Redden and Mains
[2010] FMCAfam 1338
•9 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REDDEN & MAINS | [2010] FMCAfam 1338 |
| FAMILY LAW – Parenting – time with orders – surname by which child is to be known – risk benefit analysis as to whether child is to be immunised. |
| Family Law Act 1975, ss. 61DA, 60CC |
| Chapman & Palmer (1978) FLC 90-510 Beach and Stemmler (1979) FLC 90-692 Flanagan and Hancock (2001) FLC 93-074 |
| Applicant: | MR REDDEN |
| Respondent: | MS MAINS |
| File Number: | PAC 4550 of 2009 |
| Judgment of: | Dunkley FM |
| Hearing date: | 16, 17 and 24 September 2010 |
| Date of Last Submission: | 24 September 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 9 December 2010 |
REPRESENTATION
| Solicitors for the Applicant: | G & D Lawyers |
| Counsel for the Respondent: | Ms Falloon |
| Solicitors for the Respondent: | Brian Samuel & Associates |
ORDERS
That all previous parenting orders are discharged.
The parties shall have equal shared parental responsibility for [X] born [in] 2005.
[X] shall live with the mother.
[X] shall spend time with the father as follows:
(a)From the date of these orders until 26 January 2011:
(i) Each Wednesday from 3pm to 7pm.
(ii)Each alternate weekend from 4pm Friday to 4pm Sunday, commencing the first Friday after these orders are made.
(iii)For one half of the December 2010 / January 2011 school holiday period on a week about basis: commencing at noon on Saturday 18 December 2010, and concluding at noon on 25 December 2010; commencing at noon on 1 January 2011 and concluding at noon on 8 January 2011; commencing at noon on 15 January 2011 and concluding at noon on 22 January 2011.
(b)From 26 January 2011 to 20 December 2011:
(i)During school term time, each alternate weekend from after school Friday to 6pm Sunday, commencing the second Friday of each school term.
(ii)For the first week of the school holidays at the end of Term 1, Term 2 and Term 3, commencing at 9am on the first Saturday, and concluding at 6pm on the middle Sunday.
(iii)On Father’s Day if she is not already spending time with her father, from 10am to 6pm.
(iv) On [[X]’s birthday omitted] 2011 from the conclusion of school until 7pm.
(v) At such other times as the parties agree.
(c)From 21 December 2011:
(i)During school term time, from after school Friday to 7.30am Monday each alternate weekend, commencing the second Friday of each school term.
(ii)For one half of each school holiday period at the end of Term 1, Term 2 and Term 3, being the second half in years ending in an even number commencing at 9am on the middle Monday, and concluding at 6pm on the last Sunday, and the first half in years ending in an odd number, commencing at 9am on the first Saturday and concluding at 6pm on the middle Sunday.
(iii)First half of school holidays at the end of Term 4 in odd numbered years, commencing at 9am on the day after the school term ends until 6pm on the middle day of the school holiday period.
(iv)The second half of school holidays at the end of Term 4 in even numbered years, commencing at 6pm on the middle day of the school holiday period until 6pm on the day before the new school term begins.
(v)On Father’s Day, if that is not already a time that she is spending with the father, from 10am to 6pm.
(vi)On [[X]’s birthday omitted] from after school until 7pm, or if it is on a non-school day, from 3pm to 7pm.
(vii)At such other times as the parties agree.
The fathers time with [X] shall be suspended:
(a)On Mother’s Day from 10am to 6pm
(b)On [[X]’s birthday omitted] if she is otherwise spending time with him pursuant to Order 4(a)(ii) and Order 4(c)(i) from 3pm to 7pm.
To facilitate the spend time with Orders, the father shall collect [X] either from her school, or from the mother’s residence, as is appropriate, at the beginning of each period, and the mother shall collect [X] from the father’s residence at the end of each period.
Neither party shall denigrate the other party in the presence of hearing of [X], and so far as it reasonably possible, shall not allow [X] to be in the presence of any person who engages in such denigrative behaviour.
Each party shall keep the other party advised of any major or significant medical illness, any major or significant schooling issue, or any other issue of major or significant important in the child’s life.
Each party shall keep the other advised of their residential address, landline telephone number, mobile number and email address.
Notwithstanding Order 2 above, [X] shall be immunised for Measles, Mumps, Rubella, Diphtheria, Tetanus, Pertussis, Varicella and Papaloma Virus, with the appropriate number of doses as recommended by the Australia Government Department of Health and Aging.
This case is listed for directions with respect to Order 10 above, at 9.30am on 16 December 2010.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.
These orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Magistrates Court Rules (2001) to include the words “in odd numbered years” at paragraph 4(c)(iii), and the entirety of paragraph 4(c)(iv).
IT IS NOTED that publication of this judgment under the pseudonym Redden & Mains is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4550 of 2009
| MR REDDEN |
Applicant
And
| MS MAINS |
Respondent
REASONS FOR JUDGMENT
[X] is the only child of the relationship between Mr Redden and
Ms Mains. [X] is five. [X] commences Kindergarten in 2011 and will be 6 on [date omitted] 2011.
The parties agree that [X] should live with her mother.
The parties disagree as to the time that [X] should spend with her father.
[X] has not been immunised. Ms Mains opposed immunisation.
Mr Redden seeks orders form the Court to facilitate [X] being immunised.
Both parties concede that immunisation of [X] is an issue relevant to parental responsibility, and that the Court has power to make orders regarding [X]’s immunisation.
Background
1977 – Mother born.
1977 – Father born.
June 2004 – Parties commence living together, but never marry.
Late 2004 – Parties separate.
2005 – [X] born.
7 April 2006 – Consent Orders made by Federal Magistrate Ryan, providing that [X] lives with her mother, and that the parties have shared responsibility or long term care, welfare and development decisions. The orders also include a graduated regime for [X] to spend time with her father, and an order as follows:
“Neither the father or any other person shall have the child immunised during any of the fathers contact periods”.
September 2007 – Father purchases home in [S] to be close to the mother’s home and residence. They live at [address omitted], [S].
2008 – Father marries his current wife, Ms R.
29 September 2009 – Father files initiating Application seeking final parenting orders, an order that [X] receive all her immunisations, that the mother cause [X] to live within 25 kilometres of the father’s residence, and that [X] be known by the surname [Mains-Redden].
18 November 2009 – Orders by consent that [X] live with her mother and spend time with her father each Wednesday from 3pm to 7pm, and each alternate weekend from 4pm Friday to 4pm Sunday. During the long December / January school holiday period the fathers weekend period extended to 4pm on the Monday, then from 29 January 2010 reverted to the original period, being 4pm Friday to 4pm Sunday.
16 December 2009 – Mother delivers letter to father via [X], informing him that she and [X] would be moving to [N].
18 December 2009 – Mother and [X] move to [N], and live at [address omitted].
[Date omitted] 2010 – [Y], the child of the relationship between the father and Ms R, born.
17 March 2010 – Mother files Amended Response.
1 June 2010 – Further interim consent orders made discharging the orders of 18 November 2009, providing for the child to live with the mother, for the parties to have equal shared parental responsibility, continuing the order that no person is to have the child immunised, providing for the father to spend time with [X] each Wednesday afternoon from 3pm to 7pm, each alternate weekend from 4pm Friday to 4pm on Sunday, and for week about periods during the school holidays, and an order requiring the parents to do all things to enrol the child at [B] School to commence school in 2011.
Orders Sought
Father
The father sought final orders as set out in his Initiating Application filed 29 September 2009, amended as set out in his case outline document updated as at 16 September 2010.
Mother
The mother sought orders as set out in her amended Response filed 17 March 2010.
Documents
Father
In support of his Application, the father relied on his three affidavits sworn 24 September 2009, 31 January 2010 and 24 May 2010. He additionally relied on the Affidavit of Ms R sworn 31 August 2009, and two Affidavits by Dr W sworn 24 May 2010 and 21 June 2010.
Mother
The mother relied on her Response, her Affidavits sworn 5 November 2009 and 29 April 2010, the Affidavit of Mr M sworn 5 November 2009, the Affidavit of Ms K sworn 6 November 2009, and the Affidavit of Dr S sworn 4 May 2010.
Other Documents
A Family report by Mr G dated 6 April 2010 became exhibit A.
An immunisation calculator from South Australian Health became exhibit B.
A publication from the New South Wales department of Health and Aging titled “Immunisation / Myths and Realities / Responding to arguments against immunisation / A guide for providers” became exhibit C.
Printouts from the New South Wales Department of Health, being a statistical analysis of the disease notification rates in New South Wales residents, became exhibit D.
An article published in “Vaccine”, being a letter to the editor in ‘Response to Dr L and Dr M’s attack on myself as a public opponent of vaccination’ from Dr S became exhibit E.
A printout of the Curriculum Vitae relevant to Dr M and Dr L became exhibit F.
A ring back folder of article gathered by Dr S became exhibit G.
Orders to be made by consent
The following orders will be made with the consent of the parties:
·That [X] is to live with her mother. That [X] is to spend time with her father, for some time on each alternate weekend, for some time of Father’s Day, for some time on [X]’s birthday, for some time at Christmas and for some time during the holidays.
·That the parties share the travel arrangements between their respective households for [X], such arrangements to be defined.
Issues
·Is there to be an order for equal shared parental responsibility, or sole parental responsibility in favour of the mother?
·The definition of the details about the times [X] spends with the father.
·The transportation arrangements to be ordered to facilitate [X]’s time with the father.
·The surname by which [X] is to be known.
·Is [X] to be immunised?
Determination
Is there to be an order for equal shared parental responsibility, or sole parental responsibility in favour of the mother?
Section 61DA(1) of Family Law Act mandates the applying of a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility.
Section 61DA(2) specifies that the presumption does not apply where a parent or a person who lives with a parent has engaged in abuse of the child or another child or has engaged in family violence.
Section 61DA(4) allows a rebuttal of the presumption as a discretionary decision if it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The submission of the solicitor for the father is accepted, that there is no evidence of child abuse and no evidence of family violence that would cause a rebuttal of the presumption.
Also accepted is the submission of the father’ solicitor that as an exercise of discretion, there is no evidence that causes it to be concluded that anything other than equal shared parental responsibility is in [X]’s best interests.
In dealing with the discretionary aspect as provided in s.61DA(4), it is clear that recently the parties have had some difficulty with communication, but they have been able to co-operatively agree to [X]’s enrolment in [B] School. They have each had some involvement with that school.
The parties have each recently engaged in actions effecting [X] that they have not discussed with the other parent in a satisfactory way. The father with respect to [X]’s trip to [omitted], and the incident where she gained access to the family pool without immediate adult supervision. In the mother’s case, where she moved to [N] with little notice to the father. Neither of those actions of the parent’s is so serious as to cause a conclusion to be reached that it would be other than [X]’s best interest for the parents to have equal shared parental responsibility.
It is apparent from paragraph 53 of the Family report that at some stage there was a problem for [X] sleeping at the father’s home because she was scared of the dark. The mother raised this as an issue with the father, and he immediately arranged for a nightlight. Clearly the parties have the ability to focus on [X]’s needs and to respond to suggestions as to parenting.
There is no doubt that each party is motivated to be involved in [X]’s upbringing.
Mr G noted that at observation [X] appeared chatty and secure with each of her parents, and that she behaved naturally with Ms R, and was happy to see [Y][1].
[1] Family Report paragraph 32
Mr G concluded that [X] was an emotionally well adjusted child[2].
[2] Family Report paragraph 33
For all of the above reasons, it is in [X]’s best interest that her parents have equal shared parental responsibility for her, and an order to that effect will be made.
In making that order, it is noted that it will be subject to an order relating to [X]’s immunisation.
The definition of the details about the times [X] spends with the father, and the transportation arrangements to be ordered to facilitate [X]’s time with the father
Both parties agree that it is in [X]’s best interests to spend time with her father. They disagree as to the definition of that time.
Mr Redden lives at [S]. He works as a [omitted]. He works Monday to Friday from 6am to 2pm. He works occasionally on a Saturday morning from 4am to 7am. He does some overtime from time to time.
In 2011 [X] will commence Kindergarten at [B] School.
In paragraph 7 of his affidavit sworn 24 May 2010, the father says:
“I have changed my application after meeting with the family report writer and accepting the fact that the mother had moved to [N] and that we needed an arrangement that worked for [X] without requiring her to do to (sic) much travel”.
In paragraph 14 of his affidavit sworn 31 January 2010, the father says:
“I did a Google search and ascertained that her [Ms Mains] address in [N] will now be 49.6 kilometres from my house and that it will take about 54 minutes to drive this distance”.
His evidence with respect to the distance and travel times remained unchallenged.
Ms Mains parents live at [S]. Her parents conduct a business at [S]. She works at that business on Monday mornings for 3 hours.
The mother receives a car from her parent’s company as part of her employment package. Because of her work, she says it is not manageable to pick up [X] on a Monday morning from the father’s home, return her to school at [B] and return to her workplace. To do that she says she would have to leave home at 5.30am.
The mother’s evidence as to why she could not change her work days was equivocal, and not compelling, and as a consequence I conclude there is no real reason why she could not work a day other than Monday on an alternate week basis.
[X] will commence Kindergarten in 2011. She is already experienced in attending pre-school a number of days a week. It is submitted that an hours journey on the Monday morning each second weekend would be tiring for [X], and might impact her education.
There is merit to that submission with respect to [X]’s Kindergarten year. By year 1 she will be settled and should cope with the travel on an alternate Monday morning.
Although Mr Redden would be at work on a Monday morning, [X]’s relationship with Ms R and with [Y] is important. She is confident to be cared for by Ms R. She has holidayed alone with Ms R in the absence of her father.
By 2012, an extension of the alternate weekend period to Monday morning will give her an extra night in the father’s household that will enhance the already good relationship she experiences in that home.
It accords with the recommendation in paragraph 37 in the Family Report of being of benefit to [X]. It is better to add that extra night at the end of the weekend, so that she only has one trip to her school. If it were added at the beginning of the weekend, it would necessitate three trips from [S] to [B], one at the end of school on Thursday, one at the beginning of school on Friday and one at the end of school on Friday. The cumulative nature of three trips has the possibility to be overtaxing for [X], whereas by 2012, one trip should not be.
Mr Redden’s work time enables him to collect [X] on Friday afternoon from her school. It will give him the opportunity to be at that school to interact with teachers if necessary, and to be seen by [X] to be involved with her education.
Ms Mains can do the collection on Monday morning. On the evidence there is no evidence why she cannot change her work arrangements for that day.
By Ms Mains being involved in some of the transportation, it will show to [X] the existence of a cooperative arrangement between her parents.
Changing the regime in 2012 will benefit [X] by enabling her to have settled into her school regime in 2011. Being a year older, she should also not be tired by the travel.
For the above reasons, during school term time, the alternate weekend period will commence at the conclusion of school on Friday, with
Mr Redden collecting [X]. The period will end at 6pm on Sunday during 2011, and 7.30am on Monday commencing in 2012. Ms Mains will do the collections on Sunday night and Monday morning.
With respect to the holiday period that [X] is to spend with Mr Redden, it is submitted on his behalf that those periods should each be divided equally. It is submitted on Ms Mains behalf that the periods should be divided equally. But during the longer December / January school holiday period only, that period should be divided on a week about basis, as Ms Mains is of the view that [X] would not cope with more than 7 days separation from her.
The difficulty with that submission is that there is simply no evidence one way or the other. It is merely a feeling on her behalf. True enough, [X] has not experienced more than 7 days separation from her.
Implicit in the recommendation in paragraph 39 of the Family Report is Mr G’s understanding that by Christmas 2010, [X] would be at a developmental stage that would enable her to sustain a two week separation from her mother, and that by the end of 4th terms in 2011, she will be able to sustain a three week separation from her mother.
The recommendation in paragraph 39 in the Family report is unchallenged, and is the only reliable evidence upon which this decision can be based.
Accordingly, [X] will spend a two week period with her father during the school holiday period in December 2010 to January 2011. Thereafter she will spend one week of each of the shorter term school holidays with her father, and by December 2011 / January 2012 she will spend a continuous period equal to one half of that school holiday period with her father. Her age at that time and her good and secure relationship with the father, Ms R and [Y] will make this well manageable by [X].
So as to avoid the potential for dispute between her parents, an order will be made defining the periods to be spend during the school holidays, and alternating the periods that she spends with her father between the first half and the second half.
Given the importance of Christmas, [X]’s birthday, Mother’s Day and Father’s Day, specific orders will be made to deal with those important events. The orders sought by the parties reflect the importance of those events, and the need to define arrangements with respect to those events. For the purposes of consistency, the transportation arrangements will be identical with those that relate to the alternate weekend periods during school term time.
There is no evidence to conclude that these orders are not reasonably practicable, provided the mother does not work on Monday mornings, a change that she can easily make.
The surname by which [X] is to be known.
[X] was registered at birth with the relevant New South Wales department with the name [X] Mains.
Mr Redden acknowledged during his cross examination that [X] has always been called [X] Mains. He further conceded that that is how she knows herself. Despite this he sought a hyphenated surname. In paragraph 63 of his affidavit sworn 24 September 2009, Mr Redden says:
“[X] has always had only [Ms Mains]’s surname, but it is now that Ms R and I are starting to have children of our own. I have come to believe that it will be important for [X] to have Redden within her surname so that she can identify with and feel connected to our children who will have the surname Redden, and see herself as part of a family. I am happy for it to be [Mains-Redden]”.
Ms Mains evidence was that Mr Redden consented to [X] being registered at birth as [X] Mains. Since then, there has been a passport issued in her name. At pre-school she is known by the name [X] Mains.
Since the inception of Family law Act there has been a long history of litigation relation to children’s names. Chapman & Palmer (1978) FLC 90-510 was one of the earliest cases dealing with this issue. In 1979 in Beach and Stemmler (1979) FLC 90-692 further considerations were added to the list of considerations found relevant in Chapman & Palmer.
In Flanagan and Hancock (2001) FLC 93-074 the issue was again discussed.
Some of the issues to be considered are-
·The advantages, both short term and long term, which accrue to the child if her name remains as it is
·The time that the child has with each parents
·The degree of identification that the child has with each parent and with other children of the father and mother
·The short and long term effects of any change to the child’s surname
·Any embarrassment likely to be experienced by the child
·Any confusion of identity which may arise for the child, if a name is changed or not changed.
By her attendance at pre-school, [X] has become well used to her name. She responds to it. She has been enrolled at Kindergarten with that name. She has two primary identity documents already in that name, being a birth certificate and a passport. She has always been known by that name.
Having a surname different to her father, her step-mother and [Y] has not effected her relationship in any way with any of those people. The contents of the Family Report are clear evidence of this.
[X] is known to her treating medical practitioners by the surname Mains. As a consequence her name must be recorded with Medicare in that fashion.
Considering all of the above, it would be best for [X] if she were to continue to be known by the surname Mains.
Is [X] to be immunised?
This issue assumed the most importance at the trail.
From the earliest orders relating to the parenting of the child there has been an order in place preventing her being immunised. The earliest form of this injunction was made by consent, and it was later continued by consent.
It is the father’s evidence that he was desperate to establish a relationship with [X], and thereby initially consented to the injunction so that he could begin spending time with her.
It is his evidence that [X]’s immunisation has always been an issue for him, but that it assumes even greater significance during Ms R’s pregnancy when there was a possibility that [X], during a visit, might have had German Measles. Had that been the case, it might have had disastrous consequences for [Y]’s development.
Helpfully for the determination of this case, each of the parties called expert medical evidence.
Mr Redden called Dr W, a staff specialist in paediatrics at [omitted] hospital. He swore two Affidavits and was cross examined. Ms Mains called Dr D, a general medical practitioner of 27 years experience in clinical practice. He also swore an Affidavit and was cross examined.
Ms Mains also called Dr S. She swore an Affidavit and was cross examined. Dr S holds a PHD. She has no medical qualifications. She has no immunology qualification. She is a retired principal research scientist. Her expertise is in reading and interpreting reports. She is an immunisation sceptic. Her evidence was entirely unhelpful in that, unlike Dr’s W and D, she was closed to any interpretation other than immunisation having negative consequences.
Dr S made outlandish statements unsupported by any empirical evidence, for example:
“Small Pox was not wiped out by vaccination” and “Small Pox vaccination had to be stopped because of adverse reactions” and “80% of adults suffer anaphylactic response to tetanus injection”.
She asserted that this fact was documented in medical journals. On being challenged on that fact, she could not produce any journals to that effect. In closing submissions, Counsel for the mother fairly conceded Dr S had been unable to produce any documents that enabled her to make her statements relating to the tetanus injection.
She engaged in conspiracy theory, for example, “The World Health Organization is tainted in it’s recommendations for vaccination because of connections with drug company money”.
Dr S considered no material, nor produced any material that was pro-immunisation.
Her evidence is unhelpful by being so partisan.
That the mother called her as part of her case gives rise to a significant concern, in that it indicates the propensity to go to any length to support her view that immunisation is not in [X]’s best interest. In Dr D she had a perfectly compelling, reasonable and experienced medical expert.
Counsel for the mother sought to portray her client, with respect to this issue, as being a concerned parent who had had a bad reaction to immunisation herself, but as a parent who was willing to consider whether immunisation was in [X]’s best interest. Also, as a parent who had weighed the pros and cons of immunisation, and had decided that immunisation was not best for [X]. Who was a parent who was not closed to the concept of immunisation if it were medically necessary.
The calling of Dr S detracted from these submissions. As did the mothers evidence with respect to the Human Papillomavirus injection., which is currently given to girls in year seven of high school.
Her evidence with respect to that vaccination was that she would discuss with [X] at that time [when she was about 11 or 12 years of age], the risks of contracting a sexually transmitted disease and the pros and cons of being vaccinated, and then leave it to [X] as to whether she would be so vaccinated.
As I indicated to Ms Mains’ Counsel, this is an abrogation of her parental responsibility. At that age, [X] is unlikely to have a proper appreciation of the risks, or of the benefits.
In viewing the Human Papillomavirus vaccination in that way,
Ms Mains is clearly indicating that she is unable to make that decision. That is undoubtedly because she’s clearly anti-immunisation. To present her otherwise is contrary to all the evidence.
This finding however does not determine the issue as to whether or not [X] should be immunisation. [X] is a five year old girl who in all respects is healthy. Dr D gave balanced and helpful evidence. He noted there was no compulsion for children to be immunised in Australia.
Prior to giving evidence he had the benefit of reading Dr W’s affidavit. He disputed Dr W’s assertion that Meningococcal C would be the most important vaccination for [X], on the basis of assessing the risk of catching the disease, as the notifiable statistics indicated that no five year old in New South Wales contracted Meningococcal C in 2009. There were 42 cases of five year old contracting Meningococcal B, but he noted that Meningococcal B was not a vaccinable disease. On this basis he asserted that Meningococcal C could not be the most important vaccination for [X]. He assessed the likelihood of catching Meningococcal C as one in a million. He asserted this is not a high incident, and not what most people would regard as an unacceptable risk.
Dr D made similar observations with respect to Measles, Mumps and Rubella, noting that the statistic indicated that there were two cases of reported Measles a month on the Far North Coast of New South Wales, and that basically Measles, Mumps and Rubella were under control. He gave evidence that Measles presents as the most difficult disease for females but that incidence of Measles is reported widely and vaccination can then be given successfully and effectively at that time. He said that the vast majority of cases of measles come from overseas. He gave evidence that Diphtheria and Tetanus occurrences are virtually zero in Australia.
For a five year old he said that Whooping Cough (Pertussis) is not life threatening. It is a persistent cough and an annoying cough, He noted that the greatest risk for Whooping Cough was young babies in hospitals.
He noted the risk of vaccination for [X] to be local inflammation at the site of the injection and perhaps a teary and upset child for a couple of days. In rare cases there can be a more severe reaction. He assessed that risk of that severe reaction to be “very very” rare and probably less than 1 in 100,000. He gave evidence that a risk of severe reaction to the Measles, Mumps and Rubella vaccination to again be about 1 in 100,000.
He gave evidence that there is a zero risk of any child in Australia contracting polio as it stands currently.
With respect to the Papillomavirus, what he said was that the immunisation is now given before girls are sexually active. Dr D said that there was no large scale population study as to the effectiveness of the vaccine. He conceded that the projections are that it would significantly reduce the incidence of cervical cancer in women who have multiple sexual partners, and who are infected with Papaloma virus.
Dr D agreed with Dr W, that it does not follow that if a mother had problems with immunisation, that that would automatically flow through to [X].
With respect to Hepatitis B, Dr W gave evidence that there needed to be blood to blood contact for that disease to be transferred.
Dr W’s recommended immunisation on the basis that there was no unacceptable risk to [X]. He asserted that the immunisation, as recommended by the Department of Health and Aging, should be implemented. He noted:
“the likelihood of becoming infected with specific vaccine preventable disease is difficult to quantify, as there are many factors that influence risk, including conditions of living, environment, population mixing patterns, infection control practices, school infections, international travel and host immunity”.
It was agreed that if [X] remained unimmunised and there were outbreaks of some vaccine preventable diseases, that [X] would need to be withdrawn from school for some period.
It was the mother’s evidence that [X] will shortly commence a summer time “nippers” program run by Surf Life Saving Australia at her local beach. This raises a potential risk for [X] if she were to step on a dirty or rusty object in the sand that were to cut her.
It was submitted on behalf of Ms Mains that if this were to occur then she would seek appropriate medical treatment and allow a Tetanus injection. For reasons set out earlier, it is not certain that she would.
Mr and Ms R hope to have further children. If [X] were unimmunised for Whooping Cough then she might not be able to spend time in
Mr Redden’s household with the baby until such time as the baby was immunised. That could potentially mean she misses out on the opportunity of spending some time for some months with Ms R and [Y]. There is also the potential, as occurred during the last pregnancy, for [X] not to be able to be present with respect to the risk of passing on Rubella. These factors are also relevant and need to be considered[3].
[3] Section 60CC(3)(m) Family Law Act 1975
Having regard to each of the medical experts evidence, the risk to [X] of suffering a significant reaction to immunisation is extremely remote.
Similarly, the risk to [X] of contracting some of the diseases preventable by the immunisations schedule is also extremely remote, and in the case of Polio, whilst she remains in Australia, non-existent.
In balancing the risk ratio it will be in [X]’s best interest if she is immunised for Measles, Mumps, Rubella, Diphtheria, Tetanus, Pertussis, Varicella and Human Papillomavirus.
Measles, Mumps, Rubella are given in the same dose, and two doses are required. Diphtheria, Tetanus, Pertussis are given in the same dose, and three doses are required. Varicella is a single dose vaccine, as is the Papillomavirus vaccine. If Rubella and Tetanus could be given individually, [X] would not need the other vaccines. The evidence suggests Rubella and Tetanus are not available separately.
Given that there is little likelihood of Diphtheria, Tetanus, Pertussis contracting Meningococcal C, Hepatitis B or Polio, on the same risk benefit analysis, such vaccinations are unnecessary.
By being immunised for Measles, Mumps, Rubella, Diphtheria, Tetanus, Pertussis and Varicella, [X] will not need to be withdrawn from school, or from visits with her father, her step-mother and any potential further child they might have.
There will also be an order made now for [X] to receive the Human Papillomavirus immunisation at the appropriate age, so as to avoid the necessity for the parties to re-litigate, although it is unknown what [X]’s sexual history will be, the benefit of avoiding the possibility of cervical cancer if she were to have multiple sexual partners far outweighs the risk to her of receiving the immunisation at the appropriate age.
It will be in the best interest of [X], and that is the paramount consideration, for the above immunisations to be given.
Conclusion
The parties have agreed that if there is to be orders for immunisation, which there will be, that the reasons for judgments should be electronically transmitted to their lawyers, and the case re-listed as to who will be the party responsible for ensuring the administration of the immunisation. Accordingly, an order to that effect will by consent be made.
I certify that the preceding one hundred and twenty-one (123) paragraphs are a true copy of the reasons for judgment of Dunkley FM
Date: 6 December 2010
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