Tolbert and Tolbert (No 2)

[2016] FamCA 532

FAMILY COURT OF AUSTRALIA

TOLBERT & TOLBERT (NO 2) [2016] FamCA 532

FAMILY LAW – PARENTING – Order made for the father to have parental responsibility with respect to immunising the children in accordance with the Australian Immunisation Guidelines and Recommendations

APPLICANT: Mr Tolbert

RESPONDENT: Ms Tolbert

INDEPENDENT CHILDREN’S LAWYER: Ms Smith

FILE NUMBER: SYC 3519 of 2009

DATE DELIVERED: 19 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 19 May 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Manning Lawyers

SOLICITOR FOR THE RESPONDENT: Kenneth Harrison Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The father has the sole parental responsibility 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.

2. In respect of the father’s application for a final order that he have sole parental responsibility in relation to major decisions in respect of the children’s health:

   2.1.Within a period of four weeks the father file and serve upon the mother and the Independent Children's Lawyer, an affidavit in support of that application for final orders;

   2.2.Within a period of a further eight weeks from the service upon the mother of the documents referred to in order 2.1, the mother file and serve a response to the father’s application for final orders and an affidavit in support of that response.

3. The matter be adjourned for mention at 10.30am on 23 August 2016.

4. I reserve the costs of today of each of the parties and the Independent Children's Lawyer.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tolbert & Tolbert (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

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. In this matter I made some orders on 26 April 2016, and gave some short ex tempore reasons for making those orders. The mother had failed to attend the hearing. I was at that time satisfied that the mother had been served with the application Those orders gave the father the sole parental responsibility for ensuring the three children be immunised in accordance with Australian Immunisation Guidelines and Recommendations but stayed the orders until 14 days after the mother had been served with the order. 

2. The mother has now appeared. The mother in an affidavit filed today says that the documents she was served did not have a return date on them, and the solicitor for the mother has provided me with a copy of an application without a return date on it.  However, the solicitor for the father has drawn my attention to the affidavit of service that was filed on 21 April 2016, which contains a bundle of documents that the mother was sent by post and by email.  It indeed contains the application that I was handed without a return date on it, but it also contains two other documents; namely, an identical application with a return date on it, together with a letter setting out in bold the date and time that the matter came before me. I do not accept the mother’s assertion that she didn’t know the matter was on on the last occasion.

3. The mother and father entered into consent orders on 18 December 2015, and in particular orders 6 through to 9, which required that the parties do all things necessary to arrange for Dr G and Dr H to arrange a schedule for the children to be inoculated in accordance with the Australian standards;  that the mother do all things necessary to arrange the inoculations of the children in accordance with the schedule as per the previous order;  that pending the finalisation of the schedule as per order 6 above, the parties continue to inoculate as per Dr G’s current schedule; and that the parties equally share the costs of the children’s inoculation in accordance with the orders.

4. Given the existence of the orders of 18 December 2015, I did not have to consider the advantages and disadvantages to these children of immunization in accordance with Australian Immunization Guidelines and Recommendations.

5. Had I needed to do so, I may have been able to receive into evidence the findings in the Reasons for Judgment of previous considerations of the advantages of immunization (for example, see Judge Jarrett in Farncan Williams (2015) FCCA 1557 [22] – [37]).

6. There is no suggestion in this case that the children are not healthy or that any of the children has a history of anaphylaxis.

7. So far as I am aware – and this seems supported by the letter which is at page 31 of the mother’s affidavit filed today – nothing has happened in relation to vaccinations between when the order for inoculation was made on 18 December 2015 and two days ago.  The annexure which is at page 31 is a letter from a Dr I, where he says that the history he was given by the mother was that the children had received no vaccinations until November 2014, and then they had a vaccination in December 2014, confirmed in January 2015, a vaccination in November 2014 and October 2015, and some vaccinations in December 2015 All those vaccinations happened prior to the orders of 18 December 2015.  Nothing has happened since.

8. Dr I’s letter seems to make clear that after the mother was served with the orders that place sole responsibility for vaccination in the hands of the father, subject to that order being stayed pending the mother applying to this court, the mother took the children to a doctor other than Dr G.  Pausing there, the mother’s counsel said that the reason nothing has happened is that Dr  G excluded himself after a complaint made by the father’s current partner about something that Dr G had done in vaccinating the children, that complaint being a compliant to the medical board.  If that is why she did nothing, it didn’t seem to prevent her from taking the children to another doctor once she saw the orders I had made on 26 April 2016. 

9. The letter from Dr I contains some disturbing information, including that the mother is unable to convince D, who’s aged 10, to take a tetanus injection, notwithstanding the fact that the doctor recommended it and the mother was in agreeance with that recommendation.  Next, it contains a statement that the doctor’s plan was to encourage hepatitis B vaccinations and a note that the mother wishes to defer those vaccinations.  This is the mother’s position as of two day’s ago.  The doctor also proposed polio vaccinations and the mother declined them.  The doctor notes that the mother’s declining of those vaccinations was due to the mother’s view that there had been an almost total eradication of polio.  She also declined HPV vaccinations.

10. There is clearly, on the material that I have, a long and tortuous argument between the parents in relation to immunisation.  It is not doing the children any good at all.  I have to break the cycle in some way, and the most obvious way is to place the decision-making about immunisation in the hands of the father, so he can get on with it and get it done.  I find it is in the best interests of the children to do so.  For those reasons, I confirm the orders that I made on 26 April 2016, as final orders in respect of immunisation of the children.  It leaves outstanding the father’s application that he have sole parental responsibility in relation to all medical matters, which may well be a totally different question.

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 19 May 2016.

Associate: 

Date:  25.5.16