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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rusena & Rusena

Details

AGLC: Rusena & Rusena [2022] FedCFamC2F 472
Case: [2022] FedCFamC2F 472
Decision Date

CaseChat Overview and Summary

This case involves a dispute between the parents of two children, X and Y, concerning the issue of whether the children should receive vaccinations against COVID-19. The mother sought a restraint on the father from facilitating the children's vaccination without her consent, while the father sought sole parental responsibility for the issue of the children's vaccinations. The matter was heard and determined by Judge Beckhouse of the Federal Circuit and Family Court of Australia (Division 2).

The central legal issue before the court was whether to allocate sole parental responsibility to the father concerning the children receiving COVID-19 vaccinations or to make an order restraining the parties from facilitating the children being vaccinated. The court considered the evidence presented by both parties, including expert evidence on the risks and benefits of vaccinating children aged 5-11.

In determining the matter, the court considered the relevant provisions of the Family Law Act 1975 (Cth), as well as public health advice from institutions such as the Australian Technical Advisory Group on Immunisation (ATAGI) and the World Health Organisation (WHO). The court also considered the specific circumstances of the children, including medical advice provided by their General Practitioner and expert evidence from a medical practitioner.

The court concluded that the benefits of vaccinating the children outweighed the risks, and that the father was the more appropriate parent to be allocated sole parental responsibility for the decision regarding the children's COVID-19 vaccinations. The court ordered that the father would have sole parental responsibility for the issue, but must provide the mother with seven days' notice of his intention to have the children vaccinated, allowing her 72 hours to express any views she may have.

Orders