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 21Donnell & Dovey [2010] FamCAFC 15
Mains v Redden (2011) 46 Fam LR 400; [2011] FamCAFC 184Makita (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 258SPAR 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 157Division: 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 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 Palange & Kalhoun has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE B SMITH:
THE ISSUE
This case is about X (“the child”) who has just turned 10 years of age.
The sole issue for determination is 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.
His mother Ms Palange (“the mother”) wants him to be vaccinated now. While his father Mr Kalhoun (“the father”) supports vaccination in principle, and child has completed all of his routine childhood vaccinations, the father does not want the child to be vaccinated until the possible long term effects of the Pfizer COVID-19 vaccine are known.
The parties had prior proceedings (SYC3928/2016). By consent they entered into final parenting orders on 3 June 2019 for equal shared parental responsibility, with the child to live with the mother and to spend substantial and significant time with the father.
The child currently lives with the mother and her partner Mr B, who is a health professional, and his two half siblings C who is three and D who is just four months old. The child spends substantial time with the father. There are no issues of family violence or risk raised by either party.
The parties were both self-represented. That is no easy task given the complexity of the law relating to parenting and to evidence. They both impressed me as decent people who, having carefully considered the issue, have genuinely come to different conclusions about what is in the child’s best interests.
In these circumstances, where they have equal shared parental responsibility and have not been able to come to an agreed position, the parties have to come before this Court to ask that a Judge determine the issue of whether or not the child should be vaccinated against COVID-19 now, and to make parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The mother sought interim and final orders that:
[The child] be vaccinated against COVID-19, in line with current ATAGI (Australian Technical Advisory Group on Immunisation) recommendations. These guidelines recommend vaccination of 5-11 year old children with Pfizer paediatric vaccine, with two doses from three to eight weeks apart.
The father sought orders in his Response:
That [the child] not be vaccinated against COVID until more studies of adverse affects have been completed.
In his Outline of Case Document he sought an order:
That [the child] not be vaccinated until both parents are in Agreement.
There is no issue as to the Court’s jurisdiction or power to make an order for vaccination. In Covington v Covington (2021) FamCAFC 52, (2021) FLC 94-014, (2021) 63 Fam LR 173 the Full Court recently restated the position that:
[42] The Family Court of Australia has the jurisdiction to make an order providing for a child to be vaccinated (Mains v Redden (2011) 46 Fam LR 400; [2011] FamCAFC 184, and if necessary see Re Kelvin (2017) 351 ALR 329; (2017) FLC 93-809; [2017] FamCAFC 258).
[43] That jurisdiction is not dependent on whether or not the parties consent. Section 65 of the Family Law Act 1975 (Cth) (the Act) provides that in proceedings for a parenting order a court may make such parenting order as it thinks proper (alternatively or additionally see s 67ZC of that Act), and that order can be validly made even if there is no consent.
This Court has the same jurisdiction to make orders for vaccination pursuant to the Act.
THE PROCEEDINGS
Procedural History
As the parties were unable to agree on whether the child should have the COVID-19 vaccination, and as school was to recommence, on 18 January 2022 the mother filed an Initiating Application and affidavit seeking that the child be vaccinated. She also filed the required Notice of Child Abuse, Family Violence or Risk and her Parenting Questionnaire. She said there were no family violence or risk issues.
That same day the Judicial Registrar in the Court’s COVID-19 list, designed to deal expeditiously with matters arising from the pandemic, made orders for service and for a further case management hearing on 24 January 2022. The mother then served the documents on the father later that day.
On 21 January 2022 the father filed his Response together with an affidavit. He later also filed his required Notice of Child Abuse, Family Violence or Risk and his Parenting Questionnaire, also stating there were no family violence or risk issues.
On 24 January 2022 the Judicial Registrar made orders for the further preparation of the case, including for the service of expert evidence by each party on the issue of vaccination, and listed the matter for hearing on 8 February 2022. Each party was advised they had the right to cross-examine the opposing adversarial expert.
On 28 January 2022 the mother filed an affidavit in reply and on 1 February 2022 the father filed his affidavit in reply. On 1 February 2022 the mother filed an expert opinion affidavit of Dr E (“Dr E”). The father did not file an expert opinion.
Trial
The matter came on for hearing before me on Tuesday 8 February 2022. As the determination of the interim issue would determine the final issue the parties were offered the opportunity for cross-examination.
The mother read her affidavit filed 18 January 2022 [M1] and her affidavit in reply filed 28 February 2022 [M2] without objection. Her affidavit in reply annexed two articles concerning COVID-19 vaccination for children. She also read the affidavit of Dr E filed 1 February 2022 [Dr E].
The father objected to the use by Dr E of the expression “long-term health impacts” when describing the COVID-19 vaccination. This was on the basis that the father did not accept that there has been “long-term” use of COVID-19 vaccinations from which any “long-term” health impacts could be determined. That was his sole objection.
As Dr E’s use of the expression “long-term health impacts” can only be read as dealing with the period of time during which COVID-19 vaccinations have been administered to children, her entire opinion was admitted.
The father did not require either the mother or Dr E for cross examination.
The father read his affidavit filed 21 January 2022 [F1] and affidavit in reply filed 1 February 2022 [F2] without objection. The mother did not require the father for cross-examination. The father also relied on an Outline of Case Document filed 4 February 2022 which was treated as an Aid-memoire in support of his oral submissions. The father did not lead any expert evidence.
He said in his affidavit in reply [F2]:
3 I have not been able to find an adversarial expert as no one can know the long term effects of the Covid Vaccine as yet, and seek further court directions in this regard.
Both parties advised that they were ready to proceed. The father did not seek an adjournment to seek to obtain expert evidence. The matter then proceeded to submissions on the basis of the evidence admitted.
The parties each gave evidence specific to the child and their family circumstances as well as evidence about COVID-19 vaccination of children generally. I will deal with these separately as they raise slightly different issues.
Neither party suggested that they had any relevant medical, public health, psychological or other expertise which would qualify them to give opinion evidence about any of the matters in respect of which they offered opinions. The significance of this will be addressed below.
EVIDENCE SPECIFIC TO THE CHILD
It was not contentious that the child has been eligible to be vaccinated since 10 January 2022 and that he returned to school in early February 2022.
The Child’s Health
Physical Health
In her first affidavit [M1] (which was not paragraph numbered throughout) the mother said:
In addition to the current health concerns arising from COVID-19 infection [the child] has a history of respiratory disease which I believe will put him at increased risk of experiencing adverse effects of the disease should he contract it. [The child] has been hospitalised three times for croup (upper, respiratory tract infection). Each hospitalisation event required at least one overnight stay in hospital and ongoing medications. [The child] remains particularity susceptible to the effects of respiratory infections. [The child] often has a prolonged cough and laryngitis following contracting of common childhood colds.
In his first affidavit [F1] the father said:
2 [The child] is a fit and healthy child, with no known underlying health conditions, I see no urgency in this matter, as he is in the age range of those least affected by COVID.
The mother said in her affidavit in reply [M2]:
12. As stated by [the father] (Paragraph 2) [the child] is a fit and healthy child with no underlying medical problems. [The child] does not have any reason that would qualify him for medical exemption from vaccination, and no reason to delay his vaccination.
In summary both parties agree that the child is a generally fit and healthy child with no underlying health conditions.
However, the mother set out the child’s history of respiratory disease, and gave her opinion that this medical history will put the child at increased risk of experiencing adverse health effects should he contract COVID-19.
There is no opinion evidence from the child’s treating general practitioner, or another medical practitioner, to support the inference the mother seeks to be drawn that the child is at greater risk than the “average” child from infection by COVID-19.
Psychological Well-being including Social Impacts
The mother also raised the issues of the child’s psychological health and possible impacts on his social experience of school of remaining unvaccinated, particularly as his peers become vaccinated. She said in her affidavit in reply [M2]:
10. There are likely significant detrimental social effects for [the child] to be labelled an ‘unvaccinated’ child. [The child]’s two best school friends and all his outer circle friends I am aware of have already received their first vaccination. It is a common topic of conversation between [the child] and his friends, and it is regularly raised from [the child] to me. This is likely to increase once school starts.
She also said [M2]:
17. It is in [the child]’s best interests to be part of the societal solution to the Coronavirus pandemic. [The child]’s mental health was significantly affected by the extended lockdown in 2021. [The child] developed significant anxiety surrounding the Coronavirus outbreak including regression of night-time bedwetting (something that had been resolved for almost two years prior), repeated verbal worries (‘worried feeling’) and difficulty getting to sleep. [The child] was seen by F Psychology for this, with support of both [the father] and I. This counselling was performed under a Mental Health Plan from [the child]’s General Practitioner.
In his affidavit in reply [F2] the father said:
7 ATAGI does not support restricting the activities of children in this age group who are not vaccinated. Which I believe will not lead to [the child] being socially excluded because of his vaccine status.
The mother raised the child’s anxiety in the context of COVID-19 and appears to seek an inference that the child’s psychological health will be improved by receiving the COVID-19 vaccine.
However, her evidence goes only to symptoms as a consequence of extended lockdowns. She does not give any evidence of anxiety as a consequence of a fear of catching COVID-19 or from not being vaccinated against it. Further, it is not clear if the child still suffers from anxiety or whether the treatment plan has resolved this. In oral submissions, although unfortunately not in his evidence, the father said that the child’s anxiety was the result of a number of factors, including seeing news footage of people falling from aeroplanes during the recent evacuation from Country G. There is no evidence that supports a finding that the child’s psychological state would be improved by vaccination against COVID-19.
There is no opinion evidence from the child’s treating general practitioner or psychologist to support the inference the mother seeks to be drawn that the child’s anxiety will be reduced if he is vaccinated.
Similarly, whilst the child’s peers may be discussing vaccination the mother does not say that the child is currently suffering any issues of social exclusion.
Increased Risk of Infection for the Child or his Siblings
In her first affidavit [M1] the mother said:
I have two other children, C (age 3 years) and D (age 4 months) that share our home with [the child] and my partner, Mr B […]. I want to ensure protection for them from potential transmission of COVID-19 from [the child] to them, and vise versa. This can be achieved through vaccination of [the child] (they are both too young for the current vaccine rollout).
Furthermore, my partner, Mr B […], is a health care professional, currently working NSW Ambulance. A proportion of his current job involves the transport of COVID-19 patients (predominantly ventilated patient transport). Our family is therefore considered priority for vaccine administration through NSW Health. I want to ensure [the child]'s health is best cared for by reducing his risk of contracting COVID-19, or developing severe disease if he does, through vaccination.
The mother seeks an inference that the child is at an increased risk of infection due to the mother’s partner’s job and that his lack of vaccination impacts on the relative risk of the other children he lives with.
There is no opinion evidence from the child’s treating general practitioner, or another medical practitioner or qualified expert, on these issues.
Capacity to Engage with at Risk Adults
In her affidavit in reply [M2] the mother said:
11. [The child] has regular contact with people who are deemed medically vulnerable to Coronavirus including my 88-year-old grandmother, my 89-year-old grandmother, my pregnant cousin and several family friends that are currently pregnant.
There is no opinion evidence from the child’s treating general practitioner, or another medical practitioner or qualified expert, on whether the child’s vaccination status increases the risks to his grandparents, however, if they are reluctant to spend time with him because of their beliefs, or if the mother is reluctant for him to spend time with them because of her beliefs, that may be a relevant factor impacting on the child’s capacity to have a meaningful relationship with his grandparents.
PARTIES’ OPINION EVIDENCE ABOUT COVID-19 VACCINES
In her first affidavit [M1] the mother made a number of general statements of opinion about COVID-19 infection and vaccination. She said:
Effectiveness of the vaccine (antibody production) peaks at one to two weeks post administration. I would like to ensure [the child] has peak vaccination protection prior to returning to school. This is in [the child]'s best interest to reduce his chance of contracting COVID-19, transmitting COVID-19 and furthermore developing severe disease if he does contract COVID-19 upon return to school, a high-risk setting.
I would like to further note that [the child] is in the age group (5-11 years) and gender (male) at highest risk for Paediatric Inflammatory Multisystem Syndrome Temporally associated with SARS-COV-2 (PIMSTS) (Davies et al. 2020). This disease is commonly referred to as 'Kawazaki disease' and is one of the most serious side effects of COVID-19 infection in paediatrics, aside from death, as reported in Europe and United States. These countries have previously experienced the high COVID-19 case numbers that Australia is only just beginning to see in recent weeks.
I also note the Respondent is concerned about the potential of myocarditis following COVID-19 vaccination. This has been reported as a serious side effect of vaccination in age group 12-17 years and has increased prevalence in males. The disease is most often mild and self-resolving in these cases (Das et al, 2021). It is worth noting that myocarditis is a reported adverse effect of COVID-19 infection itself at 3-30 times more than due to vaccination.
Please note I am willing and able to provide further references used to support the current government recommendation for COVI D-19 vaccination if required.
References:
Davies P, ·Evans C, Kanthimathinathan HK, Lillie J, Brierley J, Waters G, Johnson M, Griffiths B, du Pre P, Mohammad Z, Deep A, Playfor S, Singh D, lnwald D, Jardine D, Ross 0, Shetty N, Worrall M, Sinha M, Koul A, Whittaker E, Vyas H, Scholefield BR, Ramnarayan P (2020) Intensive care admissions of children with paediatric inflammatory multisystem syndrome temporally associated with SARS-CoV-2 (PIMS-TS) in the UK: a multicentre observational study. The Lancet Child & Adolescent Health, 4(9): 669-677.
Das BB, Moskowitz WB, Taylor MB, Palmer A (2021) Myocarditis and Pericarditis Following mRNA COVID-19 Vaccination: What Do We Know So Far? Children, 8(7):607.
The mother did not provide copies of the references cited in her first affidavit [M1].
In his first affidavit [F1] the father said:
1… I do not consent to [the child] having this vaccination until long term studies are available.
…
3 I am not anti vaccination, but I would like to wait for [the child] to get vaccinated until the vaccine is no longer under an emergency use and has had ample time to be tested and see long term effects.
4 Hypothetically, if [the child] had major underlying health concerns or was otherwise immunocompromised then I would reconsider my stance, but as it stands I believe the risk of adverse reactions to the vaccine outweigh the largely asymptomatic illness that children in the age range have.
5 I am willing and able to provide evidence that supports my decision from sources such as CDC, WHO, FDA, TGAm ATAGI – However I need more time to gather it as this has been rushed.
In her affidavit in reply [M2] the mother said:
8. [The father] states he would like to wait until long term studies are available for [the child] to have his vaccination (Paragraph 1). This is not in line with ATAGI guidelines which recommend the vaccine for [the child]’s age group (5-11-year-olds). Furthermore, The World Health Organisation (WHO) medical expert group SAGE (Strategic Advisory Group of Experts) also recommend vaccination in this age group, deeming it to be safe (Annexure A).
9. [The father] states in his affidavit that he sees no urgency for [the child] to have the COVID-19 vaccination (Paragraph 2). I believe this to be incorrect. The Coronavirus pandemic has been going in Australia for two years. I believe it to be in [the child]’s best interest, both physical and mental, for [the child] to be part of the solution. Unvaccinated members of society are more likely to require hospitalisation and more likely to spread the virus.
…
15. [The father]’s states that he believes ‘the risk of adverse reactions to the vaccine outweigh the largely asymptomatic illness that children in the age range have’ (Paragraph 4). I believe this is untrue and not medically supported. As per the ATAGI guidelines, if adverse effects are the primary concern, then those of the virus should be of the highest concern.
16. The Centre for Disease Control and Prevention (CDC) in the United States released further data from the vaccination of 5 to 11-year-olds in mid-January. This data was not available when the ATAGI recommendations were made. The safety data is taken from over 8 million doses of vaccination administered to this age group in the United States. The very large numbers now available from this report further strongly support vaccination (Annexure C).
…
18. As per ATAGI guidelines, in addition to the direct benefits of vaccination in reducing vaccine associated disease there will be indirect benefits to [the child] (reduced school disruptions, reduced absenteeism, reduced disruptions to extra-curricular and social events) and indirect benefits to close contacts and the community that should be considered.
The mother annexed to her affidavit in reply Annexures A and C being reference material concerning COVID-19 vaccination in children. (Annexure B was the child’s vaccination history)
Annexure A is a three page document. It says it is produced by the World Health Organisation. It is dated 21 January 2022 and is titled “COVID-19 advice for the public: Getting vaccinated.” It says, amongst other things, that “There are several safe and effective vaccines that prevent people from getting seriously ill or dying from COVID-19” and that “WHO's Strategic Advisory Group of Experts (SAGE) has concluded that the Pfizer vaccine is safe to be used for those aged 5 and above.” No challenge was taken to the veracity of the document or its contents (s 48 Evidence Act 1995).
Annexure B is a nine page document which says that it is produced by the Centers for Disease Control and Prevention. It is dated December 31, 2021. That document discusses, amongst other things, the vaccination of children aged 5-11 with the Pfizer COVID-19 vaccine and the extent of reported adverse events. No challenge was taken to the veracity of the document.
For reasons discussed below I will not set out the contents of the documents in any more detail.
In his affidavit in reply [F2] the father summarised his position as follows:
2 My concern is about the long term effects of the Covid Vaccine.
…
4 I have no concerns with [the child] receiving the covid vaccine after a) It has been granted for full use and no longer on provisional or emergency use, and b) There is more data on any long term effects of the vaccine.5 Health advice continues to change rapidly surrounding both covid and the vaccines. Once the vaccine has been injected, there is no undoing it.
6 Britain and Sweden have not authorised the use of the vaccine in children under the age of 12 unless they are in the high risk category or live with someone in the high risk category.
The weight which can be given to the medical or public health opinions of witnesses, such as the parties, who have no qualifications or expertise in those areas, and to pamphlets or articles tendered on these topics, is discussed further below.
DR FRALWEY’S OPINION EVIDENCE ABOUT COVID-19 VACCINES
Dr E provided a concise affidavit setting out her qualifications, opinion and advising the reference material upon which her opinions were based. It seems appropriate to set out the substance of her affidavit in its entirety.
1.My name is Dr E
2.My qualifications are PhD (Public Health), BHSc, MClinSc, GradCert AppliSc.
3.I am a public health researcher in the area of vaccination. Part of my current work is to review and summarise the evidence and safety data for the COVI D-19 vaccine for adults and children. This includes comparing the risks associated with COVID- 19 infection in children with the risks (adverse reactions) associated with the COVID-19 vaccine.
4.While COVID-19 illness is frequently mild in children, the risks associated with infection far outweigh the risks associated with vaccination. Children are given one-third of an adult dose and side-effects, including myocarditis, are much lower in this age group than for older children and teens. These are listed in Table 1.
5.Table 1. Comparison of risks associated with COVID-19 infection verses vaccination.1
COVID-19 infection Symptoms 5-11 years COVID-19 vaccination 0.03% (or 3 in 10,000) Multisystem inflammatory syndrome 0% 0.13% (or 13 in 10,000) Inflammation of the heart muscle (myocarditis) 0.0001% (1 in 1 million) 1.5% (or 15 in 1,000) Hospitalisation or hospital at home Very rare, no exact figures. Some cases of myocarditis are hospitalised but these are around 1 in 1 million. 0.03% (or 3 in 10,000) Intensive care 0% 0.8% (or 8 in 1,000) Long term health impacts 0% 0.01% (or 1 in 10,000) Death 0% 6.References:
1.Hause AM, et al. COVID-19 Vaccine Safety in Children Aged 5-11 Years-United States, November 3 - December 19, 2021. Morbidity and Mortality Weekly Report. 2021 Dec 31;70 (5152): 1755.
2.Garazzino S, et al. Multicentre Italian study of SARS-CoV-2 infection in children and adolescents, preliminary data as at 10 April 2020. Eurosurveillance, 25, 2000600 (2020).
3.Mansourian M, et al. COVID-19 infection in children: A systematic review and meta-analysis of clinical features and laboratory findings. Arch Pediatr. 2021 Apr;28(3):242-248.
4.Viner RM, et al. Systematic review of reviews of symptoms and signs of COVID-19 in children and adolescents. Arch Dis Child. 320972.
5.Wang L, et al. Comparison of outcomes from COVID infection in pediatric and adult patients before and after the emergence of Omicron. medRxiv [Preprint]. 2022 Jan 2:2021. 12.30.21268495.
6.Hoang A et al. COVID-19 in 7780 pediatric patients: A systematic review. EClinicalMedicine 2020; 24:100433.
7.Ibrahim et al. The characteristics of SARS-CoV-2-positive children who presented to Australian hospitals during 2020: a PREDICT network study. Med J Aust. 2021;215(5):217-221.
8.Williams P, et al. COVID-19 in children in NSW, Australia, during the 2021 Delta outbreak: Severity and Disease spectrum. medRxiv 2021.12.27.21268348.
9.Borch, L., Holm, M., Knudsen, M. et al. Long COVID symptoms and duration in SARS-CoV-2 positive children - a nationwide cohort study. Eur J Pediatr (2022).
EVIDENCE - PRINCIPLES
As the parties were self-represented an overview of the principles I am required to apply in relation to the admission and weighting of evidence may assist them to understand the course I have taken, and the conclusion I have reached. This is not intended as a treatise on the law of evidence, but only as an overview to assist the parties.
The admission of evidence in proceedings in this Court pursuant to the Act is governed by the Evidence Act. However, as these are “child-related proceedings” (s 69ZM), Division 12A of Part VII of the Act entitled “Principles for conducting child-related proceedings” applies. That includes subdivision D entitled “matters relating to evidence”. Subdivision D substantially modifies the application of the Evidence Act to child-related proceedings such as these.
I will discuss aspects of the Evidence Act before considering Division 12A subdivision D.
Evidence Act 1995 (Cth)
Broadly speaking the Evidence Act is designed to ensure: that evidence is adduced and admitted in a manner which is fair; and, that evidence which is relevant is admitted and that evidence that is not relevant is not admitted (ss 55 and 56 Evidence Act); and, that evidence which does not reach a specified standard of reliability is generally not to be admitted.
Only evidence which is admitted may then be considered by the Court in making a determination. Once evidence is admitted, there is still a question of what weight is to be given to each different items of evidence before the Court.
Hearsay Evidence – Part 3.2 Evidence Act
Both parties set out summaries of what they understand public health bodies have said about COVID-19 infection and vaccination of children. The mother include two pamphlets summarising the major findings asserted by two leading public health bodies. The parties disagree as to what the effect of these statements by public health bodies mean, and in particular what they mean for the child.
In summary, relying on something another person has said outside of Court to prove the truth of what they have said is called hearsay.
Hearsay evidence is excluded by section 59 Evidence Act which relevantly says:
59 The hearsay rule--exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
In simple terms hearsay is not allowed because the person repeating the previous representation, or statement, may have misheard or misunderstood precisely what was said, and further because even if the person repeating the statement does so verbatim, the person who made the original statement is not available to be asked questions and if appropriate challenged about their statements.
The hearsay rule applies to previous representations whether oral or contained in a document. The hearsay applies to previous representations about both facts and opinions (see SPAR Licencing Pty Ltd v MIS QLD Pty Ltd (No.2) [2012] FCA 1116 at [238].
It is clear that each party has given evidence of what various bodies have said, and what is contained in the pamphlets provided, to seek to prove the truth of those statements. Further, much of their evidence is their summary of what they understand, and not a direct repetition of the statements made.
The hearsay exclusion applies to the parties’ evidence of what they say various public health bodies have said, and to the contents of the two pamphlets or articles annexed to the mother’s affidavit.
Opinion Evidence – Part 3.3 Evidence Act
The starting point is that witnesses may give evidence of facts acquired through direct perceptions via their senses. They are not permitted to give evidence of their “opinions” where the purpose of giving the opinion is to prove the fact about which the opinion is expressed.
Section 76 of the Evidence Act relevantly states:
The opinion rule
(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
The line between fact and opinion can be difficult to determine in some cases, however, it is clear that the evidence each party has given about COVID-19 infection and COVID-19 vaccination is opinion evidence given for the purpose of proving the existence of a fact about the effects of COVID-19 infection or vaccinations on children, and in particular the relative risks and benefits. These are opinions which would prima facie be excluded by s 76 Evidence Act.
Similarly, the mother’s evidence about the child’s history of respiratory disease and that this means he is at increased risk of experiencing adverse effects should he contract COVID-19, her evidence that his psychological health will be improved by vaccination, her evidence that her partner’s job means the child is at an increased risk of infection, and her evidence that the child presents an increased risk of infection to the grandparents and others, is all opinion evidence which she has given to prove the truth of those facts. These are also opinions which would prima facie be excluded by s 76 Evidence Act.
Exception: Opinions Based on Specialised Knowledge
There are a number of exceptions to the opinion rule which are not presently relevant.
There is also an exception for opinions which are based on “specialised knowledge”, commonly called “expert opinion” evidence.
Section 79 Evidence Act relevantly says:
(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
In very simple terms this means that, for example, a medical practitioner can give evidence about medical issues because they have spent years studying and then practicing medicine. A medical practitioner’s opinion on a medical issues is considered sufficiently reliable and probative to be admitted into evidence because of their specialised knowledge or expertise.
The expert is not entitled to merely say “I am an expert, this is the conclusion”. They must establish, in short, that they have the relevant specialised knowledge, then identify the facts they proceed upon, and explain the how applying their knowledge to those facts leads to their conclusion in a way which illuminates the issue for the Court, so the Court can make a better informed decision.
Neither the mother nor the father suggested that they had the training, study or experience to give them specialised knowledge or make them experts in any aspect of medicine or public health so that they could give opinion evidence on issues relating to COVID-19 infection or vaccination. Neither parties’ opinion evidence on COVID-19 would be made admissible through this exception to the opinion rule and so would not be admissible pursuant to the Evidence Act.
In the same way, the mother does not hold any qualifications relevant to the other medical or psychological topics on which she gave opinion evidence. Her opinion evidence would not be admissible through this exception to the opinion rule and so would not be admissible pursuant to the Evidence Act.
Dr E, on the other hand, has a PhD on the topic on which she has given her opinion. She currently works in the field in which she has given her opinion and her role is to study the area on which she gave an opinion. There was no challenge to Dr E’s expertise. She has set out the material on which she relied on. Dr E was not cross examined on her opinion evidence.
Indeed, Dr E’s opinions as given were not challenged by the father, except to the extent Dr E referred to “long term” findings. As set out in the father’s affidavits and Case Outline, and as confirmed in his closing oral submissions, it is the unknown longer term potential risk issues of COVID-19 vaccination of children which concern him.
Although very concise, having considered her opinion I am satisfied that Dr E’s opinion evidence sufficiently satisfies the criteria for admissibility pursuant to s.79 Evidence Act noting her qualifications and the narrow issue considered. (See Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157, Branson J at [7] and Weinberg and Dowsett JJ at [87-88]) discussing the decision of Heydon JA, as His Honour then was, in Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305 at [85]. See also Dasreef Pty Ltd v Hawchar [2011] HCA 21)
Thus, unlike the parties opinion evidence, Dr E’s opinion evidence is admissible pursuant to the Evidence Act. The significance of this finding is discussed further below.
Common Knowledge – s 144 Evidence Act
The other basis on which the parties may have intended to lead the evidence that they each did about COVID-19 infections and vaccinations was through section 144 of the Evidence Act which deals with “matters of common knowledge”.
In this they may have been encouraged by the Orders dated 24 January 2022 setting the matter down. Those Orders included the Notation that:
AND THE COURT NOTES THAT:
A. Pursuant to s 144 of the Evidence Act 1995 (Cth), at the Interim Defended Hearing, the Court may take judicial notice of published advice issued by public health authorities, including
a. “ATAGI recommendations on the Pfizer COVID-19 vaccine use in children aged 5
to 11 years” dated 10th December 2021, available at
>
Neither party sought to rely upon that particular document and I have not considered it.
Section 144 Evidence Act relevantly states:
Matters of common knowledge
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(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.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
Whilst it may appear at first blush to be very broad, the true ambit of s 144 Evidence Act was dealt with at length by the Full Court of the Family Court in McGregor & McGregor [2012] FamCAFC 69, in the context of judicial reliance on academic articles.
The Full Court said, inter alia, from [67]-[71]:
67 It is important to note from the outset that the information to which the section refers is of a kind not reasonably open to question and is capable of verification from authoritative sources. Examples abound of the type of information to which this section, and before it the common law, included as “judicial knowledge” or information shared between the judge and the rest of the community.
68 The requirements of s 144(1)(a) limit the potential operation of the section and may only be able to be determined after evidence of “common knowledge” generally, or in “the locality” is received. In practice there would be few issues in respect of which reference to extrinsic materials would not be “reasonably open to question”. This we think would be particularly so in relation to social science issues in parenting proceedings.
69 In X & X (2000) FLC 93-017 the Full Court of the Family Court considered the extent to which a judge was entitled to take judicial notice of the effects of genital herpes pursuant to s 144(1). The judge proceeded on the basis that it was generally known that genital herpes was a condition that may be incurable; that it may be dormant for lengthy periods; and it may surface from time to time. The Full Court concluded that the application of the test prescribed by s 144 would not have permitted the judge to have accepted without proof the range of facts upon which his Honour relied on the basis of his own knowledge.
70 In KB & TC (2005) FamCA 458 at [87] the Court said “that the benefit to be derived for a child from sibling relationships is not a matter” of general common knowledge. The Court noted, as is frequently the case with respect to parenting issues, that there are various credible schools of thought which could not be enlivened by s 144.
71 A more recent example is in Mains & Redden [2011] FamCAFC 184 which involved consideration of whether administering a number of conventional and almost universally administered vaccinations of children against a variety of conditions was in the child’s best interest. The conflict of expert opinion evidence in relation to the benefits and risks of immunisation precluded any prospect of the Court taking “judicial notice” under s 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 s 144.
It is clear that articles such as those annexed by the mother are not admissible pursuant to s 144 Evidence Act.
Implicitly the parties have proceeded on the basis that certain information about the COVID-19 pandemic is common knowledge.
The parties have proceeded on the basis, and it is presumably “not reasonably open to question”, that there is a global pandemic as a consequence of the COVID-19 infection which has impacted on and included Australia. They have also implicitly accepted that, by reason of health orders in documents “the authority of which cannot reasonably be questioned” certain legal restrictions have been placed upon the community at different times which they have referred to as “lockdowns” which have impacted the child. It was also common ground that certain vaccines have been developed, are being provided to the community, and are provisionally approved for use in children.
Although neither party sought to provide any such material in these proceedings, it may be that data published by public health authorities concerning the extent of COVID-19 infections from time to time, and place to place, relevant to the current risk of infection might fall within the ambit of this section, although that might be contentious.
The question of what is common knowledge about the COVID-19 pandemic may require determination in another proceeding or by the Full Court.
Evidence Act - Summary
The only opinion evidence which is admissible in these proceedings if the Evidence Act is applied would be Dr E’s opinion.
The short and generally uncontested factual evidence concerning the child’s general health, schooling and living circumstances was not in issue and was also admissible pursuant to the Evidence Act.
The other evidence referred to above which was not admissible pursuant to the Evidence Act was admissible, and was admitted, by reason the operation of Division 12A.
Family Law Act
Admissibility by Reason of Part VII, Division 12A, Subdivision D
Division 12A of Part VII of the Act sets out the “Principles for conducting child-related proceedings”. Subdivision D deals with “Matter relating to evidence”. Significantly, section 69ZT relevantly says:
S 69ZT - Rules of evidence not to apply unless court decides
69ZT(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(d)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
The hearsay and opinion rules, which are exclusionary, are covered by this section and so do not apply to these proceedings.
On that basis the parties hearsay and opinion evidence about what public health bodies have said about the COVID-19 vaccination safety for children, including the articles, as well as the mother’s opinion evidence about the child’s health and risks discussed above, was admissible.
By s 69ZT(3) I had the capacity to decide to apply these excluded provisions of the Evidence Act to these proceedings in certain circumstances, but I did not consider that appropriate, and neither party took any objection, pursuant to s 135 or 136 Evidence Act or otherwise, to the other parties evidence.
However, as noted above, whilst admission into evidence is required before the Court may consider evidence, the question of what weight is to be given to evidence once admitted is a separate step. That step takes on particular significance where, as here, evidence which is admitted only by operation of s 69ZT(1) may, by subsection (2), be given “such weight (if any) as [the Court] thinks fit”.
In McGregor, at [77], the Full Court also noted that whilst s 67ZT made the hearsay representations contained in academic papers admissible that “…untested previous representations in a document may be given little weight”.
In that case the Full Court further said of opinion evidence admitted in this way that:
[85] But the application of s 69ZT(1)(c) is confusing. The opinion rule is to the effect that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 79 ameliorates the opinion rule in s76 in respect of opinions of experts who qualify in that capacity.
[86] Section 69ZT excludes the opinion rule and thus permits admission of evidence of an opinion to prove the existence of a fact. Paradoxically, s79 is excluded and has no application at all. The effect would seem to be that an opinion can be admitted to prove the existence of a fact, and there is no requirement that the opinion-giver have any specialised knowledge or expertise.
[87] The common law rule (excluding opinion evidence) does not revive as a consequence of s 69ZT(5).
[88] If, then, evidence of an opinion is sought to be tendered, a judge must carefully address the admission of such opinion evidence and the weight to be afforded it.
Weight to be Given to Opinion Evidence Admitted Only through Division 12A
The strict application of the Evidence Act is moderated by Division 12A to provide greater flexibility to the Court when considering what is in the best interests of children. However, the decision making process still requires a rational assessment of the relative weight of the different items of evidence.
Pursuant to s 69ZT(2) the court is to give “such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act not applying because of subsection (1).”
In considering the weight to be given to the parties’ evidence concerning COVID-19 infections and vaccinations, including the pamphlets, I note that this evidence would have been excluded by both the hearsay and opinion rule. The parties are not medical or public health experts. They are repeating and summarising what other bodies have said about complex medical and public health issues.
In the absence of any relevant qualifications of either party to give opinion evidence about this complex issue I do not consider it appropriate to give any weight to either of their opinions on the medical and public health issues associated with COVID-19 infection or vaccination.
Similarly, to the extent the mother gave her opinion about medical, psychological and contagion risks specific to the child, she has no expertise to give that evidence on complex medical issues. For the same reasons expressed immediately above I do not consider it appropriate to give any weight to the mother’s opinion evidence on these complex medical issues. These are, of course, issues on which the child’s treating general practitioner or psychologist, or similarly qualified experts, could have given evidence.
Noting what was said in McGregor, about reliance on articles, and that the authors of the pamphlets were not available to be cross examined, I also give no weight to the pamphlets tendered by the mother.
On the other hand, I give substantial weight to the unchallenged and uncontested evidence of Dr E who is a highly qualified expert. Those opinion were admissible pursuant to s.79 Evidence Act and who provided a summary of the relative risks of COVID-19 vaccination as against COVID-19 for children 5-11.
Further, as noted, the father did not take issue with her evidence to the extent to which she gave it. His concern was with the fact that her opinion does not address the possibility of presently unknown risks arising in the future.
Evidence From Other Proceedings – s 69ZX(3)
Given that the issue of contested COVID-19 vaccination of children is necessarily a relatively new issue for determination by the Courts, and appears likely to be an ongoing issue for a period of time, I consider it worth noting that there is provision for a Court to receive into evidence material from other proceedings which may eventually become relevant to the determination of such applications.
This relatively little used provision is set out at s 69ZX(3) of the Act:
(3) The court may, in child-related proceedings:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
It may be that the effect of the provision is most often implicitly relied upon in the citation of Full Court authority on matters of social science.
The sub-section is discussed by the Full Court in Donnell & Dovey [2010] FamCAFC 15. The discussion overlaps to some extent the discussion in McGregor. In the context of discussing anthropological evidence the Full Court said, among other things, that:
[210] Had the Federal Magistrate informed himself of evidence/research that he considered was a matter of “common knowledge”, he would then have been obliged, by operation of s 144(4), to give the parties an opportunity to make submissions and to refer to other relevant information – unless failure to do so would not cause unfair prejudice to either party.
[211] It seems to us that the additional evidence/research to which the Federal Magistrate might have had recourse would be available in two principal forms.
[212] The first would have been what the Full Court in B and R (supra) called “readily accessible public information of which it would be expected that a trial judge would inform himself or herself”. In that case the Full Court was dealing with the refusal by a trial Judge to allow evidence to be adduced of the experiences of a number of Aboriginal children raised in non-Aboriginal environments and, in particular, the difficulties they encountered and the damage to identity and self-esteem which they suffered.
[213] The second source of additional evidence/research to which the Federal Magistrate could have had recourse were the decisions, both at first instance and of the Full Court, in which expert/informed evidence has been led and accepted in matters involving indigenous children. The more important of these decision have been conveniently collected by Heather McRae et al in Indigenous Legal Materials: Commentary and Materials (4th ed, 2009).[214] This potentially rich source of information is available to the Court by resort to s 69ZX(3), which provides as follows:
The court may, in child‑related proceedings:
(a)receive into evidence the transcript of evidence in any other proceedings before:
(i)the court; or
(ii)another court; or
(iii)a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
[215] The subsection is followed by a “Note” which reads, “This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children”.
[216] The reasoning behind the Note and the purpose of s 69ZX(3) can be seen from the relevant portion of the Explanatory Memorandum which accompanied the 2006 legislation which inserted the provision in the Act. This is set out below (our emphasis added):
Subsection 69ZX(3) inserts a modified version of section 86 of the Native Title Act 1993. It provides that the court may, in child-related proceedings, receive into evidence the transcript of evidence in any other proceedings before a court or tribunal and draw any conclusions of fact from the transcript that it thinks proper. The court may also adopt any recommendation, finding, decision or judgment of any court or tribunal.
30.This amendment implements recommendation 5 of the Family Law Council’s December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. The Report found that such a provision could provide a court with the flexibility to draw on relevant evidence adduced in other proceedings in other courts to inform decision-making in the best interests of the child pursuant to subsection 68F(2). It suggested that, in the case of an Aboriginal or Torres Strait Island child, such an approach would assist a court in informing itself of the content of the relevant kinship obligations and child-rearing practices wherever such reliable information exists. In this regard, the provision is relevant to new section 61F … which requires the court to have regard to the kinship obligations and child-rearing practices that are relevant to an Aboriginal or Torres Strait Islander child. (Original emphasis).
31.This provision does not apply only to proceedings concerning an Aboriginal or Torres Strait Islander child. It applies to all child-related proceedings. In this respect, the provision implements recommendation 48 of the LACA Report. The Committee was of the view that extending the provision to all children would be helpful and may assist in addressing issues surrounding claims of family violence and abuse. The note to subsection 69ZX(3) clarifies that the subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.
[217] We accept the submission of counsel for O’s sister that by virtue of s 69ZX(3) the Federal Magistrate could have received, for example, the anthropological evidence accepted in In re CP (supra at 83,986).
I was not able through my research to identify prior to the Trial any material which might be relevant to the opinion issues surrounding COVID-19 in these proceedings. Accordingly, I did not raise the issue with the parties and this does not form any part of my findings or decision in this proceeding. Whilst I could not find any relevant material it may be that in the longer run such material will become available to assist Trial Judges to address COVID-19 issues.
I note that it would seem to me that, as with material that might be admissible pursuant to s 144 Evidence Act, procedural fairness would require the parties to have adequate notice of a parties or the Court’s intention to rely on any such material.
Submissions
The oral submissions were concise and largely restate the parties evidence.
The mother’s case was that taking into account Dr E’s unchallenged evidence, the other material she had referred to regarding the risks and benefits of vaccination, and the child’s individual features, his best interest required vaccination against COVID-19 now.
The father emphasised that he is not against vaccination, noting that the child has had the usual childhood vaccinations, and nor did he challenge Dr E’s opinion. His point was that it would be preferable, even weighing the risks of COVID-19 infection now, to wait until there is more data about any long term effects on children of COVID-19 vaccinations. The father did not specify how long it would be before he would be satisfied there was enough historical data to be satisfied as to the long term risks.
Discussion
Features Specific to the Child
Both parties evidence was that the child is, in general terms, a fit and healthy child and there is no suggestion that the child would be exempt from vaccination on medical grounds.
The mother says that the child has a history of mild respiratory disease, which she believed would put him at an increased risk of harm as a result of his contracting COVID-19. However, the issue of whether the child is particularly susceptible to harm from catching COVID-19 by reason of his medical history is an issue on which medical opinion evidence would be required, and accordingly, as discussed above, I give no weight to this issue.
The mother says that the child has suffered anxiety as a consequence of the extended lockdown last year. The father said in oral submissions that there were a variety of issues involved and that the child’s anxiety commenced when he saw television images of a person falling from a plane during the evacuation at the fall of Country G. The mother’s evidence does not on its face establish that the child has any current psychological symptoms that have not been treated, nor that it is the absence of COVID-19 vaccination that is causing or contributing to any such problems as opposed to lockdowns and other restrictions. There is no material from the child’s treating general practitioner or treating psychologist and no evidence that being vaccinated will assist to reduce any current anxiety he may have.
The mother suggested that the fact that the child lives with a medical practitioner who deals with COVID-19 patients was a factor suggesting that the child is potentially exposed to a higher risk of contracting the disease, and similarly that his being unvaccinated increases the risks to the young children he lives with. Given the high level of care that one anticipates the mother’s partner would take in that context, and the extent to which COVID-19 is now in the community, it is not clear to me that it is open to draw that inference from this fact alone and I give no weight to the mother’s opinion on that medical issue. Again, these are issues on which the child’s general practitioner might have given admissible opinion evidence.
There is no evidence the child is currently suffering from any social exclusion due to his not having had the COVID-19 vaccination.
There is evidence that due to the mother’s views about the risks the child poses to others she sees as vulnerable, including the maternal grandparents, may effectively reduce the child’s capacity to spend time with his grandparents and other people. I accept that this may not be in the child’s best interests and that vaccination may impact on this. I do not give significant weight to his factor in the context of all of the evidence.
I do take into account the child’s individual features, however, the issues raised by the mother are not in my view factors of any significant weight to be taken into account in determining what is in the child’s best interests. That is particularly so in the context of Dr E’s opinion evidence to which I give significant weight.
Risk Benefit Analysis of COVID-19 Vaccination for Children aged 5-11
Dr E set out the relative risks of COVID-19 infection versus COVID-19 vaccination for children aged 5-11. This cohort includes the child.
I reproduce the table again below.
COVID-19 infection Symptoms 5-11 years COVID-19 vaccination 0.03% (or 3 in 10,000) Multisystem inflammatory syndrome 0% 0.13% (or 13 in 10,000) Inflammation of the heart muscle (myocarditis) 0.0001% (1 in 1 million) 1.5% (or 15 in 1,000) Hospitalisation or hospital at home Very rare, no exact figures. Some cases of myocarditis are hospitalised but these are around 1 in 1 million. 0.03% (or 3 in 10,000) Intensive care 0% 0.8% (or 8 in 1,000) Long term health impacts 0% 0.01% (or 1 in 10,000) Death 0%
Dr E gave her opinion that “while COVID-19 illness is frequently mild in children, the risks associated with infection far outweigh the risks associated with vaccination.”
The data Dr E has summarised in the table above comfortably establishes that opinion.
I accept Dr E’s opinion as stated.
While the risks of COVID-19 infection to children in this age groups are comparatively low, cumulatively and taking into account the nature of the risks involved, in my view those risks are not trivial.
In particular there are risks of death, of long term health impacts, of the requirement for hospitalisation including in intensive care, and a risk of multisystem inflammatory syndrome, which do not exist to any significant degree in vaccinated children. The risk of myocarditis is significantly increased absent vaccination.
The Unknown Future Risks
When the father said that contrary to Dr E’s opinion he believed “the risk of adverse reactions to the vaccine outweigh the largely asymptomatic illness that children in the age range have”, he was taking into account not only currently known risks of adverse reactions to the COVID-19 vaccination, but also the possibility of unknown potential longer term risks arising from the use of a new vaccine in children.
The father did not call any expert evidence about the potential kinds of adverse long term side-effects he may have in mind, or any expert evidence about the potential for unforeseen side-effects arising in the context of the medical and scientific processes used to develop and test new vaccines, and in particular the Pfizer paediatric vaccine which is the subject of this application.
The only material I have as to this risk is the father’s concern, as a lay person, that despite the evidence relied upon be Dr E, involving the medical research process which has allowed the approval, including the provisional approval, of the Pfizer COVID-19 vaccines for children, that there may be some unknown adverse side effect at some unknown time in the future.
I understand the father’s concern that the Pfizer COVID-19 vaccination for children is comparatively new. We do not have the history of decades of use that exist for the standard childhood vaccinations. However, there is no material before me to assist in determining what weight to give to that possible future unknown. I can only take it into account in a general way as a possible risk.
Against that unknown risk must be weighed the fact that if the child is not vaccinated now, and on the father’s application for an unspecified time until both parties agree, then until he is vaccinated against COVID-19 he is at risk of the known, quantifiable and non-trivial risks from COVID-19 infection which can be significantly reduced by administration of the COVID-19 vaccination.
Parenting Orders
Each party seeks parenting orders. They have equal shared parental responsibility and orders for time and communication.
In considering the single issue before me the paramount consideration is what is in the child’s best interests (ss 60CA and 65AA). The determination of what is in the child’s best interests is undertaken by reference to s 60CC of the Act. The primary considerations relate to protecting the child from physical or psychological harm from family violence, and to the benefit to the child of a meaningful relationship with both parents. Family violence and risk are not issues here and the child has a meaningful relationship with both parents.
There are a significant range of additional considerations I am required to turn my mind to as set out in s 60CC(3) of the Act. However, neither party raised for example issues of the child’s views, nor did either party suggested that the other parent had failed to take the opportunity to participate in decision making or that they had failed to fulfil their obligation to maintain the child. The parties quite reasonably did not lead evidence about, or make submissions about, this range of additional factors. These are two loving and engaged parents who both want what is best for the child, but disagree about what that is.
In these circumstances, although I have considered all of the s 60CC(3) factors, I do not consider it necessary to go through them here as they do not impact on the single issue for decision as defined by the parties. (Banks & Banks [2015] FamCAFC 36 at [48]-[50]).
Decision
The singe issue for determination is whether or not the child should be vaccinated against COVID-19 with the Pfizer paediatric vaccine at this time.
The unchallenged expert evidence establishes that there is a clear health benefit to a child of age 10, such as the child, from being vaccinated against COVID-19, compared with the status quo position of the child remaining unvaccinated.
There being no evidence of a medical basis for exemption from vaccination.
There is nothing about the child’s individual health and personal factors which weigh for or against vaccination apart from the issue of the known general reduction of risk of adverse health affects resulting from COVID-19 vaccination.
On the available unchallenged expert evidence “the risks associated with infection far outweigh the risks associated with vaccination.”
The only reason not to vaccinate the child against COVID-19 now is because of the father’s concern that at some unknown future time some unknown side effect will emerge. There is no evidence about the likelihood of that happening, nor of the possible or likely nature of any future adverse side-effects.
There is no submission or suggestion that an order to vaccinate or not to vaccinate will adversely impact on either parent’s capacity to parent and care for the child.
There is no risk free option.
My role is to consider and weigh the relative risks as best I can, taking into account the evidence before me, and considering the individual circumstances of the child, to make a decision as to what course of action I believe is in his best interests. It is a difficult task.
Having considered all of the matters set out above, and noting that I both understand and respect the father’s concerns, balancing these competing factors I am satisfied that it is in the child’s best interests to be vaccinated against COVID-19 with the Pfizer children’s vaccine now in order to reduce the known existing risks which, though small, include potentially significant health impacts up to death, rather than to delay and expose the child to the risks of COVID-19 for an unspecified period of time waiting to see whether or not any currently unidentified adverse health side effects arise.
No submission was made by the father that, if the child is to be vaccinated against COVID-19 with the Pfizer children’s vaccine, that the vaccination process should take place other than in accordance with current recommendations for COVID-19 vaccination of a child of 10 as sought by the mother.
Orders
Accordingly, I make the Order for the child to be vaccinated against COVID-19 with the Pfizer vaccine in terms generally as sought by the mother.
The usual order pursuant to s 117 of the Act would be for each party to pay their own costs. However, if either party seeks costs they may to file an Application in a Proceeding in accordance with the Rules.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of Judge B Smith. Associate:
Dated: 16 February 2022
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