Messina & Obelink
[2022] FedCFamC1F 860
Federal Circuit and Family Court of Australia
(DIVISION 1)
Messina & Obelink [2022] FedCFamC1F 860
File number(s): DGC 944 of 2015 Judgment of: BENNETT J Date of judgment: 13 January 2022 Catchwords: FAMILY LAW- PARENTING - where high conflict parents who are distrustful of one another are unable to make arrangements for child’s first COVID vaccination – where arrangements identified and settled on during the hearing and reflected in Order.
FAMILY LAW- CASE MANAGEMENT – where father sought an adjournment to answer mother’s urgent application – where adjournment refused because it would have delayed proceedings – where father afforded an opportunity to respond orally to mother’s evidence – where father sought entitlement to file an affidavit in response notwithstanding that matter has been determined.
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 13 January 2022 Place: Melbourne (via MS Teams) Counsel for the Applicant: Litigant in person Counsel for the Respondent: Litigant in person ORDERS
DGC 944 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MESSINA
Applicant
AND: MS OBELINK
Respondent
order made by:
BENNETT J
DATE OF ORDER:
13 JANUARY 2022
THE COURT ORDERS THAT:
1.The father do all acts and things necessary to ensure that the child V born 2014 (“the child”) receive his first dose of Covid-19 vaccine by midnight on Friday 14 January 2022.
2.The father forthwith provide an indication of compliance by him with the above order by transmitting a photograph to the mother of the child having his vaccination immediately upon the photograph being taken noting that it is not necessary that the face or any identifying characteristic of the person administering the vaccination be in the photograph.
3.Each parent be and is hereby restrained from removing the child V from the State of Victoria during this current school holiday vacation period, save for the purposes of going to Tasmania:
(a)by ferry;
(b)to camp; and
(c)on prior written notice to the other party.
4.In the event that the child is not vaccinated by midnight on Friday 14 January 2022 the father do all acts and things necessary to ensure that the child attends the appointment made by the mother for 15 January 2022 at the LL Clinic, Town J in Region 1 and, when there, that the child receive his first vaccination for COVID-19.
5.Upon compliance by the father with paragraph 1 of this Order, each parent be and is hereby, responsible for cancelling the alternative appointment made by him or her.
6.The Application in a Proceeding of the mother filed 11 January 2022 be and is hereby otherwise dismissed.
7.Pursuant to Sections 65DA and 62B of the Family Law Act 1975, the particulars of the obligations pursuant to these Orders create and the particulars of the consequences that may follow, a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
8.My reasons for decision this day be published subsequently, placed on the Court file and a copy be provided to the parents.
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 Messina & Obelink has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Ex temporeBENNETT J
This matter comes before me as an urgent listing in the COVID-19 list conducted by the Court. The mother’s application was filed on Tuesday, 11 January 2022 and, as best I can ascertain, the mother seeks that the parties’ child, V (age 7) be vaccinated with his first dose of Covid-19 vaccine at a general medical practitioner at LL Clinic, Town J on Saturday, 15 January 2022. Otherwise, the mother seeks that the father be restrained by injunction from removing or causing V to be removed from the State of Victoria during the current long summer school vacation.
The parties in these proceedings have been before me a number of times. It is a very high parental conflict matter. The parties are unable to negotiate even the most basic arrangements in relation to V. In my experience, any common sense resolution of a matter is avoided by each parent being implacably opposed to adopting the position of the other parent as an appropriate way forward. The parents distrust one another by which I mean that each parent has progressed from being sceptical or doubtful of the other parent’s position to having a concluded view that the other parent is untrustworthy.
Relevantly, the mother lives in Region 1, as does the father. The father spends some time in Region 2 with his partner, Ms Q. Ms Q is currently employed as a carer for a person with disabilities. Ms Q has a farm some six or so hours drive from Region 2.
In anticipation of the father’s time of two weeks with V, the mother wrote to the father by email or text in early 2022, saying that she wanted to have V vaccinated as soon as possible and this would necessarily occur within the father’s time with V, given that vaccines were not to be available until 10 January 2022. The mother asked the father for an itinerary of his activities with V so that she could, to the greatest extent possible, accommodate the father’s movements when making an appointment. That is, she would try to make an appointment in the same location as the father would be on any given day.
The father responded later on 8 January 2022, saying that he proposed to spend most of the time of the first week (9 January 2022 to 16 January 2022) in Region 1, and for the second week, which I calculate to be from 17 January 2022 to 24 January 2022, he was not “100 per cent sure”. The father thought he may be in Region 2 or there might be other activities planned.
The mother then made an appointment with a medical clinic in Town J for the child to be immunised on Saturday, 15 January 2022. Subsequent to being notified of that appointment, the father wrote to the mother by email or text saying that that was not convenient as he, Ms Q and V were going on a camping trip some six hours or so away from Region 1 and he had made alternative arrangements to have himself receive a booster shot and V receive his first vaccination shot on Monday, 17 January 2022 en route to home from the proposed camping site to Region 2. The father says that he had originally understood that Ms Q would be available to spend time with him and V for the duration of the second week of the long summer school vacation. However, it transpired that she was now available only on Friday, Saturday and Sunday. Having the child vaccinated as proposed by the mother would significantly curtail the time that V and the father could spend camping with Ms Q.
This application was brought on urgently. I note that one shortcoming of the application form is that it is not abundantly clear that the applicant is required to set out with specificity the orders sought. There is a space on the form, in “orders sought” which has been completed by the mother ticking a box for “enforcement of parenting orders”. The application was issued on that basis. It is only by reading the mother’s affidavit in support and hearing from her today that I was clear about the specific orders sought by the mother. The father wanted an opportunity to respond to the mother’s affidavit. The affidavit is brief and to the point. I provided the father with an opportunity to respond orally to the matters set out in the affidavit. It took a considerable time to do so because the father seemed intent on reading out the affidavit before responding to it rather than just referring to the paragraph number and stating his response. I am satisfied that the hearing was conducted in such a way that the father had an opportunity to take issue with that which he did not agree with in the affidavit. Otherwise he had an opportunity to impart matters which were relevant to his opposition.
I accept that the mother is particularly anxious about V’s health. This is not only having regard to the impact on V of contracting Covid-19. The mother and V live with the mother’s parents. The maternal grandparents are both immunocompromised. Accordingly, the implications of V contracting Covid-19 are a disruption or dislocation of the residential arrangements for the mother and V during any period in which V is going to infect other people with the virus. That is a serious consequence which should, if at all possible, be avoided. Otherwise the mother wants V to be vaccinated as soon as possible.
By discussion it was possible to identify that the father could have the child vaccinated today or tomorrow. That is, even earlier than the date proposed by the mother. If that early vaccination takes place, the mother has no objection to the child going on a camping activity with the father and Ms Q.
The mother sought the injunction about the child not being removed from the State of Victoria. The father was content to agree with the exception of going to Tasmania by ferry for camping. I will make the more limited injunction against both parties.
In making this parenting order, it is not necessary for me to consider, pursuant to section 61DA, whether it is in the best interests of V for his parents to have equal shared parental responsibility. The dispute to which this order is directed in more confined. The mother has sole parental responsibility in relation to matters of health and education and I make no alteration to that situation.
The paramount consideration in making the Order today is the best interests of V. I am satisfied that it is in V’s best interests to enjoy the time he is with the father, subject to his reasonable health needs being observed and taken care of.
The father maintains that he wants an opportunity to answer the affidavit of the mother in writing. I have dismissed the application for which the affidavit was filed, therefore any affidavit prepared by the father will not be able to be filed. It is open to the father to prepare such an affidavit nonetheless and to use it in future if, by slim chance, the father’s response will be relevant to an issue to be decided.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 13 January 2022. Associate:
Dated: 7 November 2022
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