PANNO & PANNO - [2017] FCCA 3005

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANNO & PANNO

[2017] FCCA 3005

Catchwords:
FAMILY LAW – Immunisation – contravention of consent orders – best interests – no reasonable excuse for contravention – orders made to ensure compliance with the consent orders – no penalty imposed.

Legislation:

Family Law Act 1975, ss.70NAC, 70NAE, 70NBA

Cases cited:

McClintock & Levier [2009] FamCAFC 62

Applicant:

MR PANNO

Respondent:

MS PANNO

File Number:

MLC 2247 of 2014

Judgment of:

Judge McNab

Hearing date:

27 November 2017

Date of Last Submission:

29 November 2017

Delivered at:

Melbourne

Delivered on:

29 November 2017

REPRESENTATION

The Applicant in person

The Respondent in person

ORDERS

Orders 1 and 2 of the Orders of 23 August 2017 be discharged.
The father be given sole parental responsibility for immunising and vaccinating the children X born (omitted) 2009 and Y born (omitted) 2011 (“the children”) in accordance with the recommendations of Dr T of the (omitted) Hospital and a sealed copy of this Order may be produced as evidence of the father’s right to have the children immunised and vaccinated without the consent of the mother.
Subject to the children undergoing the immunisation and vaccination schedule, the mother have leave to take the children on a holiday to (country omitted) from (omitted) 2018 with the mother to provide to the father no later than (omitted) 2017 copies of the children’s return tickets and a copy of the itinerary and contact details for the children during the holiday.
Pursuant to s.68B of the Family Law Act 1975, the mother, by herself, her servant and/or agents be restrained:
(a)from attending at the (omitted) Hospital during any time when the children are in attendance for the purposes of vaccination; or
(b)otherwise seeking to prevent the father from presenting the children at the (omitted) Hospital for the purpose of vaccination pursuant to these orders.
The (omitted) Hospital be authorised to proceed with the vaccinations as recommended by it and to do so without delay.

AND THE COURT NOTES THAT:

A.The court finds that the mother has without reasonable excuse contravened Order 1 of the Orders of the court of 23 August 2017.
B.The court declines to impose a penalty on the mother.

IT IS NOTED that publication of this judgment under the pseudonym Panno & Panno is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2247 of 2014

MR PANNO

Applicant

And

MS PANNO

Respondent

REASONS FOR JUDGMENT

Delivered Ex Tempore

This contravention proceeding comes before the court in relation to two children, X born (omitted) 2009 and Y born (omitted) 2011 consequent upon consent orders which were made by Judge Hartnett on 23 August 2017.
Paragraphs 1 and two of those orders provide:
(1) The parents forthwith do all things and sign all documents required (including but not limited to obtaining a referral from the children’s treating general medical practitioner) to refer the children:-
(a) X born (omitted) 2009 and
(b) Y…

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: PANNO & PANNO [2017] FCCA 3005
Case: [2017] FCCA 3005
Decision Date: 29 November 2017

CaseChat Overview and Summary

In the matter of *Panno & Panno*, Judge McNab of the Family Court of Australia considered a dispute between the parents regarding the immunisation and vaccination of their two children. The mother had previously contravened an order of the court concerning these matters.

The court was required to determine who should have parental responsibility for the children's immunisation and vaccination schedule, and whether the mother should be permitted to take the children on a holiday to a specified country, subject to certain conditions. The court also had to consider whether to restrain the mother from interfering with the vaccination process.

Judge McNab reasoned that the father should be granted sole parental responsibility for the children's immunisation and vaccination, in accordance with the recommendations of a medical professional. The court found that the mother had contravened a previous order without reasonable excuse but declined to impose a penalty. The mother was granted leave to take the children on a holiday, provided she supplied the father with travel details and contact information. The mother was also restrained from attending the hospital during the children's vaccinations or otherwise preventing the father from presenting the children for vaccination. The hospital was authorised to proceed with the vaccinations without delay.

Orders

Orders of the court

Orders 1 and 2 of the Orders of 23 August 2017 be discharged.

The father be given sole parental responsibility for immunising and vaccinating the children X born (omitted) 2009 and Y born (omitted) 2011 (“the children”) in accordance with the recommendations of Dr T of the (omitted) Hospital and a sealed copy of this Order may be produced as evidence of the father’s right to have the children immunised and vaccinated without the consent of the mother.

Subject to the children undergoing the immunisation and vaccination schedule, the mother have leave to take the children on a holiday to (country omitted) from (omitted) 2018 with the mother to provide to the father no later than (omitted) 2017 copies of the children’s return tickets and a copy of the itinerary and contact details for the children during the holiday.

Pursuant to s.68B of the Family Law Act 1975, the mother, by herself, her servant and/or agents be restrained:

(a) from attending at the (omitted) Hospital during any time when the children are in attendance for the purposes of vaccination; or

(b) otherwise seeking to prevent the father from presenting the children at the (omitted) Hospital for the purpose of vaccination pursuant to these orders.

The (omitted) Hospital be authorised to proceed with the vaccinations as recommended by it and to do so without delay.

AND THE COURT NOTES THAT:

A. The court finds that the mother has without reasonable excuse contravened Order 1 of the Orders of the court of 23 August 2017.

B. The court declines to impose a penalty on the mother.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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