Rusena & Rusena

Case [2022] FedCFamC1A 149

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Rusena & Rusena [2022] FedCFamC1A 149

Appeal from: Rusena & Rusena [2022] FedCFamC2F 472
Appeal number(s): NAA 85 of 2022
File number(s): SYC 5818 of 2018
Judgment of: MCCLELLAND DCJ
Date of judgment: 23 September 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from orders allocating sole parental responsibility to the respondent regarding whether the parties’ children should be administered with a vaccine against the COVID-19 virus – Where the parties have a history of dispute concerning the medical care of the children – Two grounds of appeal – Where the appeal is misconceived – No error established – Appeal dismissed – Appellant to pay costs of respondent and Independent Children’s Lawyer.
Legislation:

Family Law Act 1975 (Cth) ss 43(1)(c), 60B, 60CA, 60cc, 65AA, 117(2A)(e)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 13.10

Cases cited:

A.C. v. L.L., 2021 ONSC 6530

Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44

Buckman v Wyckham, [2020] B.C.J. No. 2175; 2020 BCSC 2076

Davies v Todd [2022] O.J. No. 1817; 2022 ONCJ 178

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

HJ Heinze Company Australia Ltd v Turner (1998) 4 VR 872

J.F.P v J.A.G [2022] B.C.J. No 534; 2022 BCPC 44

Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322

Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50

Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27

Re C and F (Children) [2003] 2 FLR 1054; [2003] EWHC 1376 (Fam)

Ribeiro v. Wright, [2020] O.J. No. 1267; 2020 ONSC 1829

State of Victoria v Bacon [1998] 4 VR 269
TK v JW, [2022] B.C.J. No. 197; 2022 BCPC 16
Number of paragraphs: 59
Date of hearing: 18 August 2022
Place: Sydney
Counsel for the Appellant: Mr Cummings SC
Solicitor for the Appellant: Mills Oakley
The Respondent: Litigant in person
Counsel for the Independent Children's Lawyer: Mr Hill
Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers Pty Ltd

ORDERS

NAA 85 of 2022
SYC 5818 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS RUSENA

Appellant
AND:

MR RUSENA

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

23 September 2022

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the costs of both the respondent and the Independent Children’s Lawyer within 28 days of those costs being agreed or assessed.

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…

Continue reading Rusena & Rusena

Sign in free to access the full text

Details
AGLC
Rusena & Rusena [2022] FedCFamC1A 149
Case
[2022] FedCFamC1A 149
Decision Date

CaseChat Overview and Summary

This appeal arises from a decision of the Family Court of Australia where the appellant sought to appeal against the primary judge’s reasons for judgment dated 14 April 2022. The appeal concerns an application by the appellant for urgent injunctive relief to restrain the respondent from arranging for their two children to receive a COVID-19 vaccination. The children, who currently live with the respondent and spend six nights each fortnight with the appellant, were eligible to receive a COVID-19 vaccination from 10 January 2022. The appellant sought to prevent the respondent from arranging for the children to receive the vaccination. The primary judge dismissed the application for relief and made orders concerning the children’s schooling and arrangements for spending time with each parent.

The court was required to determine whether the primary judge erred in dismissing the appellant’s application for urgent injunctive relief. The court was also required to determine whether the primary judge erred in making orders concerning the children’s schooling and arrangements for spending time with each parent. The court considered the appeal under the broad and expansive view of the grounds of appeal as is reasonably possible.

The court found that the appeal was misconceived and that no appealable error had been established in the manner in which the primary judge had exercised her discretion and explained her reasons for doing so. The court found that the primary judge had not erred in dismissing the appellant’s application for urgent injunctive relief. The court found that the primary judge had not erred in making orders concerning the children’s schooling and arrangements for spending time with each parent. The court found that the primary judge had exercised her discretion reasonably and that her reasons for doing so were adequate.

The appeal is dismissed. No orders as to costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The reasons which follow explain why I have determined that the appeal is, in its terms, misconceived and, in any event, taking as broad and expansive a view of the grounds of appeal as is reasonably possible, no appealable error has been established in the manner in which the primary judge has exercised her discretion and explained her reasons for doing so. Background The relevant background to this matter is set out from [4]–[15] of the reasons for judgment of the primary judge dated 14 April 2022 (“the reasons”). Relevantly, for the purpose of this appeal, I note the following. The children currently live with the respondent and spend six nights each fortnight with the appellant. The parties were in a relationship for seven years between 2011 and 2018. On 22 January 2019, consent orders were entered that provided for the children to live with the appellant and spend six nights each fortnight with the respondent. Significantly, the orders provided for the parties to equally share parental responsibility for the children. On 17 August 2021, the appellant travelled to Queensland and left the children in the care of the respondent. She has since returned. Upon the appellant’s return from Queensland, the parties participated in a mediation on 22 December 2021. They were unable to resolve their differences. On 23 December 2021, the appellant, through her solicitors, wrote to the respondent noting that the children would become eligible to receive a COVID-19 vaccination as and from 10 January 2022 and seeking an undertaking from the respondent that he would not arrange for the children to receive that vaccination. Upon receiving no further response from the respondent, on 29 December 2021, the appellant filed an Initiating Application in the National COVID-19 List of this Court seeking urgent injunctive relief to restrain the respondent from arranging such vaccinations. On 6 January 2022, the respondent arranged for both of the children to be examined by their local general practitioner, Dr B, who provided the respondent with a medical certificate confirming that the children had no underlying health conditions which suggest that the children would be at a particular risk from being vaccinated against the COVID-19 virus. It is of significance that this issue was not in dispute during the course of the proceedings or in this appeal. To enable the issue of vaccination to be determined by the Court, on 5 January 2022 the parties consented to an order restraining either party from causing or facilitating the children receiving the COVID-19 vaccination pending further order. This was in the context where the vaccination application was subsequently set down for hearing on 30 March 2022 following an interim hearing before the primary judge on 15 March 2022. At the interim hearing before the primary judge on 15 March 2022, the matter was listed in respect to determining which school the children should attend and whether the children should spend additional time with the respondent. Orders were made for the children to attend the school nominated by the respondent, and for the children to live with the respondent and spend six nights per fortnight with the appellant. It was not disputed that the order identifying the school that the children were to attend was not intended to be an order for the respondent to exercise parental responsibility in respect to the children’s schooling.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.