Tolbert and Tolbert

[2016] FamCA 294

FAMILY COURT OF AUSTRALIA

TOLBERT & TOLBERT [2016] FamCA 294

FAMILY LAW - INTERIM - CHILDREN

Family Law Act 1975 (Cth)

APPLICANT: Mr Tolbert

RESPONDENT: Ms Tolbert

FILE NUMBER: SYC 3519 of 2009

DATE DELIVERED: 26 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 April 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Manning Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. From the date of these orders the father has the sole parental for the children, namely:

   1.1.B born … 2002;

   1.2.C born … 2003; and

   1.3.D born … 2005

   (“the children”) with respect to immunising the children in accordance with the Australian Immunisation Guidelines and Recommendations.

   save that that order be suspended for a period of 14 days after service of the orders upon the mother and for that purpose, service can take place by the lawyers for the father sending a sealed copy of the orders by email and express post.

2. The mother has liberty on short notice to relist the matter should she wish to further challenge order 1 within the 14 days that order is suspended.

3. Costs for today are reserved.

4. I note that there is an extant application for final orders that the father have sole parental responsibility in relation to all medical treatment for the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tolbert & Tolbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3519  of 2009

Mr Tolbert

Applicant

And

Ms Tolbert

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The father makes an Application in a Case filed 5 April 2016 for orders that he have sole parental responsibility for the children B, C and D, with respect of immunising the children in accordance with the Australian Immunisation Guidelines and Recommendations. In support of that application the father filed an affidavit on 5 April 2016. There has been no appearance by the mother today. The mother, so far as I know, has not filed a notice of address for service in these proceedings since her lawyers ceased to act.

2. Leave granted to the father to file in court an affidavit by Ms E who is a solicitor acting for the father in the proceedings. Ms E sets out in her affidavit the attempts that have been made to serve the mother with the application and accompanying affidavit. Those attempts firstly involved providing the relevant documents to a Mercantile agency for service. I have an affidavit from that agency which was filed 21 April. There were three attempts of personal service on 8^th, 9^th and 10^th April and the details of what happened on each of those occasions are set out in that affidavit. Subsequent to those unsuccessful attempts at personal service, the documents were forwarded on 11 April 2016 to an email address which I am satisfied is the mother’s email address and further on the same day were sent by express post to the mother’s residential address of Suburb F. I am satisfied that by either of those two means, that is service by email and service by express post, the mother has received the application and the affidavit in support of the application.

3. Orders were made on 18 December 2015 by consent which, inter alia, provided in orders 5, 6, 7, 8 and 9 a regime that would ensure that each of the children complete their course of immunisation so that they are inoculated in accordance with Australian standards.

4. The father’s evidence contained in the affidavit filed in support of his application is that the mother has not complied with the consent orders made 18 December 2015 in relation to immunisation. In fact, there is annexed to the father’s affidavit an email from one of the children’s schools which indicates that the mother had withdrawn her consent to vaccinating the children. I have no information as to why the mother has changed her mind about vaccinating the children.

5. The father has had great difficulty in dealing with the children’s treating medical practitioner who has refused to speak to the father about these matters.

6. In all of those circumstances, I find it is in the best interests of the children for an order to be made as sought by the father and I make an order in terms of paragraph 2 of the father’s Application in a Case filed 5 April 2016.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for ex tempore judgment of the Honourable Justice Watts delivered on 26 April 2016.

Associate: 

Date:  29.4.16