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

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

2. 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.

3. 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.

4. 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.

5. 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

1. 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.

2. 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 born (omitted) 2011 (‘the children’)

   to the (omitted) Hospital (‘the Hospital’) for the purpose of obtaining and complying with the Hospital’s recommendations for vaccination of the children, including but not limited to:-

   (a) attending and having input from both parents as to the vaccinations recommended and the scheduled recommended;

   (b) attending all appointments for vaccinations as recommended in the schedule.

   (2) Subject to the commencement of and compliance with the children’s vaccination schedule as recommended by the Hospital, 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 not later than (omitted) 2017 with copies of the children’s return tickets and copies of the itinerary and contact details for the children during the holiday.

3. The orders make it plain that the mother will be in breach if she was to go on holidays to (country omitted) without the children being vaccinated in accordance with the recommendation of the hospital.

4. On 13 November 2017 the father filed a contravention application alleging that:

   [t]he wife without reasonable cause or excuse failed to comply with paragraph 1 of the Order of Federal Circuit Court made in Melbourne on 23 August 2017 in that she refused to permit the vaccination of the children X born (omitted) 2009 and Y born (omitted) 2011 as recommended by the (omitted) Hospital at the (omitted) Hospital in Melbourne and also prevented compliance with the order.

5. The father also filed an application in a case seeking the making of orders to give effect to the orders of 23 August 2017. The father sought orders in the following terms:

   1. That paragraphs 1, 2 and 3 of the Orders of the Federal Circuit Court of Australia made in Melbourne on 8 September 2014 be varies to provide as follows:

   (a) That for a period of six (6) weeks subsequent to the date of this Order the applicant have sole parental responsibility for the children of the marriage X born (omitted) 2009 and Y born (omitted) 2011 (“the children”).

   (b) That during this period the children live with the husband.

   2. That the wife be by herself her servants or agents restrained from attending at the (omitted) Hospital during any period when the children may be in attendance for the purposes of vaccination as recommended by the (omitted) Hospital.

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

   4. That paragraph 2 of the orders of the Court made on 23 August 2017 be, until further order, suspended.

   5. That all times be abridged to enable this Application to be heard and determined on an urgent basis.

   6. That the wife pay the husband’s costs of this Application.

   7. Such further or other Orders as this Honourable Court deems appropriate.

6. Those orders were in effect making orders to effectuate the consent orders.

7. The mother filed a response seeking to have the orders set aside. She filed an affidavit in support of that application sworn 21 November 2017. At paragraph 39 of that affidavit, the mother deposes:

   In summary, I deny that I have contravened the orders of 23^rd August 2017. I have merely sought to properly assess and protect the children from the very real risk of serious harm. I am also abiding by my legal obligation to provide valid informed consent as guardian of the children. Paragraph 1 of the orders allows for “attending and having input from both parents…” and “attending all appointments for vaccination…” The Father was attempting to go ahead with medical treatment, which he knew I intend to have reviewed and/or potentially ‘set aside’. He was also intending to go ahead without my input and attendance, which would have been a direct breach of the aforementioned condition. He and his Lawyer have failed to communicate, despite our various attempts to mediate and remedy the situation.

8. At paragraph 40 of the affidavit of the mother sworn 21 November 2017, she deposes:

   For the purpose of discussions around our travel plans, I note the national vaccination coverage rate in (country omitted) to be at 92% in 2016, a rate similar to Australia…I also highlight that Dr T confirmed childhood illnesses in (country omitted) are of similar incidence and rarity to Australia. She stated that it was a low risk destination and comparable to being at home.

9. The mother does not dispute that she has not consented to the children being vaccinated in accordance with the recommendations of the (omitted) Hospital and has thereby contravened the orders. The mother raises that she has a reasonable excuse for contravening the order, that being that there was significant concerns for the health of the children because of unanswered concerns about the vaccination process.

10. At the hearing of the application, in response to the question whether the mother wished to admit or deny the allegation, the mother stated that she denied the allegation but went on to say that she had a reasonable excuse for contravening the orders.

11. Section 70NAE(2) of the Family Law Act 1975 (Cth) provides:

    A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

    (a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person was bound by it: and

    (b) the court is satisfied that the respondent ought to be excused in respect of the contravention.

12. Each of the parties appeared before me as self-represented litigants. At the hearing before her Honour Judge Hartnett at which the relevant orders were made, each of the parties was represented by experienced counsel. There is no evidence that the orders were procured by misrepresentation, duress or fraud.

13. In support of the application, the father filed an affidavit on 13 November 2017. The evidence that he filed included the recommended vaccine plan prepared by Dr T in relation to both of the children following a consultation with the parents on 17 October 2017. The notes of the consultation included reference to the fact that each of the children is unimmunised and in relation to family history notes that the father has had Guillain Barré syndrome a few years ago.

14. The notes record that the doctor had a long discussion regarding the risks and benefits of the vaccine and addressed the concerns raised by the mother.

15. The father’s evidence also exhibits a letter from Dr T dated 24 October 2017 which refers to an email from the mother which raised in the doctor’s words ‘numerous concerns regarding immunisation’.

16. The doctor commented in her letter:

    As you know, I had the opportunity to meet with yourself and your children’s father, Mr Panno, on the 17/10/17 in the Immunisation Clinic at the (omitted) Hospital.

    In this appointment you have raised similar concerns and I have discussed them with you at length during a 1 hour appointment.

    My clinical opinion following this discussion is that there is no medical contraindication to routine immunisation for your children and I have provided catch up immunisation plans for both of them in my previous correspondence to you.

    In the context of our clinical service, I am not in a position to further respond to your queries in writing and I am satisfied that I have explained all reasonable and relevant clinical questions.

17. The mother filed an affidavit sworn 21 November 2017. Much of the affidavit is inadmissible as it purports to express expert medical opinion which the mother is not qualified to give (paragraphs 12, 18, 19, 20, 21, 22 – 25). I have excluded those parts of that affidavit. The mother has annexed a large volume of what purports to be medical research which supports her position that the immunisation program is unsafe. I do not have regard to those parts of her affidavit or the annexures.

18. The mother gave sworn evidence where she outlined the reasons for not complying with the order and her own concerns with the immunisation process recommended by the (omitted) Hospital. She has stated that she is still going through the process of obtaining informed consent to the immunisation process. Having further considered the affidavit material filed by the mother, I have received the evidence that she gave of the direct involvement that she had in attending the (omitted) Hospital and the grounds for her opposition to the orders sought by the father to enable compliance with the orders of 23 August 2017.

19. The father attended the hearing of the contravention application on 27 November 2017. When the matter was first mentioned he advised the court that Dr T was available in court to give evidence. Given that I was aware that concerns had been raised by the mother in relation to the consultation process, I asked the mother whether she would object to Dr T giving evidence and she advised the court that there was no objection.

20. Dr T gave evidence of her experience and qualifications as a registered paediatrician at the (omitted) Hospital, which position she has held since 1999. Dr T gave evidence that she had worked in the (omitted) Hospital’s immunisation service since its inception in 1998 and had worked for the vaccine safety arm (SAFEVIC) at the Hospital since its inception 10 years ago.

21. Dr T gave evidence that the mother expressed ‘significant concerns regarding vaccination’. The doctor asked the mother whether there was any information that she (the doctor) could provide that would make her feel more comfortable and the mother replied “no”. The doctor gave evidence that she was satisfied that she had answered all clinical questions and all reasonable questions in relation to the matter and that there are no additional risks to the children. She gave evidence that Guillain Barré syndrome was a rare neurological syndrome that may follow infection including influenza. She stated that people who had suffered that condition were not at increased risk following immunisation and that the causality between the condition and vaccination had not been supported. She said that the children were at population risk, meaning that they were at no greater risk than the rest of the population as a result of their father having suffered that condition. Dr T gave clear responses to the questions raised by the mother and I am not persuaded that there has been any failure on the part of the doctor to receive input from the mother for the purpose of making a recommendation in accordance with consent orders.

22. The mother cross-examined the doctor in relation to concerns that she had in relation to reports of litigation in the (country omitted) in relation to the connection between Guillain Barré syndrome and immunisation. The mother also asked questions in relation to the effects of aluminium and the doctor said that she had given a professional opinion in accordance with Australian and international views. In relation to the need to vaccinate for whooping cough, the doctor noted that although death from that condition was rare, people were not immunised in order to prevent death but rather to prevent the effects of whooping cough which she described as a condition that she would not wish on any person.

23. I am satisfied that the doctor engaged in a comprehensive consultation with the father and mother for the purposes of recommending an appropriate vaccination schedule for the children and am satisfied that that she has received input from both parents and considered that before making the recommendations. The doctor considered the correspondence from the mother dated 16 October 2017 (exhibit R1) and 22 October 2017 (exhibit R2).

24. The mother made submissions and gave evidence. Her principle reasons for not following the recommendation and allowing the children to be immunised were:

    a)Dr T is neither a neurologist or immunologist;

    b)at the time that she consented to the orders of 23 August 2017, she was not aware of the considerable research in relation to the possible correlation between vaccination and Guillain Barré  syndrome;

    c)she had a reasonable belief that based on new information that she had uncovered in the last week of October (which information was not known to her in the last week of August 2017) that there is a reasonable basis for setting aside the order of 23 August 2017 and otherwise not complying with it; and

    d)the new evidence was that she had looked at an American attorney’s website which purported to set out a list of claims that had been successfully made by people suffering from Guillain Barré  syndrome against pharmaceutical companies. That list is annexed to the mother’s affidavit and admitted into evidence as exhibit R4.

25. The mother also relied upon the contents of a letter from her then solicitor, Mr G dated 3 November 2017, which were outlined by the mother in her evidence regarding new information.

The Law

1. I propose to briefly set out the law in relation to these proceedings. 

2. Part VII division 13A of the Act provides for the failure of a person to comply with court orders. Section 70NAC of the Act provides:

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if: 

   (a) where the person is bound by the order--he or she has:

   (i) intentionally failed to comply with the order; or

   (ii) made no reasonable attempt to comply with the order; or

   (b) otherwise – he or she has:

   (i) intentionally prevented compliance with the order by a person who is bound by it; or

   (ii) aided or abetted a contravention of the order by a person who is bound by it.

3. Section 70NAE deals with reasonable excuse for contravening orders. Section 70NAE(2)(a) and (b) provides:

   (2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if: 

   (a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b) the Court is satisfied that the respondent ought to be excused in respect of the contravention. 

4. The balance of the provisions in s.70NAE(2) are not relevant.

5. Section 70NAE is inclusive and includes reasonable excuses not explicitly referred to in s.70NAE(2).

6. The onus is on the Applicant to prove the elements of the alleged contraventions and the standard of proof is on the balance of probabilities. However, should the Respondent admit particulars but plead reasonable excuse, then the onus shifts to the Respondent on the same standard.

7. In summary, if the Respondent pleads a reasonable excuse, as the mother has done in this case, the onus is on her to prove that a reasonable excuse existed.

8. On the balance of probabilities, in terms of the Applicant’s onus, I am satisfied in this case that he has discharged the requisite onus in proving the alleged contraventions. The onus, therefore, has shifted to the mother and it is her responsibility in these proceedings to prove that she has a reasonable excuse for the contraventions, and it is that which I propose to turn to now.

9. I am not satisfied that the mother did not understand the obligations imposed by the order when she consented to the order. The mother is plainly a person who feels strongly that children should not be vaccinated and she held those views when she consented to the orders for the vaccination of the children.

10. I am satisfied that the mother attended upon the (omitted) Hospital and Dr T considered the matters put by her both in writing and at the meeting before making recommendations. There is no suggestion in the material that the applicant now refers to that was not in existence or available to her at the time of the consultation. It is apparent that the effect or impact of Guillain Barré syndrome and the risks that may arise through vaccination to the children were raised by the mother and considered by the consulting doctor prior to her making the recommendations. I am not satisfied that Dr T was not qualified to make the recommendations. I do not accept that the mother did not understand the order. Further, the order made provision for the children to be vaccinated in accordance with the doctor’s recommendations. Consent had been given to that process. The mother’s argument that she has not given or is still in the process of giving informed consent is untenable. No evidence has been produced to the court that would persuade me that the consent order of 23 August 2017 should be set aside. There is no suggestion that the order was procured by fraud, misrepresentation or duress.

11. For these reasons I find that the respondent mother has contravened order one of the order of Judge Hartnett made 23 August 2017 without reasonable excuse.

1. Section 70NBA(1) of the Act provides power to the court to make an order varying a primary order if the court finds that a person committed a contravention of the primary order.

2. Section 70NBA(2) and (3) provides:

   (2)  If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:

   (a)  the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;

   (b)  there was no post-separation parenting program that the person who contravened the primary order could attend;

   (c)  because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post-separation parenting program, or a part of such a program;

(d)  the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.

(3)  This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.

1. Section 70NBA(1) is inclusive and includes reasonable excuses not set out in s.70BA(2).

2. In McClintock & Levier [2009] FamCAFC 62, Cronin J at [233] stated :

   [t]he focus of the court therefore in dealing with the contravention application under Division 13A must be in making orders which will enforce future compliance with its orders.

3. In considering this matter, I have made orders that will ensure compliance with the order of 23 August 2017. In my view there is nothing to be gained by imposing a penalty or seeking to punish the mother for non-compliance when compliance can be achieved by another means.

4. In my view it is manifestly in the best interests of these children to be vaccinated in accordance with the consent orders that were made on 23 August 2017. The parties had previously agreed to this process and for the parents to be engaged in protracted applications regarding what has been previously been agreed would not be in the children’s best interests.

5. Further, no admissible evidence has been placed before the court which would persuade me that following the recommendation of the consulting paediatrician from the (omitted) Hospital was not in the best interests of the children.

6. The orders given effect to the consent orders made on 23 August 2017. As noted above, no evidence was filed which would persuade the court to set aside those orders. The mother was on notice that the court may make orders of the kind that have been made in the contravention application.

7. For these reasons the court makes the orders as set out above.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 6 December 2017