Palange & Kalhoun - [2022] FedCFamC2F 149

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Palange & Kalhoun [2022] FedCFamC2F 149

File number(s): SYC 239 of 2022

Judgment of: JUDGE B SMITH

Date of judgment: 16 February 2022

Catchwords: FAMILY LAW – Parenting – Covid-19 vaccination – Evidence Act – hearsay evidence rule – opinion evidence rule – expert opinion exception – matters of common knowledge – Division 12A exclusions of Evidence Act – admissibility versus weight – weight to be given to evidence admitted only because Evidence Act does not apply – admissibility of evidence in any other proceedings – individual factors relating to child – no particular risk or benefit due to individual factors – expert evidence of relative risks of COVID-19 infection versus COVID-19 vaccination in children generally – expert evidence not challenged on current information – one parent wants vaccination for current benefits – other parent concerned about unknown possible adverse side effects arising at unknown possible future time – balancing known present benefit of COVID-19 vaccination against known present risk against unknown possible future risks of COVID-19 vaccination: Order child to be vaccinated against COVID-19.

Legislation: Evidence Act 1995, Part 3.2, Part 3.3, ss.48, 55, 56, 59, 76, 79, 135, 136, 144
Family Law Act 1975 (Cth), Division 12A, Part VII, ss.60CA, 60CC, 65, 65AA, 67ZC, 69ZM, 69ZT, 69ZX(3)

Cases cited:
SPAR Licencing Pty Ltd v MIS QLD Pty Ltd (No.2) [2012] FCA 1116
Banks & Banks [2015] FamCAFC 36
Covington v Covington (2021) FamCAFC 52, (2021) FLC 94-014, (2021) 63 Fam LR 173
Dasreef Pty Ltd v Hawchar [2011] HCA 21

Donnell & Dovey [2010] FamCAFC 15
Mains v Redden (2011) 46 Fam LR 400; [2011] FamCAFC 184

Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305

McGregor & McGregor [2012] FamCAFC 69
Re Kelvin (2017) 351 ALR 329; (2017) FLC 93-809; [2017] FamCAFC 258

SPAR Licencing Pty Ltd v MIS QLD Pty Ltd (No.2) [2012] FCA 1116
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157

Division: Division 2 Family Law

Number of paragraphs: 158

Date of hearing: 8 February 2022

Place: Sydney

Solicitor for the Applicant: The Applicant was Self-Represented

Solicitor for the Respondent: The Respondent was Self-Represented
ORDERS

SYC 239 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PALANGE

Applicant

AND:
MR KALHOUN

Respondent

ORDER MADE BY:

JUDGE B SMITH

DATE OF ORDER:

16 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The child X born in 2011 (“X”) is to be vaccinated against COVID-19 with the Pfizer paediatric vaccine in line with the current ATAGI (Australian Technical Advisory Group on Immunisation) recommendations in place from time to time.
2.If a party seeks costs they may to file an Application in a Proceeding in accordance with the Rules.

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…

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.

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Details

AGLC: Palange & Kalhoun [2022] FedCFamC2F 149
Case: [2022] FedCFamC2F 149
Decision Date

CaseChat Overview and Summary

Palange & Kalhoun is a case concerning the vaccination of a child against COVID-19. The case was heard by Judge B Smith in the Federal Circuit and Family Court of Australia (Division 2). The sole issue for determination was whether it is in the child's best interests to be vaccinated against COVID-19 now or to wait until there is more information available about any possible long term side effects of the Pfizer COVID-19 vaccine on children. The mother wanted the child to be vaccinated now, while the father did not want the child to be vaccinated until the possible long term effects of the Pfizer COVID-19 vaccine are known. The court considered the evidence presented by both parties, including expert opinion evidence, and weighed the known present benefits of COVID-19 vaccination against the unknown possible future risks of COVID-19 vaccination. The court ultimately ordered that the child be vaccinated against COVID-19 with the Pfizer paediatric vaccine in line with the current ATAGI recommendations.

Orders