Saracuna & Siddele
[2022] FedCFamC2F 186
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saracuna & Siddele [2022] FedCFamC2F 186
File number(s): SYC 7132 of 2018 Judgment of: JUDGE M NEVILLE Date of judgment: 21 February 2022 Catchwords: FAMILY LAW – Parenting – interlocutory hearing in relation to Application in a Proceeding seeking to prevent or delay vaccination of seven year old child against COVID-19 – where interim injunction against vaccination issued by the Supreme Court of New South Wales – application for stay of Application in a Proceeding pending determination of Federal Court judicial review proceedings concerning provisional approval of vaccine for five to 11 year old age group – application for stay refused.
FAMILY LAW – Parenting – interlocutory hearing –
application for removal of Application in a Proceeding from National COVID-19 List – application refused.FAMILY LAW – Parenting – interlocutory hearing – application to adduce additional adversarial expert evidence in Application in a Proceeding – application dismissed.
Legislation: Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth) s 39B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.06, 1.11, 7.10, 7.11
Federal Circuit and Family Court of Australia, Family Law Case Management – Central Practice Direction, 1 September 2021
Federal Circuit and Family Court of Australia, National COVID-19 List (FAM-COVID) Family Law Practice Direction, 1 September 2021
Federal Court Rules 2011 (Cth) r 16.32
Cases cited: Brown v Brown [2022] NSWSC 16 Division: Division 2 Family Law Number of paragraphs: 121 Date of hearing: 17 February 2022 Place: Sydney Solicitor for the Applicant: Ms Chiang of King & York Lawyers The Respondent: Self-represented Independent Children’s Lawyer: Mr MacDiarmid of Mark MacDiarmid Family Law Specialist ORDERS
SYC 7132 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SARACUNA
Applicant
AND: MS SIDDELE
Respondent
ORDER MADE BY:
JUDGE M NEVILLE
DATE OF ORDER:
21 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The mother’s application for a stay of proceedings pending determination of proceedings in the Federal Court of Australia as between the Australian Vaccination Network & the Department of Health is dismissed.
2.The hearing date of 21 March 2022 is confirmed for the hearing of the Application in a Proceeding filed by the mother on 17 January 2022.
3.The mother’s application for leave to adduce expert evidence from up to three expert witnesses is refused.
4.The court confirms the direction made by the Judicial Registrar on 24 January 2022 that each party has leave to adduce evidence from one adversarial expert at the hearing.
5.The court extends the time for the mother to file and serve any expert evidence for which leave has been granted to 14 March 2022.
6.The mother’s application to remove the Application in a Proceeding filed by her on 17 January 2022 from the COVID-19 list is refused.
7.By 5.00pm on 21 February 2022 the father through his legal representative is to provide to the mother the names and contact details of each of the medial practitioners upon whom X has attended whilst she has been living with the father since April 2020.
8.The matter be adjourned to 16 March 2022 at 9:30am for compliance check.
9.Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice by contacting my Associate by email.
THE COURT NOTES THAT:
A.Cognizant of the significant demand on the resources of Legal Aid New South Wales, the Court would be assisted if Legal Aid NSW could take any steps available to it to expedite or prioritise the transfer of the mother’s grant of Legal Aid.
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 the pseudonym Saracuna & Siddele has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE M NEVILLE:
These reasons for judgment were delivered orally and have been corrected from the transcript.
INTRODUCTION
X, aged seven years, is the child of Ms Siddele (“the mother”) and Mr Saracuna (“the father”). The parents are presently in dispute about whether she should receive vaccination against COVID-19.
By interim orders made in these proceedings, X’s father presently holds sole parental responsibility and he intends to have her vaccinated against COVID-19. On 17 January 2022, the mother filed an Application in a Proceeding seeking relief which would have the effect of, amongst other things, preventing or at least delaying the vaccination occurring.
On 24 January 2022, a Judicial Registrar made case management directions and fixed the mother’s Application in a Proceeding for hearing on 17 February 2022 before me. When the matter was listed for compliance check before the Judicial Registrar on 14 February 2022, the hearing date was adjourned to 21 March 2022 by consent and on the mother’s application. A dispute about calling expert evidence was, however, raised before the Judicial Registrar and so the matter remained listed before me on 17 February 2022 to deal with that dispute.
On the morning of 17 February 2022, the mother forwarded to my Chambers a proposed minute of order seeking relief in relation to the time at which the hearing of her Application in a Proceeding should occur; the evidence she may adduce at that hearing; the removal of the matter from the Court’s National COVID-19 List; and the provision of X’s medical records to the mother.
The relief sought by the mother was – for the most part – opposed by the father and the Independent Children’s Lawyer and the court was required to determine:
(a)Whether the Application in a Proceeding filed by the mother on 17 January 2022 should be stayed pending final determination of proceedings filed in the Federal Court of Australia being Australian Vaccination-Risks Network v Secretary, Department of Health, with file number NSD52/2022; and
(b)In the event that a stay is not granted:
(i)Whether the Application in a Proceeding should be removed from the National COVID-19 List and instead be case managed with the standard level of priority it would be given had it been filed in the substantive proceedings presently before me; and
(ii)Whether the mother should be given leave to seek a further adjournment of the matter should her grant of Legal Aid be significantly delayed and her lawyer, once appointed, requires time to prepare her case; and
(iii)Whether leave should be granted to each party to call evidence from up to three adversarial expert witnesses.
The mother’s application to be provided with a copy of X’s medical records was largely resolved throughout the course of the interlocutory hearing.
BACKGROUND
On 31 January 2020, after a final hearing that spanned four days, the court made parenting orders concerning X. Relevantly, and in broad terms, the final orders included the following provisions:
(a)The mother to have sole parental responsibility for X, subject to various conditions;
(b)The father have X vaccinated by Dr C or another medical practitioner nominated by Dr C as soon as practicable and, thereafter, the father follow Dr C’s recommendations for ongoing vaccination from time to time; and
(c)That X live with the mother and spend substantial and significant time with the father.
On 23 March 2020, the father filed a contravention application alleging a number of contraventions of the final orders by the mother, including but not limited to the mother having prevented the father from having X vaccinated.
For reasons not presently relevant, interim orders were made on 2 April 2020 suspending those of the final orders that dealt with parental responsibility, vaccination, live with and spend time with arrangements and schooling. The orders made on 2 April 2020 otherwise provided:
(a)That a recovery order issue for X;
(b)That the father have sole parental responsibility for X;
(c)That X live with the father; and
(d)That X spend time with the mother under such supervision as may be agreed between the parents and failing agreement as determined by the father.
The interim orders of 2 April 2020 were made in the absence of the mother, although she had been present in court earlier on that date. They were made on the oral application of the father – supported by the Independent Children’s Lawyer – in circumstances where I considered there was some urgency on that occasion.
After interim hearing on 10 June 2020, further orders were made which provided relevantly, and in broad terms:
(a)That the suspension of the final orders dealing with parental responsibility, vaccination, live with and spend time with arrangements and schooling continue;
(b)The father have sole parental responsibility for X;
(c)That X live with the father and spend time with the mother, supervised for three hours on one occasion each fortnight; and
(d)That the mother disclose to the father’s lawyer and the Independent Children’s Lawyer the name and contact details of any medical practitioner who assessed X and, or, placed her name on the Contraindications List with the Australian Immunisation Register and the father otherwise have leave to provide to such practitioners a copy of the judgment and orders of 31 January 2020, as well as any report prepared by Dr C in relation to X.
On 25 June 2020, the court made further interim orders to facilitate the parties’ engagement with a supervising agency and otherwise to regularise the proceedings – directing the father to file an Initiating Application, Notice of Risk and affidavit and the mother to file a Response, Notice of Risk and affidavit. Each party complied with those directions.
Since that time, the court has heard and determined further interim applications dealing predominantly with the issue of time between X and her mother. The final orders relating to parental responsibility, vaccination, live with and time arrangements and education remain suspended. The interim orders of 10 June 2020, which provide that the father have sole parental responsibility for X and that she live with him have not been disturbed.
In early January 2022, the mother became aware that the father intended to have X vaccinated against COVID-19. On 12 January 2022, whilst X was spending time with the mother pursuant to parenting orders of this court, the mother made an urgent application to the Supreme Court of New South Wales in its parens patriae jurisdiction, seeking to restrain the father from having X vaccinated.
By reference to the judgment of Kunc J on the mother’s application to the Supreme Court (see Brown v Brown [2022] NSWSC 16), the following matters emerge:
(a)The mother made contact with his Honour’s Chambers on 12 January 2022. She was informed that where parenting proceedings were already on foot, she should contact the Family Court (which I infer his Honour intended to be a reference to the Federal Circuit and Family Court of Australia), to ascertain how the matter could be urgently resolved in the family law jurisdiction.
(b)The mother made further contact with his Honour’s Chambers on 13 January 2022 and informed his Honour’s staff that as a result of her enquiries with the Federal Circuit and Family Court of Australia, she did not believe it would be able to deal with her application with the necessary urgency.
(c)His Honour listed the matter on 13 January 2022. The mother was not legally represented. His Honour granted leave to the mother to file a Summons and affidavit and directed that those documents be served upon the father to his email address and that the mother otherwise telephone or text him to inform him of the commencement of the proceedings and the service of process by 5 pm that evening. The Summons sought injunctive relief against the father to prevent him from permitting a COVID-19 vaccination to be administered to X.
(d)The matter returned before his Honour on the afternoon of 14 January 2022. The mother informed his Honour that she had served the Summons and affidavit on the father in accordance with those directions and had attempted to contact the father that morning by telephone. There was no appearance by or on behalf of the father and his Honour determined the matter ex parte.
(e)Throughout the course of the hearing and on inquiry by his Honour, the mother gave an undertaking that she would file an application in the COVID-19 specialist list of the Federal Circuit and Family Court of Australia no later than Monday 17 January 2022.
I pause to observe that there appears to be a factual dispute between the parents as to whether the mother did in fact bring the Supreme Court proceedings to the notice of the father in accordance with his Honour’s directions, although I do not consider that dispute to be relevant for present purposes.
It is clear from his Honour’s judgment that the mother contended her Supreme Court application was urgent because the father planned to have X vaccinated; X was due to return to the father’s care on the afternoon of 14 January 2022; and her enquiries of this court led her to the view that the application would not or could not have been considered with the requisite urgency.
His Honour did not grant injunctive relief on a final basis, however granted interim injunctive relief so as to preserve the mother’s right to commence proceedings in the Federal Circuit and Family Court of Australia. Although I do not have a formal copy of the orders made by his Honour on 14 January 2022 it appears that orders were made restraining the father by injunction from causing or permitting any COVID-19 vaccine to be administered to X until the determination of the mother’s application to this court.
On 17 January 2022 and consistent with the undertaking she gave to the Supreme Court, the mother filed an Application in a Proceeding in the National COVID-19 List seeking relief to the following effect:
(a)That any COVID-19 vaccination proposed for X be treated as a major medical procedure pursuant to Rule 1.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and, or in the alternative
(b)That the decision as to whether any COVID-19 vaccine is administered to X be deferred for a reasonable period of no less than six months to allow the present COVID-19 situation to stabilise and to allow sufficient scientific research to be accumulated in relation to the long-term benefits and risks of the vaccine.
(c)That the parents have equal shared parental responsibility for long-term and major medical procedures.
(d)That the parents have equal shared parental responsibility for X in all other aspects.
The father filed a Response to the Application in a Proceeding on 21 January 2022 seeking orders to the following effect:
(a)That the mother take all steps to discharge the injunction made by the Supreme Court of New South Wales;
(b)That the mother be restrained by injunction from filing any parenting proceedings pertaining to X in any court in the Commonwealth of Australia other than the Federal Circuit and Family Court of Australia;
(c)That the father have liberty to provide a copy of the orders to the Supreme Court of New South Wales; and
(d)That the mother’s Application in a Proceeding filed 17 January 2022 be dismissed.
In accordance with the protocols set out in the court’s National COVID-19 List (FAM-COVID) Family Law Practice Direction, the mother’s Application in a Proceeding was listed before a Judicial Registrar on 24 January 2022. The Judicial Registrar made orders and directions, relevantly, as follows:
(a)The Application in a Proceeding for be listed hearing before me on 17 February 2022 with a compliance check to be conducted by the Judicial Registrar on 14 February 2022;
(b)Leave be granted to each party to adduce expert evidence from one expert other than a single expert with respect to the issue of the vaccination of X; and
(c)Leave be granted to each party to cross-examine the other party’s adversarial witness for a maximum period of one hour.
At the Judicial Registrar’s compliance check on 14 February 2022, the “interim hearing” date was adjourned by consent and on the mother’s application to 21 March 2022. I pause to observe that whilst the procedural orders make reference to an “interim hearing”, I consider having regard to the nature of the relief sought in the alternative, that it is not, in fact, an interim hearing matter. In any event, the Judicial Registrar noted relevantly that:
(a)The mother had not complied with orders for the service of adversarial expert evidence;
(b)The mother sought that leave be granted to all parties to adduce evidence from three adversarial experts; and
(c)The mother sought the matter be removed from the COVID-19 List and otherwise that X’s medical information be provided to the mother.
The Judicial Registrar confirmed that the matter remained listed before me for mention on 17 February 2022 for case management of those discrete issues.
On the morning of 17 February 2022 the mother forwarded to my Associate via email a number of documents including, relevantly, a minute of orders sought and an outline of submissions. All parties confirmed that they were able to deal with the mother’s application subject to the matter being stood down to allow the Independent Children’s Lawyer to attend another litigation commitment. The matter was stood down and heard later in the day.
The minute of order that was proposed by the mother on 17 February 2022 sought relief as follows:
(a)That the Application in a Proceeding be stayed pending determination of the Federal Court proceedings between the Australian Vaccination Network and the Secretary, Department of Health;
(b)In the alternative to the relief at (a), the Application in a Proceeding be removed from the National COVID-19 List and instead be processed with a standard level of priority; and
(c)In the event Legal Aid NSW continued to be significantly delayed, that the mother have leave to seek a further adjournment of the Application in a Proceeding to provide sufficient time for preparation of her matter; and
(d)That each of the parents be granted leave to adduce evidence from up to three adversarial witnesses.
The father and the Independent Children’s Lawyer opposed the application for a stay as well as the applications to remove the matter from the COVID-19 list; for the mother to have the opportunity to make a further application for adjournment; and to adduce expert evidence from up to three witnesses. The provision of X’s medical records was resolved throughout the course of the interlocutory hearing as described later in these reasons.
DOCUMENTS RELIED UPON
The mother relied upon documents as follows:
(a)A minute of order proposed which was admitted and marked exhibit A on the application;
(b)A written document entitled Points of Submission; and
(c)Her affidavits made on 14 February 2022 (the annexure to which was provided by the mother to my Associate in Chambers by email on 18 February 2022); and on 17 February 2022.
The father relied upon his affidavit affirmed and filed on 21 January 2022.
The orders made by the Judicial Registrar on both 24 January 2022 and 14 February 2022 included a notation pursuant to section 144 of the Evidence Act 1995 (Cth) that the court may take judicial notice of published advice issued by public health authorities including the Australian Technical Advisory Group on Immunisation also known as ATAGI, on recommendations on the use of the paediatric Pfizer COVID-19 vaccine in children aged five to 11 years in Australia (“the ATAGI Recommendations”). In addition to the documents relied on by each of the parties identified above, I read and had regard to the ATAGI Recommendations insofar as they touched on the procedural issues for determination on this application.
Where the parties were in dispute as to whether the matter should remain in or be removed from the National COVID-19 List, I also read and had regard to the COVID-19 List Practice Direction that was most recently issued by the Chief Justice on 1 September 2021.
For reasons that will be later be discussed more fully, with the consent of all parties and at my request the Registrar of this court obtained from the Registrar of the Federal Court of Australia a copy of the originating application in the Federal Court proceedings referred to in the mother’s application, being Australian Vaccination Network Incorporated v Department of Health, (NSD52/2022) filed 2 February 2022. I read and have had regard to that document in determining this application.
APPLICABLE LEGAL PRINCIPLES
In terms of the application for a stay of proceedings, no party outlined the principles applicable on such an application. It was not, however, controversial that the court has the power to stay proceedings on the terms sought by the mother. That power is found at rule 1.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Irrespective of the reason why a stay of proceedings is sought, the onus falls to the party seeking the stay to satisfy the court that there is a proper reason for it to be granted.
In terms of adducing evidence from an adversarial expert, rule 7.10(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 requires that a party to proceedings must seek leave to adduce expert evidence, other than evidence given or to be given by a single expert witness.
I pause to observe that having regard to the scope of the dispute between the father and the mother in these proceedings, it appears unlikely that the parties would be able to identify and agree upon an appropriate Single Expert witness.
In any event, where leave is required, rule 7.11 sets out the procedural requirements for the making of such an application and the matters the court may take into consideration when determining that application as follows:
7.11 Application for permission for expert witness
(1) A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Proceeding.
(2) The affidavit filed with the application must state the following:
(a) whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b) the name of the expert witness;
(c) the issue about which the expert witness’s evidence is to be given;
(d) the reason the expert evidence is necessary in relation to that issue;
(e) the field in which the expert witness is expert;
(f) the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue;
(g) whether there is any previous connection between the expert witness and the party.
(3) When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account the following:
(a) the purpose of this Part (see rule 7.02);
(b) the impact of the appointment of an expert witness on the costs of the proceeding;
(c) the likelihood of the appointment expediting or delaying the proceeding;
(d) the complexity of the issues in the proceeding;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only;
(f) whether the expert witness has specialised knowledge, based on the person’s training, study or experience:
(i) relevant to the issue on which evidence is to be given; and
(ii) appropriate to the value, complexity and importance of the proceeding.
(4) If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.
Note: Despite an order under this rule, a party is not entitled to adduce evidence from an expert witness if the expert’s report has not been disclosed or a copy has not been given to the other party (see rule 7.17).
THE PARTIES’ COMPETING APPLICATIONS
The Mother’s Case
The mother, clearly concerned for X’s welfare if X receives the COVID-19 vaccination at least at the present time and perhaps if at all, asks the court to stay the hearing of her Application in a Proceeding until the Federal Court determines the application before it between the Australian Vaccination Network and the Secretary of the Department of Health. The mother contends that those proceedings which commenced on or around 2 February 2022 may result in the suspension or cancellation of the provisional approval of the mRNA COVID- 19 vaccination for use in children aged between five and 11 years in Australia.
She contends that if that is the outcome of those proceedings, then the COVID-19 vaccination will not be available in Australia to administer to X. Where the COVID-19 vaccine is newly-developed and not well-established, the mother contends that any decision about vaccination should await the outcome of those Federal Court proceedings lest X be exposed to a vaccine that is, contrary to the current ATAGI recommendations, ultimately determined to be unsafe for children in the five to 11 year age group.
In the event that the determination of her Application in a Proceeding is not stayed, the mother seeks leave to adduce expert evidence from three adversarial witnesses. She contends that each is necessary to provide to the court the expert evidence it will need to make a determination. Where at least one of her proposed experts is, she contends, unlikely to be able to prepare a report by the hearing date and where she is awaiting the transfer of her grant of Legal Aid to a new legal practitioner, she considers that it is possible that she may not be ready to proceed on the hearing date and she wishes to preserve her ability to make a further application for adjournment.
The mother contends that the determination of her Application in a Proceeding is not urgent. She further contends that the application should be removed from the National COVID-19 List and otherwise case managed in accordance with the standard level of priority given to those applications not considered to be urgent.
The Father’s Case
The father contends that the mother’s application should be dismissed. He contends that it is in X’s best interests that the mother’s Application in a Proceeding is determined in a timely fashion so that if it is dismissed, X may receive her vaccination.
It is the father’s position that where these proceedings relate to vaccination of X specifically, rather than vaccination of a class of children generally, the Federal Court proceedings have no relevance to the Application in a Proceeding. He contends that at present the vaccine has provisional approval for delivery to children in the five to 11 year age group and if the Federal Court determines that the current ATAGI Recommendations are inappropriate or that the provisional approval should in some way be changed, he will act in accordance with the law and the advice of government health authorities.
Insofar as the mother contends that there is now no urgency to the application, the father submits that that is contrary to the representations the mother made to the Supreme Court of New South Wales and that the mother cannot, in effect, “have it both ways”.
The father contends that the mother has nominated Ms L, a medical practitioner, as one of her adversarial experts. He contends that Ms L can reasonably give the evidence that the mother otherwise intends to call from Dr J, who he contends is not a practising medical practitioner; and Ms K, who is a professional.
He contends that the leave to adduce expert evidence that has already been granted by the Judicial Registrar is sufficient to enable the mother to call evidence from Ms L. To permit the mother to adduce evidence from a further two adversarial experts will, he contends, only cause delay in the preparation for and hearing of the Application in a Proceeding.
The father contends that where the mother provided an undertaking to the Supreme Court to file an application in this court’s National COVID-19 List and where the injunction was granted by the Supreme Court on an understanding that the specialist list exists and could deal with the matter urgently, the mother should not now be permitted to seek the application be removed from the specialist list. But, in any event, given the way the matter has been case managed thus far, as well as the fact that the Application in a Proceeding has been given a hearing date, the father considers there is little practical difference as to whether the matter remains in or is removed from the specialist list.
The father contends that the Application in a Proceeding should be heard and determined in the usual course and opposes the mother being granted leave to bring a further application for adjournment. He contends that any delay in the transfer of the mother’s grant of Legal Aid is a consequence of her own decisions about legal representation and he observes that the mother was privately legally represented in the latter part of 2021 and the early part of 2022.
The Independent Children’s Lawyer’s Position
The Independent Children’s Lawyer had the same position as the father and adopted, in large part, the submissions made on the father’s behalf.
In addition to those matters outlined above, the Independent Children’s Lawyer contended that this court cannot know or predict when the Federal Court proceedings will conclude, nor whether there will be proceedings commenced by other litigants about the same subject matter in that court or another.
The Independent Children’s Lawyer contended that as matters presently stand, the ATAGI Recommendations give conditional approval for the administration of the COVID-19 vaccine to children in the 5 to 11 years age group and that with the benefit of expert evidence to be adduced by each party, the court will have sufficient evidence to determine the issue of vaccination of X in contrast to vaccination of a class of children generally.
DISCUSSION
The application for stay
As noted, although no party made any submission on the legal principles applicable to an application to stay proceedings or the matters to which I should have regard when determining the application, when considering the submissions made by each of the parties, it appears that they consider the following matters to be relevant to the court’s exercise of discretion on the mother’s application for a stay:
(a)Whether the outcome of the Federal Court proceedings is likely to impact on the decision of this court and, or, whether it may impact on this court’s determination of the mother’s Application in a Proceeding; and
(b)The length of time it will take for the Federal Court to hear and determine that application and the impact that that delay may have on X’s best interests.
The subject matter of the Federal Court proceedings
The mother contends that the outcome of the Federal Court proceedings may mean that the provisional approval of the Pfizer vaccine for children in the 5 to 11 year age group is suspended or cancelled such that the vaccine will not, in due course, be available in Australia for administration to X.
During the course of the interlocutory hearing, I enquired of the mother whether she was a party to the Federal Court proceedings and, if not, how she became aware of the issues being litigated in those proceedings. The mother informed me that she was not a party to those proceedings but was aware of them because they involved an application for judicial review and were open court proceedings. On further enquiry, and as I understood her submissions, the mother herself had not attended any court event in the Federal Court proceedings and indeed, I am presently unaware as to whether any court event has occurred at all. The mother had become aware of those proceedings from social media posts made by the lawyers for the Applicant in those proceedings. None of those social media posts were in evidence. The mother did not have a copy of the originating application in those proceedings.
When I was considering the matter in Chambers I found it difficult to feel confident in my understanding of the subject matter of the Federal Court litigation on the basis of the mother’s description of a social media post about those proceedings made by a person who may or may not have been involved in those proceedings. I considered it was important to have an accurate understanding of the subject matter of the Federal Court litigation. Observing that the mother is presently a litigant in person and with the consent of all parties, I requested through the Registrars of this Court and the Federal Court a copy of the originating application in the Federal Court proceedings.
I was provided with a copy of the origination application for relief under section 39B of the Judiciary Act 1903 (Cth) and I reviewed that document. The Federal Court proceedings relate to:
(a)Judicial review and/or the exercise of constitutional writs in relation to the provision of approval of registration on the Australian Register of Therapeutic Goods of:
(i)the Pfizer vaccine for individuals aged 16 years and over and, subsequently, for individuals aged 12 years and over; and
(ii)the AstraZeneca vaccine; and
(iii)the Moderna vaccine;
(b)Judicial review of the administrative decision by the Secretary of the Department of Health to grant provisional approval for the Comirnaty COVID-19 vaccine, also known as Pfizer, for use amongst children aged five to 11 years commencing 10 January 2022.
In relation to the application for judicial review of the provisional use of Pfizer amongst children aged five to 11 years, the Applicant before the Federal Court contends, in broad terms:
(a)That the Secretary of the Department of Health failed to comply with various provisions of the Therapeutic Goods Act 1989 and the Therapeutic Goods Regulations 1990 requiring the Secretary to determine whether an indication of the vaccine was the treatment, prevention or diagnosis of a life-threatening or seriously debilitating condition for children aged five to 11 years. That determination not having been made, it is contended the Secretary’s powers to register the vaccine were not enlivened, rendering the decision void;
(b)By reference to statistical information within the decision the subject of the review application, the Secretary made a number of findings that were internally contradictory and illogical such that the decision was legally unreasonable;
(c)Further, or in the alternative, the Secretary failed to consider the Omicron variant of COVID-19 emerging at the time of the decision, including whether it posed a life-threatening or seriously debilitating condition for children aged five to 11 years, thereby rendering the decision void;
(d)The Secretary applied the incorrect statutory test when determining that the efficacy assessment was a secondary objective, thereby rendering the decision void;
(e)The Secretary relied on clinical trial data that did not include the proposed formulation of the vaccine under consideration, thereby preventing the lawful assessment of the safety and efficacy of the proposed vaccine for children in the relevant age group, and thereby amounting to a constructive failure to exercise jurisdiction and/or a jurisdictional error;
(f)By accepting that most children infected with the SARS-CoV-2 are asymptomatic or where symptoms occur they are usually mild, it was illogical and internally inconsistent for the Secretary to then reason that, in the absence of highly effective prophylactic or therapeutic medications, active immunisation through vaccinisation represents the best means of preventing hospitalisation and deaths at an individual level and controlling the pandemic at a societal level, thus making the decision legally unreasonable;
(g)The Secretary relied on data to the exclusion of data available dating back one year from the related vaccines and international data available, thereby invalidating the decision by failing to take into account relevant considerations the Secretary was required to take into account;
(h)The secretary’s conclusions that all quality and pharmaceutical chemistry conditions have been adequately satisfied and that there are no outstanding reasons to prevent approval from a quality and pharmaceutical chemistry perspective were not supported by lawful reasons set out by the Secretary, rendering the decision invalid;
(i)The Secretary considered Pfizer’s submissions regarding adverse events and serious adverse events but failed to have regard to other available Australian and/or international data rendering the decision invalid;
(j)The Secretary failed to give reasons or lawful reasons supporting the determination that there is a favourable benefit-risk balance for the use of the vaccination in the five to 11 year age population and that the submitted data has satisfied the regulatory requirement for the extension of provisional registration to individuals within that age group, thereby rendering the decision unreasonable and invalid;
(k)It was legally unreasonable for the Secretary to approve the vaccine where the Secretary had determined there had been rare cases of myocarditis and pericarditis following mRNA vaccines reported in adolescent and young adult population; and
(l)There were significant limitations in the data provided to the Secretary that were listed in the reasons for decision and it was therefore unreasonable for the Secretary to approve the vaccine, rendering the decision invalid.
If the judicial review case is successful – in whole or in part – the Applicant in those proceedings seeks an order an order quashing or setting aside the Secretary’s decision to provisionally approve the administration of Pfizer to children in the 5 to 11 year age group in Australia.
Having regard to these matters, I am satisfied that one outcome of the Federal Court proceedings may be that the provisional approval for the use of Pfizer in the 5 to 11 year age group is quashed or set aside.
The relief sought in the judicial review proceedings, if granted, does not appear to preclude the Secretary from lawfully re-exercising statutory powers and subsequently granting provisional approval for the use of the vaccine in the 5 to 11 year age group should the decision be looked at again.
I am also satisfied that one outcome of the Federal Court proceedings may be that the provisional approval presently in place is not disturbed.
When a decision may be expected in the Federal Court proceedings
The Federal Court proceedings were commenced on 2 February 2022. Rule 16.32 of the Federal Court Rules 2011 (Cth) provides that a defence is to be served and filed within 28 days of service of the originating application. I am unaware as to whether a defence has, at the present time, been filed. I observe that if the originating application was served on the day it was filed, the time in which the defence is to be filed has not yet passed.
I am unaware as to whether the matter has been listed before a judicial officer or a registrar in the Federal Court. The originating application does not specify a date and time for hearing. The Applicant in those proceedings has sought expedition of the proceedings. Whether or not expedition will be granted is a matter I cannot determine. Nor can I determine when the proceedings will be heard and when they will be determined even if they are expedited.
As set out earlier, the originating application seeks relief in relation to a number of administrative decisions, not just the decision to grant provisional approval for the use of Pfizer for children in the five to 11 year age group. The contentions made by the Applicant in the Federal Court proceedings raise broad-ranging questions involving, in part, the apparent analysis of or consideration of clinical trial data available both in Australia and internationally.
It appears that there will be some complexity to the proceedings, both procedurally and in terms of the evidence that may be adduced.
These matters lead me to the conclusion that the proceedings in the Federal Court are unlikely to be determined within a brief timeframe, although I cannot predict how long it is that they will take. Where I am unable to determine when the Federal Court proceedings may conclude, the best I can do is to observe that whilst expedition has been sought, the proceedings are still in their infancy and for the reasons I have already outlined, it appears unlikely they will conclude in a brief period of time.
Determination on the application for stay
There is, at present, provisional approval of the administration of the Pfizer vaccine to children in Australia in the five to 11 year age group. Although that approval is presently under challenge in the Federal Court, at this point in time, the decision has not been found to be wanting. I consider that it remains a valid decision.
X, now aged seven years, attends school and otherwise moves about in the community. It is possible that she will be exposed to a person or persons who have COVID-19 and, like any other community member, she is at risk of contracting COVID-19.
Should X contract COVID-19, her health will likely be affected although it is not possible within the ambit of the present dispute to determine the nature and extent of any risk to her health.
If she contracts COVID-19, irrespective of whether it has a mild, moderate, or significant effect on her health, she will also bear the risk of passing the virus on to members of her family and to other people with whom she may come into contact. Even if X were to be kept in strict isolation following any diagnosis, the risk of transmission to others can arise prior to the diagnosis being made.
The father is clearly concerned for X in these circumstances and seeks to have her vaccinated in the exercise of sole parental responsibility.
It is clear from the ATAGI Recommendations that there are risks associated with the administration of the vaccine to children in the 5 to 11 year age group. The mother is clearly concerned that if X receives the vaccine, there is a risk of adverse health consequences for X given that the vaccine is new and, in the mother’s view, not properly assessed or developed. She is also clearly concerned that X’s specific physical health would place her at risk of an adverse outcome should she receive the vaccination.
The mother seeks to have the issue of vaccination treated as a major medical procedure such that the authorisation of vaccination must be determined by the Court rather than by a parent in the exercise of parental responsibility. In the alternative, she seeks that any vaccination be delayed for a period of at least six months to allow the dynamic COVID-19 situation to stabilise and for further data about the effects of the vaccine to be gathered.
Leave has been granted to each party to adduce expert evidence on the issue of the administration of the vaccine to X. Cross-examination of each party’s expert has been allowed. This will enable each party to call evidence to support their respective concerns and to test the evidence called by the other party.
To the extent that the mother contends that there may be research available that has not been considered in the ATAGI Recommendations or by the Department of Health when granting provisional approval, it is open to the mother to call an expert that can speak to that research, and that research can be considered in the context of vaccination to X specifically rather than children aged in the 5 to 11 year age group more generally.
In the event that orders are made on the mother’s Application in a Proceeding that would have the result of X being vaccinated, then the mother seeks to defer vaccination for at least six months. If she is successful on that application and if, during any deferral period, the Federal Court determines the application before it in favour of the Applicant in those proceedings, then the vaccine will likely be unavailable for administration to X in any event. If, within the deferral period, the Federal Court has not already determined those proceedings but information is to hand that a decision is imminent, then the mother may bring a further Application in a Proceeding seeking to extend any deferral period.
There are risks to X’s physical health as well as risks to members of her family and others in the general community in the event that she contracts COVID-19. By reference to the ATAGI Recommendations, there are also risks associated with the administration of the vaccine.
If the mother’s Application in a Proceeding is stayed for an indefinite but likely significant period, X will continue to be exposed to the risks arising from COVID-19 for that indefinite period in circumstances where vaccination may ameliorate or mitigate those risks.
To the extent that there are risks to X from receiving vaccination against COVID-19, the case management directions already made will allow those risks to be considered by reference to expert evidence called by the parties as it relates specifically to X.
Having regard to these matters, I therefore consider that the balance falls in favour of hearing and determining the mother’s Application in a Proceeding, and that the application for a stay should be refused.
The application for removal from the National COVID-19 List
In terms of where the matter progresses from here, as set out earlier in these reasons the mother gave an undertaking to the Supreme Court of New South Wales that she would file an application in this Court’s National COVID-19 List. She complied with that undertaking. In accordance with the protocols set out in the National COVID-19 List Family Law Practice Direction, the matter was listed before a Judicial Registrar within seven days of the date of filing and was then referred to me for further case management and hearing.
It is clear from the practice direction that disputes about a child being vaccinated against COVID-19 fall within the ambit of applications that may be considered suitable for acceptance into the National COVID-19 List. Although the mother gave affidavit evidence and submitted that she has been informed by other parents that they have made applications not materially different to this one which have not been put into the National COVID-19 List, when pressed on this, she informed the Court that it was one parent, or at least one parent, who had given her this information.
Where I do not know who provided that information to the mother nor whether that person or those persons’ application(s) were, in fact, not materially different to this one, I cannot assess these contentions at all and I am not assisted by the mother’s evidence or her submissions in this regard.
It is also clear from the practice direction that the purpose of the National COVID-19 List is to assess, triage and prioritise the listing of applications filed as a direct result of, or in significant connection to COVID-19. Once an application is accepted into the National COVID-19 List, it is then case managed having regard to the needs of the particular case and is listed with such urgency as a registrar or judge may consider appropriate.
The mother contends that there is now no urgency attaching to her application and that it is reasonable to slow down the hearing and determination of it. It is clear from her affidavit of 14 February 2022, as well as her oral submissions, that for as long as the injunction issued by the Supreme Court of New South Wales remains in place, the mother’s goal of delaying and, or, preventing vaccination is achieved.
The father, however, wishes to proceed to have X vaccinated. He presently has an interim order for sole parental responsibility in his favour that, in the ordinary course and unless a Court determines otherwise, would allow him to take the decision to have X vaccinated. From his perspective, there is some impetus to the application being heard and determined. The Independent Children’s Lawyer supports that view.
No party was able to identify any practical difference or benefit to removing the matter from the National COVID-19 List now that it has been fixed for hearing and further case management rests with me.
The mother contended that removal of the application from the COVID-19 list would have the result that the application would be processed, heard and determined in accordance with the same priority that applies to a standard Application in a Proceeding. In that regard, I observe that the mother’s application was listed for interim hearing five weeks after it was filed. On her application, and with the consent of all parties, it was adjourned for a further five weeks. Although the first court event, the directions hearing on 24 January 2022, was listed with greater priority than is otherwise provided for under the court’s Family Law Case Management – Central Practice Direction, now that the hearing date has been adjourned, the matter appears to be progressing with no greater or lesser priority than other matters commenced by an Application in a Proceeding that have not been filed in the National COVID-19 list.
Where it is clear that the Supreme Court injunction was, in part, granted on the understanding that the matter would be listed in the National COVID-19 List, and where there now appears to be no practical difference arising from the matter continuing in or being removed from that list, the mother’s application for the removal of the application in proceedings from the National COVID-19 List should, in my view, be refused.
The application to adduce expert evidence from up to three witnesses
The mother seeks to adduce expert evidence from up to three witnesses. She has nominated Ms L, Dr J and Ms K. The mother annexed a copy of each proposed expert’s curriculum vitae to her affidavit of 17 February 2022.
Ms L
It appears that Ms L has had over 30 years’ experience as a medical doctor. The parties made submissions to the effect that Ms L would be in a position to assess and, or, examine X and, or, have access to X’s medical records. This suggested to me that all parties proceeded on the basis that Ms L is currently in practice. I observe, however, that Ms L’s curriculum vitae informs that she retired from medicine in 2022. It has been difficult to reconcile what I understand of the parties’ submissions on this issue with the curriculum vitae, although I accept that it may be the case that Ms L continues to hold her registration for a specific period of time before her retirement from medicine takes effect.
In any event, Ms L sets out that she runs a health-related business and is otherwise involved in the education sector.
The mother deposed that Ms L can give evidence about a number of matters, including:
(a)The design or intended mechanism involved in the Novel or Novel technology used in mRNA injections compared to the traditional design of injections for the purpose of vaccination;
(b)The targeted nature of the Novel or Novel SARS-CoV-2 virus infection, specifically COVID-19 disease, where Omicron variant and other relevant variants are involved;
(c)The risk or the risks of serious harm that can result from non-vaccination and how the level of such risk of harm is affected by X’s health status compared to average;
(d)The risks of death and other serious injury to X resulting from the relevant mRNA injection batches distributed in Australia and how that risk is likely to vary in the case of a child with X’s particular characteristics; and
(e)In relation to some or all of those matters, the limitations of the data available in the present circumstances and the significance of those limitations for their approval status and for the performance of a risk assessment.
No party took issue with the mother’s evidence in that regard.
In the course of submissions, the mother informed the court that Ms L would be well placed to speak to the issue of the benefits versus risks of vaccination, including by reference to American and British data, and that she could speak to other subjects including the limitation of data about the risks of injections for children.
Dr J
Dr J appears to be a retired medical doctor with over 40 years’ experience. The mother deposes that he has been involved in “initiating and training health professionals on prevention and treatment with measures and protocols that are available and scientifically found to be effective and safe for COVID-19, long COVID-19, post-vaccination and related complications”. She understands that he will also be able to give evidence about the “extra need to apply the precautionary principle of medical ethics in the circumstances”.
It appears from Dr J’s curriculum vitae that COVID-19 has been an area of his professional focus throughout the entirety of the pandemic. It is clear from Dr J’s curriculum vitae that he has been working on areas relating to the use of supplements for severely ill patients, I infer where the illness arises from COVID-19. As I understand his curriculum vitae, it appears that his proposed protocols have not been recognised by the government or the mainstream medical profession, notwithstanding that they were published to them. It is clear that he has based his work in this regard on both his experience and his review of scientific literature. It would also appear that throughout his career he has utilised scientific research including medical data and statistics to ground his work in other areas of health.
There appears to be no reason from the curricula vitae attached to the mother’s affidavit why the evidence proposed to be given by Dr J and by Ms L could not reasonably be given by one of those experts. It would appear that each has access to and is experienced in the use of statistics and clinical trial data. I can see no reason why both are required to opine on the risks and benefit of vaccination to X.
Ms K
Insofar as the mother proposes to call evidence from Ms K, Ms K sets out her position in her curriculum vitae as an “[director, senior executive and business professional].”
The mother deposed that Ms K would cover in her report the statistical issues such as the average rates of serious illness reported in unvaccinated and vaccinated persons in association with COVID-19; the rates of serious adverse events reported in association with COVID-19 injections; and the underreporting and casualty rates that have been published in scientific literature.
The mother contends that in the absence of such statistical evidence, authoritatively and properly calculated, it is not possible to perform a proper comparative risk assessment.
Ms K holds a bachelor’s degree and two master’s degrees. By reference to her curriculum vitae, her career focus to date appears to have been in the area of “[business planning and supply chain management].”
If Ms K has had experience in gathering, analysing and interpreting data in relation to the matters the mother contends she will give evidence about, it is not evident from her curriculum vitae. There is no evidentiary basis for the mother’s contentions about Ms K’s experience in the health related matters it is proposed she will give evidence about. This is not intended to be a criticism of Ms K’s qualifications. She appears to hold both a Bachelors and a Masters degree in a relevant field. However, I cannot be satisfied that she is appropriately qualified or experienced so as to provide the expert evidence the mother contends she will give having regard to her education, experience and training as set out in her curriculum vitae.
Determination on the application to adduce expert evidence from up to three witnesses
Having regard to these matters, observing that the time available for the hearing of the Application in a Proceeding will be limited and must be confined to the issues in dispute and observing that there appears to be no reason why the medical evidence the mother seeks to adduce cannot be given by either Ms L or Dr J, I do not consider that leave should be granted to the parties to adduce expert evidence from up to three experts.
I consider that the leave granted by the Judicial Registrar to adduce expert evidence from one adversarial expert witness should remain undisturbed.
The application to seek a further adjournment in the event of delays in Legal Aid
The mother seeks leave to seek a further adjournment of the proceedings in the event that Legal Aid NSW is significantly delayed in processing the transfer of her grant of Legal Aid, thereby interfering with her ability to have a lawyer prepare her application.
The mother was, until 9 July 2021, represented by Mr M, solicitor. I do not know how or why that representation came to an end. On 4 November 2021, a Notice of Address for Service was filed for the mother by N Lawyers who remained on the record until 24 January 2022. Whilst the mother submitted that they were engaged for the purpose of attending mediation between the parties, it is clear that they also attended to the preparation of the mother’s Application in the Proceeding and affidavit in support. On enquiry by me, the mother informed the court that N Lawyers were privately engaged as opposed to representing her on a grant of Legal Aid and that the mother borrowed funds from family members to pay their fees. The mother submitted, but there is no evidence, that that is no longer an option for her.
As discussed throughout the course of the interlocutory application before me, I have no control over the processes of Legal Aid, although I can make a notation requesting that they expedite (to the extent that it is possible) the transfer of the grant of aid. No party wished to be heard against a notation to that effect being made.
It was submitted by the solicitor for the father that a transfer of the grant of Legal Aid can usually be achieved within one week. The mother submitted that she is having difficulty with that timeline, notwithstanding that she has been in regular contact with Legal Aid following up on the transfer.
At this time, I am not prepared to adjourn the matter until the mother has secured a transfer of her grant of Legal Aid. This is because I do not have sufficient evidence about what is occurring with those processes and I do not know how long those processes will ultimately take.
I will, however, list this matter for compliance check before me on 16 March 2022 at 9.30 am. In the event that there has been an ongoing issue with the transfer of the grant of Legal Aid it can be raised at that point and I will determine what, if anything, should occur.
I pause to observe that, having regard to the entirety of the submissions made as well as the mother’s affidavits of both 14 February 2022 and 17 February 2022, the mother considers that there is a possibility that she will not be ready to proceed on the hearing date. This appears due to her contentions about issues including but not limited to:
(a)She may experience difficulty in securing an appointment with Ms L in sufficient time for a report to be prepared;
(b)The state of her own mother’s health is such that she may need to attend to assist her mother; and
(c)The issues arising in relation to her grant of Legal Aid.
As I understand these matters, the mother appears to be foreshadowing that she may not be in a position to be ready to proceed on 21 March 2022.
Having regard to the determinations made as set out in these reasons thus far, I consider that in the present circumstances the mother should do all things necessary to attend to the preparation of her case as best she can, acting on the assumption that the hearing will take place on 21 March 2022. Whilst it may be that at the further compliance check she may agitate an application for adjournment, there is no guarantee that it will be granted on that date and, accordingly, the mother should do all that she can to prepare as best she can for the hearing of her Application in a Proceeding on 21 March 2022.
The application for access to X’s medical records
There was discussion between the parties and the Court as to whether the father should be required to provide X’s medical records to the mother.
The mother wishes to provide the records to the expert she engages in these proceedings, and otherwise, she intends to have X attend on Ms L for examination or assessment for the purposes of preparing her expert report.
The father and the Independent Children’s Lawyer have no opposition, in principle, to that application other than that the father is unsure of what records the mother seeks. He contends, and I accept, that X’s medical records may include documents he does not hold. He does not oppose X attending upon a medical doctor who is presently registered for the purpose of assessment or examination as the mother intends.
It was submitted for the father that the more appropriate course would be for the mother to issue a subpoena for production to each of X’s doctors to gain access to the records she seeks. I understand that the mother does not oppose this course of action.
On balance, I consider that it is preferable for a subpoena to issue for X’s records rather than an order be made for the father to provide those records to the mother. I accept that there may be records such as blood test results, clinical notes or other records that are retained by a medical practitioner but not provided to the father.
For subpoenas to be issued, the mother will need to know the names and contact details for doctors upon whom X has attended since being in the father’s care. The father is willing to provide those details to the mother, if he has not already done so, and orders will be made to facilitate that occurring.
I pause to observe that any subpoena intended to seek those records will need to be issued in sufficient time to have the documents returned and access granted, so that they can be used for the purpose they are intended to achieve. Accordingly, any party intending to issue a subpoena for the production of X’s medical records should attend to those processes sooner rather than later.
CONCLUSION
The above reasons reflect my determination of the mother’s application for a stay of the hearing of her Application in a Proceeding and other procedural orders.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge M Neville. Associate:
Dated: 8 March 2022