for which X is eligible has received provisional approval by the Therapeutic Goods Administration;
(b)The amount of safety and efficacy data usually required prior to a drug being released to the market has not been obtained for the vaccine, on account of urgency;
(c)The vaccine has not been fully evaluated although data continues to be gathered;
(d)To the extent the drug was evaluated in clinical trials prior to the Omicron variant, such evaluation indicated efficacy, however efficacy against the Omicron variant is not yet known; and
(e)Real world or actual vaccine effectiveness is not yet known.
Relationship between the vaccine and adverse events for five to 11 year olds
The terms “adverse events”, “adverse side effects” and “side effects” appear to be used interchangeably in the evidence before me. I will use “adverse events” for convenience.
Dr B’s evidence as to adverse events includes:
(a)The COVID-19 vaccines deliver genetic material in a vector to produce a spike protein similar to that found on the surface of the coronavirus. It is also the spike protein produced by the vaccine which is understood to cause the unprecedented number of serious adverse events and death;
(b)As at 23 July 2022, five children in the five to 11-year age group have died according to the Drug Adverse Reporting Notifications system used in Australia. Two of these five children are described by Dr B as an “adverse event following immunisation”. The other three were respectively “cardiac arrest, generalised tonic-clonic seizure”; “cardiac arrest” and “abdominal pain, cardiac arrest”;
(c)At the time of Dr B’s report:
(i)There were 213 cases of chest pain which were said by him to be indicative of myocarditis and pericarditis, and which have been reported in the DAEN website for children aged 5 to 11 years; and
(ii)The TGA has received 1,500 reports of adverse drug reactions to the COVID-19 vaccine for children aged five to 11 years including 35 cases of suspected myocarditis;
(d)There is a connection to the rates of myocarditis per million doses by age cohort following the second dose of the Pfizer and Moderna vaccines in Australia – these being the vaccines administered to children;
(e)There is a clear and significant risk of serious adverse effects including myocarditis, pericarditis and death in the five to 11-year-old age group following the gene-based COVID vaccine and other serious side effects; and
(f)There is the potential for serious long term adverse side effects which cannot be predicted at present.
ATAGI’s advice about adverse events includes:
(a)As at February 2021, over 8.9 million children aged five to 11 years have received at least one dose of the paediatric Pfizer dose in the United States and 6.6 million have received a second dose. Data on the safety of the vaccine is available for this large real-world population, which is already greater in number than the total population of children aged five to 11 in Australia, being 2.3 million. The risk of myocarditis after the second dose of the Pfizer vaccine in children aged five to 11 years is estimated to be 2 per million doses in females and 4.3 per million in males. This is several fold lower than the reporting rates in adolescents and young adults; and
(b)The paediatric Pfizer vaccine was demonstrated to be well tolerated in children aged five to 11 years with most adverse events being mild and transient. The systemic adverse reactions most frequently reported were fatigue, headache, muscle pain, chills and fever with the latter occurring in 6.5 percent of children after the second dose. There were no serious adverse events reported in the trial that were considered to be related to the vaccination. Local and systemic adverse events in the five to 11 age group were milder than in the 16 to 25-year age group.
With respect to Dr B’s evidence, despite it being untested, I do not know what, if anything I am to infer from the expression “an unprecedented number” of serious adverse events and deaths means in circumstances where the disease is unprecedented and the vaccine is unprecedented. Is it a statement of the obvious given the entire context is ‘unprecedented’ or does the use of the adjective amplify the opinion in some other way?
Next, Dr B cites five deaths of children in the five to 11-year cohort. However, on the face of the report only two are described in a manner that links them to an “adverse event following immunisation”. The other three are not overtly connected. Given Dr B’s discussion elsewhere in his report distinguishing between children whose death was causally connected to COVID‑19 (died “of” or “due to”) and those who died “with” the virus, I am unsure how to approach the three deaths which are not described by reference to immunisation, other than with caution.
Next, Dr B says that there were 213 cases of children with chest pain “indicative” of myocarditis or pericarditis, and 35 cases of suspected myocarditis. I am not assisted by the report to understand what weight, if any, I should place on the existence of a symptom which “indicates” a condition, or suspected to be the condition, but not diagnosed as such.
In relation to the aspect of risk relating to adverse events, I find that:
(a)The most common side effects include a sore arm, headaches and fatigue. These usually go away on their own or are treated with over-the-counter medication like paracetamol or ibuprofen;
(b)There is a risk to X of experiencing an adverse event after being vaccinated against COVID-19;
(c)Such risk includes myocarditis, pericarditis or death;
(d)Myocarditis and pericarditis are serious adverse events;
(e)Death is a catastrophic adverse event;
(f)6.6 million children aged children to 11 years in the United States have received a second dose, of which 4.3 male children per million developed myocarditis;
(g)Two, and possibly up to five, children in the age cohort in Australia have died in circumstances which may be related, whether causally or correlatively, to receiving the vaccine;
(h)The incidence of X experiencing a common side effect is high but the severity of that risk is likely to be acceptable; and
(i)The incidence of X experiencing a serious adverse event is low however the severity of that risk, if experienced, may be serious or catastrophic, i.e. unacceptable.
Disease severity and transmissibility in children aged 5 to 11 years.
Dr B’s evidence as to disease severity and transmissibility includes:
(a)There is no compelling case for administering the gene based vaccine to children aged five to 11 years;
(b)The risk of death due to COVID-19 may range from exceedingly rare to virtually or statistically nil; and
(c)There is a lack of information about this age group which renders tenuous the assessment of risk of death in children due to COVID-19.
ATAGI’s advice about disease severity and transmissibility includes:
(a)Transmissibility of infection in younger children is lower than in older age groups;
(b)Children aged five to 11 years (8.9 percent of the population) were the least likely of all age groups to require hospitalisation or ICU admission for COVID-19;
(c)Children aged five to 11 years accounted for 0.7 percent of COVID-19 related hospitalisations in Australia, and for 0.04 percent of COVID-19 related ICU admissions over the period 6 June 2021 to 7 October 2021 (during the Delta outbreak);
(d)The reported proportion of hospitalised cases is likely to be an over-estimate of severe disease since children are often hospitalised for social indications (e.g. if their carer is hospitalised for COVID-19);
(e)Deaths in children due to COVID-19 are rare. Data from the United Kingdom suggests that two per every one million children infected with the virus died of COVID-19;
(f)There are a number of risk factors for severe illness for children aged five to 11 years arising from stated risk factors such as obesity, chronic pulmonary disease, congenital heart disease and neurological disease;
(g)Multisystem inflammatory syndrome is temporally associated with COVID-19 infection (“MIS-C”). This is a rare condition with an estimated incidence of one in 2,469 cases and typically occurs two to six weeks post infection in children with a median age of nine years. The severity ranges from mild to life threatening and can include severe heart disease;
(h)Children aged five to 11 years may experience “Long COVID”, being a broad array of symptoms for over three months post-infection. Long COVID appears to be less severe in children than in adults; and
(i)The vaccine has been recommended for children, with the recommended dosage being two injections containing 10 micrograms each, is given approximately eight weeks apart. This is a smaller dose than for adolescents and adults.
As to Dr B’s evidence, I cannot find a link between his conclusion that the risk of death due to COVID-19 is “exceedingly rare to virtually nil” and his contention that the assessment of risk of death in children due to COVID-19 is “tenuous” having regard to the lack of information.
I note that ATAGI refers to children in the five to 11-year cohort being administered a smaller dose. Absent an adversarial expert in support of vaccination, or any cross examination of Dr B, I am unable to infer or conclude that this mitigates the risk of the vaccine, or whether it is a reflection of dosage being titrated to correspond, for example, to paediatric versus adult metabolism or body mass.
In relation to the aspect of risk relating to disease severity and transmissibility, I find that:
(a)Children aged five to 11 years are less likely to experience severe disease from COVID‑19, other than those with certain medical conditions;
(b)The risk of death in children aged five to 11 years from COVID-19 is uncertain, however, the available data suggests that the risk of death in children aged five to 11 years from COVID-19 is rare or minimal;
(c)Between June and October 2021, during the outbreak of the Delta strain, children accounted for 0.4 percent of COVID-related hospital admissions however this is likely to over-estimate severe disease in that population; and
(d)Transmissibility of infection in children aged five to 11 years is lower compared to older age groups.
On balance, I find that:
(a)The risk to X from receiving the vaccine is uncertain. The available data, which pre-dates the Omicron variant, suggests a reduction of COVID-19 within the age cohort;
(b)The risk of X experiencing a common side effect is high but the severity of such side effects is acceptable;
(c)The risk of X experiencing a severe adverse event from the vaccine is low but the severity of such reaction may be unacceptable;
(d)If X contracts COVID-19, he is less likely to experience severe disease, less likely to be hospitalised, and less likely to transmit the disease as compared to individuals in other age cohorts;
(e)If X contracts COVID-19, he is at risk of developing multisystem inflammatory syndrome, which may include severe cardiac disease, and/or ‘long COVID’;
(f)The risk of death to X from COVID-19 is uncertain, however, the available data suggests that the risk is rare or minimal; and
(g)Both the vaccine and the disease present the risk of death or severe heart disease. In both scenarios, the incidence of risk is low but the severity may be unacceptable.
Having regard to the matters at (a) to (g) above, I find that the risks to X in being, or not being, vaccinated against COVID-19 favour neither party’s case.
What are the risks to X in being vaccinated against COVID-19 at age 14?
All parties contend that X should be vaccinated against COVID-19 at, or by the time he is, 14 years of age. Thus, there is no issue of risk relating to vaccinating X at the age of 14 years which favours either party’s case.
What is the risks to X in being vaccinated, or not being vaccinated, against COVID-19 at age 12?
There is no evidence before me addressing the risks of being, or not being vaccinated against COVID-19 at the age of 12. The health advice on which the father relied pertained to children aged five to 11 years. Dr B’s report, although referring to adverse incidents and similar matters in various age groups, limited his opinion to five to 11 year olds.
The father identified that the age of 12 marks the start of the next age-based cohort of children.
The mother’s rationale for the age of 14, from the perspective of risk, as opposed to any earlier, such as age 12, is that by then, there will be about seven years of safety and efficacy data for the vaccine.
As I understood the submission, this will provide adequate data to better evaluate the safety and efficacy of the vaccine. The mother’s reliance on the seven-year time frame for safety data arises from Dr B’s opinion at paragraph 20 of his report, which reads:
Conventional vaccines usually take about 7 years to develop and test. In a 2018 publication sponsored by the Bill and Melinda Gates Foundation, vaccines were divided into three categories: simple, complex and unprecedented. The unprecedented category represents those vaccines directed towards a disease that has never before been successfully treated and include vaccines against HIV and malaria. According to authors Seneff and Nigh, unprecedented vaccines are expected to take more than 12 years to develop due to the technical difficulties and they are expected to have a very low chance (about 5%) of proving safety and efficacy in even early Phase II clinical trials involving small numbers of individuals and a very much lower chance (about 2%) of moving to larger Phase III clinical trials and demonstrating safety and efficacy before being considered for marketing. The gene-based COVID-19 “vaccines” were developed in less than a year and are supported by abbreviated safety and efficacy clinical data. These gene-based “vaccines” are in the “unprecedented” category.
(Emphasis added)
In circumstances where the COVID-19 vaccine is, according to the mother’s own expert, an “unprecedented” category of therapy and thus expected to take more than 12 years to develop, there is no evidentiary foundation for the submission that, by the time X attains the age of 14 years, there will be adequate data to demonstrate the safety and efficacy of the vaccine.
If the intention of the submission was only that seven years of data will provide more data, albeit not 12 years’ worth, then again I am without an evidentiary foundation as to the why I can dispense with the additional five years of data described by paragraph 20 of Dr B’s report for unprecedented therapies, upon which the mother otherwise relies.
On balance, I find that there is no cogent basis for finding that there is an unacceptable risk to X in receiving the vaccine when he attains the age of 12 years in circumstances where:
(a)All parties agree that X can be vaccinated by, if not before the age of 14 thus, there is no issue of risk to X in being vaccinated at this age;
(a)Children aged 14 years are in the cohort of adolescents which spans from 12 to 16 years; and
(a)The mother’s rationale for five more years to pass for the vaccine to be evaluated does not accord with her own expert’s evidence on this issue.
What are the benefits to X in being vaccinated against COVID-19?
Dr B cites no benefit to X in obtaining the vaccine, other than the corollary that he will avoid the risks of the vaccine.
ATAGI cites benefits of the vaccine which include the corollary of avoiding the risk of the disease and other wider social and/or indirect benefits.
To the extent that the benefits to X of being vaccinated, or not being vaccinated, are the corollary of the risk evaluation, there is no need to repeat my findings.
As to wider social and/or indirect benefits, ATAGI identifies that vaccination of children aged five to 11 years:
(a)Has the anticipated benefit of reducing the likelihood of school closures, and disruptions to extra-curricular activities and social activities;
(b)Is anticipated to reduce parental absenteeism and isolation of children and their families;
(c)May reduce disruption to usual activities which may have positive impacts on the mental health and wellbeing of children and their families in allowing them to resume and maintain normal activities that contribute to their educational, physical, psychological and social development; and
(d)May reduce transmission of disease through children which may lead to lower disease incidence in the general population and household contacts.
I observe that ATAGI’s prediction of benefits is cast in terms of “may” and “anticipated” rather than language such as “will”, “expected” or “predicted”. This lends credibility to its advice as it does not attempt to amplify its opinion beyond the available data.
I find that X may:
(a)Directly benefit from less disruption to his normal activities and education, and thus maintain better mental health as a consequence; and
(b)Indirectly benefit from a reduced risk of one or more his parents, step parents or other household members becoming ill with the associated demands on the household as a consequence, including financial pressures from parental absenteeism from work. He may also indirectly benefit from members of his local community being able to engage in normal activities.
Conclusion as to Risk vs Benefit of the Vaccine
Although the risks to X from receiving the vaccine, and the risks to X of not receiving the vaccine, favour neither party’s case, a point of contrast can be identified by reference to the anticipated social and/or indirect benefit to X in being vaccinated. That anticipated benefit, is currently available to X. It is in his best interests that he be able to avail himself of it.
Should Any Decision to Vaccinate X be Made Subject to his Views?
The mother’s amended position is that X should be vaccinated against COVID-19 when he attains the age of 14 years, subject to his views. This is also the position of the Independent Children’s Lawyer. Given the father seeks to vaccinate X immediately, it follows that no party can be heard to say that there is a risk to X in being vaccinated against COVID-19 when he attains the age of 14 years.
The Independent Children’s Lawyer’s rationale for selecting the age of 14 years was that, at that age, X will be able to consent to “simple” therapies in accordance with his views.
The Independent Children’s Lawyer was concerned to ensure that X would not be placed in a position whereby he feels the need to lie to, or become aligned with, one parent about the matter. The Independent Children’s Lawyer made reference to paragraphs 10, 16, 17, 18, 28 of the Specific Issues Report in this regard.
In addition to the mother’s rationale for the age of 14 years having regard to her contention about increased evaluative data, she says, by that age:
(a)X can maintain privacy over his health records. The mother adopted the rationale of the Independent Children’s Lawyer in this regard, namely that X will be able to consent to simple treatments in accordance with his own views, without his parents being able to access his health records as to avoid the effects of their disagreement and conflict; and
(b)X will have gained a level of maturity that will equip him to make a decision for himself.
I find that the COVID-19 vaccination is not a “simple” therapy to which a child can give consent. So much is plain from the foregoing evaluation of risks and benefit.
There is no evidence before me that enables me to find that X will, at the age of 14 years, have the maturity to make a decision about whether to be vaccinated against COVID-19.
There is no evidence before me that would enable me to find that, at the age of 14 years, X would have a view on the issue. He has no expressed view now. I cannot presume this will change.
The evidence of the Court Child Expert establishes that X was worried that each parent would be angry with him if he wants to do as the other prefers. Thus, attendance at a dispute resolution process to ascertain his views:
(a)May be futile given the purpose of the Specific Issues Report was to ascertain his views in an expert setting but no view was forthcoming; and
(b)May be detrimental to X if it renews parental dispute on the issue.
For the reasons set out at paragraphs 100 to 107 above, I find that it is not in X’s best interests for a decision about his vaccination to be subject to his views. This is a decision to be made for him by the Court in the first instance, or otherwise by agreement between the parties.
Additional Considerations
There is no medical barrier to X receiving the vaccine.
There are no developmental or psychological characteristics of X that are relevant to the issue of whether he receives the vaccine.
CONCLUSION
For all the reasons given, I find there is a benefit to X in being vaccinated against COVID-19 which exceeds the balance of risk. As such, it is in X’s best interests that he be vaccinated against the COVID-19 virus as soon as reasonably practicable.
The father sought an Order for sole parental responsibility to make decisions about the vaccination in his primary relief, it being his intention to cause that to occur immediately. Given I can make Orders which are specific to the issue of vaccination, and noting there is a general application before the Court for sole parental responsibility about X’s health, I will make only the Orders that are required to quell the controversy before me.
COSTS
The mother seeks an Order that the father pay $525, being half the fee for Dr B’s attendance at Court on 10 August 2022.
The Independent Children’s Lawyer seeks an Order that the father pay $1,650 by way of his initial contribution.
The father opposes both Applications.
Legal Framework
The issue of costs is to be determined in accordance with s 117 of the Act, which relevantly provides:
(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(e) such other matters as the court considers relevant.
(3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
I note that:
(a)All relevant matters in s 117(2A) of the Act “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”: I & I (No. 2) (1995) FLC 92–625 at 82,277;
(b)No one factor under s 117(2A) of the Act prevails over any other factor. Rather, it is a matter of weight that is accorded to each of the relevant factors in the Trial Judge’s discretion: Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664 at [24].
(c)There is nothing to prevent any factor in s 117(2A) being the sole foundation for an Order for costs: PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 at [41]; and
(d)Neither special circumstances nor an exceptional case is required before an Order for costs can be made: Penfoldv Penfold (1980) 144 CLR 311.
Mother’s Cost Application
The Senior Judicial Registrar made Orders on 22 April 2022 in terms:
(2) Pursuant to Div 7.1.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the Rules), each party has leave to adduce evidence from one expert other than a Single Expert with respect to the issue of the vaccination of [X] born […] 2012 (“adversarial expert”) and no later than 4:00pm AEDT on 29 April 2022, Applicant and Respondent file and serve on the other an Affidavit annexing or detailing evidence from one adversarial expert upon whom they intend to rely at the Hearing.
(3) Leave is granted to each party to cross-examine the other party’s adversarial expert at the Hearing for a maximum period of one (1) hour.
(4) If either party elects to take up the opportunity to cross-examine the other party’s adversarial expert at the Hearing, then they must:
(a) provide both the other party and the other party’s Adversarial Expert with written notice of their intention to do so at least 14 days prior to the Hearing; and
(b) pay any costs associated with the Adversarial Expert’s attendance at Court (in person or electronically) for the purposes of cross-examination.
The father did not require Dr B for cross examination and did not ask that he attend the Court.
Dr B attended the Court because the Independent Children’s Lawyer asked that he be available for cross examination. That is not a reason to visit half the cost of Dr B’s attendance upon the father.
There is no justifying circumstance for me to depart from the presumption that each party bear their own costs.
I dismiss the mother’s application.
Independent Children’s Lawyer’s Costs Application
The father seeks to be excused from paying his contribution because he was made redundant from his employment on 31 July 2022.
I have no evidence as to his financial circumstances including the quantum of any a lump sum he received upon being made redundant and or payment of accrued entitlements.
As such, I am unable to find that the father would suffer financial hardship if I Order him to pay his share of the initial contribution.
The father is not in receipt of Legal Aid.
I am of the opinion that there is a circumstance justifying the making of a costs Order, being that the assistance of the Independent Children’s Lawyer is a valuable service to the Court that bears on the public purse, being a scarce resource.
The question becomes what amount of costs should be ordered?
The sum sought by the Independent Children’s Lawyer against the father would result in him sharing the cost equally. That is the usual position and I have not been given any cogent reason to depart from it.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 17 August 2022
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