Rusena & Rusena
[2022] FedCFamC2F 472
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rusena & Rusena [2022] FedCFamC2F 472
File number(s): SYC 5818 of 2018 Judgment of: JUDGE BECKHOUSE Date of judgment: 14 April 2022 Catchwords: FAMILY LAW – PARENTING – COVID-19 vaccinations – Where the mother seeks a restraint on the father from facilitating the children to be vaccinated against the COVID-19 virus without her consent - Where the father seeks sole parental responsibility with respect to having the children vaccinated against the COVID-19 virus – Where expert evidence informs risk-benefit analysis– Father allocated sole parental responsibility for discrete issue of children receiving COVID-19 vaccinations Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 43(c), 60B, 60CA, 60CC(l), 65AA, 65DAE, 69ZT
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Covington & Covington (2021) 63 Fam LR 173
Cranston & Persson(No 2) [2022] FedCFamC1F 187
Dyquiangco Jr. v. Tipay 2022 ONSC 1441
Lamos & Radin (No 2) [2022] FedCFamC2F 167
Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 30 March 2022 Place: Sydney Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: Family Law Matters Counsel for the Independent Children’s Lawyer: Ms Conte-Mills Independent Children’s Lawyer: Kathryn Renshall Lawyers ORDERS
SYC 5818 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RUSENA
Applicant
AND: MR RUSENA
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
14 APRIL 2022
ON A FINAL BASIS THE COURT ORDERS THAT:
1.Order 1 of the Orders of 22 January 2019 is varied by allocating sole parental responsibility to the Father with respect to the specific issue of the children X born in 2014, and Y, born in 2016 (“the children”), receiving any vaccinations against the COVID-19 virus.
2.The Father will provide the mother with seven days’ notice of his intention to have the children vaccinated against the COVID-19 virus, and the Mother will have 72 hours to communicate to the Father any views that she may wish to appropriately express.
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 Rusena & Rusena has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
These are parenting proceedings concerning the discrete issue of whether the father Mr Rusena (“the father”) should have sole parental responsibility to determine whether X born in 2014, age 7, and Y born in 2016, age 5 (“the children”) should receive COVID-19 vaccinations. Or in the alternative, whether the Court should make orders restraining the parties from facilitating the children being administered the COVID-19 vaccine, as sought by the mother Ms Rusena (“the mother”).
The children live with their father and spend six nights each fortnight with their mother, pursuant to interim orders made by this Court on 15 March 2022.
This judgment explains why the Court has decided to dismiss the restraint sought by the mother in her Amended Application for Final Orders filed 11 March 2022, and make an order allocating the father sole parental responsibility for the specific issue of the children receiving vaccinations against the COVID-19 virus.
BACKGROUND
The parties commenced cohabitation in 2011 and were married in 2013.
They separated on a final basis on 15 February 2018 and a divorce order was made on 9 April 2019.
On 22 January 2019 Judge Henderson (as she then was) made, with the consent of the parties, parenting and property orders on a final basis. Relevantly those orders provided that the children were to live with the mother and spend six nights each fortnight with the father. The parents agreed to equally share parental responsibility for the children.
On 17 August 2021 the mother left the children in the care of the father and travelled to Queensland. The events that ensued led to the commencement of these proceedings.
Upon the mother’s return from Queensland the parties participated in a mediation on 22 December 2021.
On 23 December 2021 the legal representative for the mother wrote to the father seeking his undertakings not to allow the children to receive the COVID-19 vaccination upon them becoming eligible to do so on 10 January 2022.
On 29 December 2021 the mother, having received no response to her letter of 23 December 2021, filed an Initiating Application in the COVID-19 list seeking an urgent injunctive order to restrain the father from facilitating the children receiving the COVID-19 vaccination.
On 6 January 2022 the father had both children examined by their local General Practitioner Dr B. Dr B produced a medical certificate confirming that the children had no underlying health conditions which would prevent them from being vaccinated against COVID-19.
On 28 January 2022 the father filed his Response to Final Orders and supporting affidavit. Procedural orders were made on 5 January 2022. The parties consented to an order restraining the parties from causing or facilitating the children receiving the COVID-19 vaccination pending further order. The vaccination application was set down for final hearing on 30 March 2022.
On 15 March 2022 the matter was listed before me to determine the competing interim applications filed by the parties. There was controversy about the school that the children were to attend and which parent they should live with. Interim orders were made varying the orders of 22 January 2019. In accordance with the orders of 15 March 2022 the children now reside with the father and spend time with the mother six nights each fortnight.
The parties agreed to the hearing of this issue being expedited and heard on a final basis. In doing so, I am asked to make orders that will vary the final orders made on 22 January 2019. The parties agreed that there had been a change of circumstances in this particular case that warranted the Court doing so.
On 21 March 2022 X tested positive for COVID-19 and has since recovered.
EVIDENCE AND ORDERS SOUGHT
The parties were legally represented and had the benefit of an Independent Children’s Lawyer.
The only witness cross examined was Dr C, the father’s single expert.
All parties provided written and oral submissions. Each of those submissions have been properly considered in reaching the determination. However, I am not required to specifically address or respond to them individually.[1]
[1]Baghti & Baghti and Ors [2015] FamCAFC 71 at [63]-[64].
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is the balance of probabilities and in what follows statements of fact constitute findings of fact.
The mother seeks the following by way of final order:
1.That the Respondent be and is hereby restrained from causing or facilitating or allowing the children, X born in 2014 and Y born in 2016 (“the children”) to receive the Covid-19 vaccine, absent the prior written consent of the Mother.
2.That paragraphs 1 and 2 of the final relief set out in the Father’s Further Amended Response to an Initiating Application be and is otherwise hereby dismissed.
In support of such Orders, the mother relies on:
(a)Amended Initiating Application filed 11 March 2022;
(b)Child Impact Report dated 10 March 2022;
(c)Affidavit of Ms Rusena filed 17 March 2022; and
(d)Affidavit of Dr D filed 17 March 2022 (“Professor Dr D‘s Expert Report”).
The father seeks the following by way of a final order:
1. The Father has sole parental responsibility with respect to the specific issue of the children, X born in 2014 and Y, born in 2016, receiving any vaccinations against the COVID-19 virus.[2]
[2] Exhibit 1.
In support of such Order, the father relies on:
(e)Further Amended Response to Initiating Application filed 28 March 2022;
(f)Affidavit of Mr Rusena filed 11 March 2022;
(g)Affidavit of Mr Rusena filed 29 March 2022; and
(h)Affidavit of Dr C filed 29 March 2022.
The mother relied upon an expert report of Professor Dr D dated 17 March 2020. Professor Dr D included a 47 page curriculum vitae. At the risk of understating his professional background, achievements and expertise I note the following matters:
(a)He qualified as a doctor in 1982;
(b)He has been involved in vaccine research since 1998;
(c)He has an active involvement in the development of novel vaccines including protein vaccines and mRNA vaccines;
(d)He is the director of a biotechnology company which specialises in vaccine development and formulation and holds vaccine patents;
(e)He has led the development of a vaccine against COVID-19, being a protein-based vaccine which has received emergency authorisation in Iran.
Professor Dr D was asked to comment on the COVID-19 vaccinations presently available, having regard to the Australian Technical Advisory Group on Immunisation (“ATAGI”) recommendations.
I have considered the following documents which were tendered, and were marked with the following exhibit numbers:
(1)Father’s Minute of Order;
(2) Four source documents referred to in the Affidavit sworn by Dr C filed 29 March 2022: (a)Risk for Newly Diagnosed Diabetes >30 Days After SARS-CoV-2 Infection Among Persons Aged <18 years (MMWR Morb Mortal Weekly Report 2022);
(b)How Common is Long COVID-19 in Children and Adolescents (“The Paediatric Infectious Disease Journal: December 2021 – Volume 40- Issue 12-pe482);
(c)Research suggests COVID-19 affects brain even in milder cases (“newsGP” Jolyon Attwooll) ; and
(d)Multisystem Inflammatory Syndrome in US Children and Adolescents (The New England Journal of Medicine 29 June 2020).
(3)ATAGI recommendations on the use of the paediatric Pfizer COVID-19 vaccine in children aged 5 to 11 years dated 10 December 2021;
(4)Document titled “Coronavirus Disease (COVID-19) Advice for the Public” issued by the World Health Organisation dated 21 January 2022.
In addition to the exhibits, I have also had regard to additional material annexed and referred to in the witness affidavits, including but not limited to:
Documents referred to in Professor Dr D’s Expert Report
(a)ATAGI recommendations on the use of COVID-19 vaccines in all young adolescents in Australia dated 27 August 2021
Documents annexed to the father’s affidavit
(b)Medical Certificates by Dr B confirming the children’s health and suitability for immunisation including the COVID-19 vaccine
Similar public health advice to that adduced in these proceedings have been summarised by, and have informed the decisions of courts within, and superior to this jurisdiction, on the issue of vaccinating children between the ages of 5-11 years. For example see Lamos & Radin (No 2) [2022] FedCFamC2F 167 at [11] (“Lamos”) and Cranston & Persson (No 2) [2022] FedCFamC1F 187 at [58] (“Cranston”).
Further, similar advice from public health authorities have informed the decisions of foreign courts when deciding on vaccination issues concerning children. For example see Dyquiangco Jr. v. Tipay 2022 ONSC 1441 at [22] (“Dyquiangco”).
Information from the Therapeutic Goods Administration (“TGA”) and ATAGI informed the decision in Lamos. While there are some differing institutional sources of evidence in Lamos, Cranston, and Dyquiangco the advice informing these decisions are similar.[3] In these proceedings the evidence provides advice analogous to that which informed the decisions in Lamos, Cranston, and Dyquiangco.
[3]Cranston & Persson (No 2) [2022] FedCFamC1F 187 at [45], [56]-[58] (“Cranston”).
In summary, the advice from the evidence tendered in these proceedings in relation to COVID-19, and COVID-19 vaccinations for children between 5-11 can be summarised as follows:
(a)COVID-19 is a virus that can cause serious illness, death and long-term health issues.
(b)The virus is highly contagious and spreads easily.
(c)Most children who experience COVID-19 infection are asymptomatic or experience a mild illness. Those who are symptomatic typically have a short illness for approximately 5 days.
(d)Children with certain medical conditions have an increased risk of severe outcomes from COVID-19. Such conditions include obesity, diabetes, asthma, heart and pulmonary diseases, and neurologic, neurodevelopmental, neuromuscular conditions.
(e)Death in children with COVID-19 is rare, and studies show that children aged 5-11 are the least likely of all age groups to require hospitalisation of ICU admission.
(f)Children and adolescents can experience prolonged clinical symptoms known as “long COVID-19”.
(g)Vaccines assist the immune response to protect from serious illness and long-term effects arising from COVID-19.
(h)Vaccinations are not approved in Australia until rigorous testing has occurred and the TGA and ATAGI had established that they were safe.
(i)COVID-19 vaccination in 5-11 year olds commenced in Australia on 10 January 2022. To date the paediatric Pfizer vaccine (“Comirnaty”) is the only vaccine recommended by ATAGI for children aged 5-11 years.
(j)The World Health Organisation’s Strategic Advisory Group of Experts has concluded that the Pfizer vaccine is safe to be used by those aged 5 and above.
(k)Children aged 5-11 years receive a smaller dose of the vaccine than adults and the recommended schedule for vaccination in this age group is 2 doses, 8 weeks apart.
(l)Common side effects include pain at the injection site, fatigue, headache and fever which resolve after a few days.
(m)COVID-19 vaccination provides many indirect benefits to children such as:
(i)Reduction in the likelihood of school closures, disruptions to extra-curricular and social activities resulting from COVID-19 public health measures.
(ii)Reduction of parental absenteeism and isolation of their families, improved mental health and wellbeing of children and their families in allowing them to resume and maintain normal activities. Note that in Australia there was a marked increase in children aged 5-12 years who contacted the Kids Helpline during the first lockdown of the pandemic.
(n)COVID-19 vaccination provides many indirect benefits to close contacts and the community such as reduced community transmission and transmission to close unvaccinated contacts. In addition to reduced COVID-19 hospitalisation, ICU admissions and deaths.
(o)Despite the low risk of adverse side effects, vaccination of children and young people is strongly encouraged by ATAGI.
POSITION OF THE PARTIES
The mother’s case
The mother argues that she has not previously resisted the children being vaccinated but is concerned about the adverse impact of the COVID-19 vaccine. She makes it clear that she does not describe herself as an “anti vaxxer” but says that she is “gravely concerned about the long-term and immediate health risks to the children” if they were to receive the vaccine.
She relies upon the expert opinion of Professor Dr D, who in his expert report has undertaken a risk-benefit analysis of the mRNA vaccine for children and cautions at paragraphs 46-47, 60, 96 and 130 that:
46. 15 years of normal development cannot be compressed into less than one year following normal vaccine development process…Sometimes this is paid upfront by early recognition that some miscalculation on safety of likely efficacy has taken place but sometimes that price may be paid later when a delayed side-effect or other unexpected effect of the vaccine on the pathogen is suddenly appreciated.
47. The problem right now is that no-one knows exactly what the price of the accelerated development of the mRNA vaccine might be...
60. Of course from the gamblers perspective, you might still get lucky and escape any negative consequence of such a decision for early approval, despite not having taken the normal cautious approach.
(As per the original)
96. In my opinion, it is not wise to assume that mRNA vaccine are safe in children without access to more complete and long-term human safety data in children and more research into the potential effects of the delivered mRNA on human cellular function…
130. Overall, I do not believe the ATAGI guidances accurately reflect the true likely benefits and risks of mRNA vaccine use in children.
(As per the original)
He ultimately concludes at paragraph 144 that:
144.I am currently not convinced that the mRNA Covid-19 vaccines meet the requisite requirement of benefit over risk to be recommended for use in healthy children, so this should be a personal choice of the parents and/or the child upon receiving all relevant information so they can make an informed decision, which would then be called informed consent…
The father’s case
The father deposed that the children are in good health and have no underlying health conditions that would preclude them from receiving the vaccine. He relies upon the medical certificate from Dr B to support this.
He deposes that he and his new wife suffer from asthma putting them at higher risk of severe health consequences should they contract COVID-19.
He supports vaccination so that the children do not contribute to the spread of the disease to other, more vulnerable people, such as the elderly grandparents. He argues that, as an employee of a Consulate in Sydney, he is obliged to take appropriate steps to protect the services provided by the Consulate.
He relies upon the expert evidence of Dr C who was cross-examined. Dr C is a General Practitioner who administers COVID-19 vaccinations. He also treats patients for vaccine complications. He gave evidence that:
We have not encountered any significant complications from vaccinations in our practice other than the standard vaccine complications…
SARS-CoV-2 Vaccinations are the most researched vaccinations in human history. Never before have so many researches put so much effort into a vaccine against a new pathogen in such a short time…Of interest for Australia is that due to the Pfizer Vaccination the mRNA technology has been in the limelight by vaccination skeptics, but the technology has been available and known for nearly 20 years.
Vaccine complications are rare and current knowledge suggests that the benefits far outweigh the risks… We also don’t know for sure about all the possible complications of Covid infection, especially in the long run.
…the risks of not vaccinating children is far outweighed by the benefits of vaccination and the risks of not vaccinating children exposes children to the extensive list of complications from the Covid infection which many laypeople may not be aware of.
The father is concerned about the mother’s approach towards this issue and raises the following specific concerns:
(a)That she has not been an active participant in decisions about the children’s health historically, including that she has sought no specific advice from a general practitioner about the appropriateness of the children receiving the COVID-19 vaccine;
(b)That she takes a cynical approach towards COVID-19 as evidenced by the social media posts annexed to his affidavit; and
(c)That she is not vaccinated against COVID-19.
APPROACH
The principles governing the determination of competing parenting applications are set out in Part VII, Family Law Act 1975 (“the Act”). In reality, the sole issue to be determined here is whether the father should be allocated sole parental responsibility for the specific issue of whether the children should receive any vaccinations against the COVID-19 virus.
Section 65DAE of the Act requires the parties to consult on major long-term issues. This case arises in circumstances where the parties have consulted each other but have been unable to reach a decision. While there is no jurisdictional concern about this Court’s ability to make orders for the vaccination of children,[4] there are two potential courses of action arising from the competing applications:
(a)An order restraining the father from facilitating the administration of the COVID-19 vaccine to the children, without the mother’s consent; or
(b)Allocating parental responsibility to one parent on the single issue of COVID-19 vaccinations.
[4]Covington & Covington (2021) 63 Fam LR 173.
The legal representative for the mother suggested that the first course was the more appropriate approach in circumstances where the mother may not withhold her consent in the long-term. It was argued that the mother simply sought more time, so that she might make the decision with the benefit of more longitudinal data, given the infancy of the vaccines.
I am not persuaded by this argument. Section 60CC(l) of the Act obliges me to make an order that would be least likely to lead to the institution of further proceedings. I have therefore decided to adopt the second course, which is to consider allocating parental responsibility to one parent in respect to the question of whether the children should or should not receive the COVID-19 vaccine.
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration.[5] The child’s best interests are determined by a consideration of the objects and principles in s 60B of the Act and the primary and additional considerations in s 60CC.
[5]Family Law Act 1975 (Cth) (“the Act”) ss 60CA, 65AA.
In arriving at my decision I have considered the relevance of the matters set out in s 60CC of the Act. However, in reality determining the central issue before the Court involves determining how parental responsibility should be exercised to promote the welfare of the children,[6] while at the same time preventing them from being exposed to an unacceptable risk of harm.
[6]Ibid s 43(c).
In determining the admissibility or otherwise of material annexed to affidavits and tendered, I am guided by s 69ZT of the Act. I have also had regard to the approach taken to the admission of similar documents by Deputy Chief Justice McClelland in Cranston at [34]-[34].
DETERMINATION
The father is genuine in his belief that the children should be vaccinated in accordance with the relevant government public health advice.
The mother is taking a more cautious approach. She says that she has not disregarded the government advice but at this time opposes the children being vaccinated because the risks outweigh the potential benefits.
In reaching a view it is necessary to undertake a risk-benefit analysis. Before doing so it is important to review the evidence tendered in these proceedings, as it applies to children aged between the ages of 5-11 years.
The benefits of these children receiving the Pfizer vaccine can be summarised as:
(a)Protection against serious illness, hospitalisation and death from contracting, or recontracting COVID-19.
(b)Protection against rare but serious complications of COVID-19, including MIS-C which can result in severe heart disease, and requires treatment by way of hospitalisation and anti-inflammatory agents.
(c)Protection against long COVID-19 which includes symptoms such as ongoing fatigue, body aches, difficulty concentrating and changes to mood.
(d)Reduced risk of the virus spreading to the children’s immediate family including the children’s father, step-mother and grandmother who have underlying conditions which render them more susceptible to severe illness from COVID-19. In addition to reduced likelihood of contracting the virus from, or spreading the virus to, unvaccinated relatives such as the children’s mother.
(e)Reduced susceptibility to contracting COVID-19 and therefore reduced disruption to daily routine due to COVID-19 isolation rules and restrictions. This will minimise disruptions to education, extracurricular and social activities for the children and significantly improve their wellbeing and development.
(f)Improved community immunity which will reduce the rate of new emerging variants, and enable society to return to pre-COVID-19 activities in a low risk environment.
Having considered those benefits it is necessary to consider the potential risks associated with the Pfizer vaccine in children aged 5-11 years. The evidence before the Court was that:
(a)The children are at risk of experiencing common side effects including pain at the injection site, fatigue, headache and fever.
(b)There is low risk of myocarditis and pericarditis following mRNA vaccination. However, the age group most susceptible to this risk is males aged 16-24, majority of whom recover within weeks. Available data suggests that cases of myocarditis/pericarditis following vaccination are mild, responsive to conservative treatment, and are less severe than classical myocarditis or COVID-19.
(c)There is a risk, as identified by Professor Dr D, in assuming that mRNA vaccines are safe in children without access to more complete and long-term human safety data in children and more research into the potential effects of the delivered mRNA on human cellular function.
In respect of those more serious risks Dr C’s evidence was that:
(a)Vaccine complications are rare and current knowledge suggests that the benefits of the vaccine far outweigh the known and unknown risks of contracting COVID-19.
(b)In regards to the “infancy” of mRNA vaccines and the potential unknown effects of the delivered mRNA on human cellular function, Dr C outlined that mRNA vaccine technology has been available and known for nearly 20 years.
CONCLUSIONS
No medication is without side effects. There is clear evidence that the COVID-19 vaccines carry with them a risk of harm. Professor Dr D’s evidence was useful on this issue. However, there is no evidence that conclusively establishes that the risks of harm identified are unacceptable. For these reasons Professor Dr D concludes that the decision is one of ‘informed consent’.
The information provided by the medical practitioners including Professor Dr D, indicated controversy as to whether, as a general proposition, the risks of administering the vaccine to children aged 5-11 are outweighed by the benefits.
Ultimately the Court has concluded that the benefits to these children outweigh the risks, taking into account:
(a)The publicly available advice issued by numerous organisations, including ATAGI and the World Health Organisation; and
(b)The particular circumstances of the children including the advice of their General Practitioner and Dr C.
Whilst I have formed the view that each parent is genuine in the position they have adopted, the evidence presented by the father and the approach he has taken to decisions about the children’s medical treatment to date, satisfy me that he is the most appropriate parent to be allocated sole parental responsibility in respect of the decision as to whether or not the children receive vaccinations for COVID-19.
Accordingly, I will make the orders sought by the father in his proposed Minute of Order. However, having regard to the matters submitted by the Independent Children’s Lawyer, I will require the father to provide notice to the mother before exercising parental responsibility on the issue. This will ensure that she has been informed of his intention and given the opportunity to express any further views she has on the issue before he exercises that decision.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 14 April 2022
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