Trott & Brenton
[2022] FedCFamC1F 366
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Trott & Brenton [2022] FedCFamC1F 366
File number(s): SYC 4379 of 2019 Judgment of: SMITH J Date of judgment: 25 May 2022 Catchwords:
FAMILY LAW – PARENTING – COVID-19 vaccination – determination of a separate issue – mother called medical expert opinion evidence from child’s general practitioner in support of vaccination – no expert evidence called by father – medical evidence establishes that benefits of vaccination with Pfizer vaccine outweigh known risks – consideration of possibility of presently unknown future side effects – possibility of presently unknown side effects cannot be completely excluded but the medical evidence establishes they are unlikely – consideration of s60CC factors raised by parties. Held: Mother to have sole parental responsibility on the issue of vaccination of the child against COVID-19.
Legislation: Evidence Act 1995 (Cth) ss 59, 69ZT, 76 79
Family Law Act 1975 (Cth) Part VII, ss 4, 4AB, 60CA, 60CC, 65AA, 65D, 69ZX, 117
Cases cited: Banks & Banks [2015] FamCAFC 36
Covington & Covington [2021] FamCAFC 52
Cranston & Persson (No 2) [2022] FedCFamC1F 187
Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [37]
Gable & Pasley [2021] FedCFamC2F 79
Lamereaux v Noirot (2008) 216 FLR 432
Lamos & Radin (No 2) [2022] FedCFamC2F 167
Palange & Kalhoun [2022] FedCFamC2F 149
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
Division: Division 1 First Instance Number of paragraphs: 118 Date of hearing: 16 May 2022 Place: Sydney Solicitor for the Applicant: Makdo Family Lawyers & Associates Counsel for the Applicant: Ms Abdelraheem Solicitor for the Respondent: Marsdens Law Group ORDERS
SYC 4379 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRENTON
Applicant
AND: MR TROTT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
25 MAY 2022
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the child X born in 2009 on the sole issue of vaccination against COVID-19.
2.A copy of these Orders may be provided to any medical practitioner to confirm that X may be vaccinated against COVID-19 with the Pfizer vaccine.
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 Trott & Brenton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION
This Trial is about the discrete issue of whether X, born in 2009 (aged 12) and in year 6 at B School, should be vaccinated against the COVID-19 virus with the Pfizer vaccine.
X’s mother, the applicant Ms Brenton (“the mother”), thinks that X should be vaccinated with the Pfizer vaccine now, in line with current NSW Health guidelines and recommendations. The mother believes this will reduce X’s risk of contracting the COVID-19 virus, or that if X does contract COVID-19 she will have reduced symptoms and risks of a significant adverse outcome. The mother has been double vaccinated against COVID-19 and intends to get a booster shot.
X’s father, the respondent Mr Trott (“the father”) is not against vaccination per se. X has had all of the usual childhood vaccinations. However, while the standard childhood vaccines have been in use for a long time and their safety is well established, he does not believe that X should be vaccinated against COVID-19 until there is further and better information about any potential long-term adverse side-effects of the Pfizer vaccine. At the very least, he says, any decision about vaccinating X against COVID-19 with the Pfizer vaccine should be deferred to a final hearing, which is likely to be at least 12 months away, so that further information can be obtained. The father is not vaccinated against COVID-19.
BACKGROUND
The parties separated in 2014. The father filed an Initiating Application commencing parenting proceedings on 5 July 2019. Pursuant to Interim Consent Orders entered by the Court on 25 September 2019 X lives primarily with the mother and spends regular time with the father. An Independent Children’s Lawyer (“ICL”) has been appointed and participated in this hearing.
Despite some difficulties in their co-parenting relationship the Court Child Expert, Ms C, said at [37] of her Child Dispute Conference Memorandum dated 15 January 2020 [Exhibit 1] that:
Both Mr Trott and Ms Brenton presented as loving and competent parents who have X’s best interests at heart.
I accept that opinion without reservation.
Sometimes loving and competent parents acting in good faith can genuinely form and hold reasonable, but different and even contrary, views about what is in the best interests of their child. That has occurred here.
In these circumstances the parents have asked the Court to determine the issue. The parties agree that the Court has the power pursuant to the Family Law Act 1975 (Cth) (“the Act”) to determine whether or not X should be vaccinated against COVID-19 with the Pfizer vaccine (see Covington & Covington [2021] FamCAFC 52; Cranston & Persson (No 2) [2022] FedCFamC1F 187).
Procedural History and Trial
The mother filed an Application in a Proceeding on 21 February 2022, supported by a short affidavit filed 18 February 2022 [MA], seeking the sole substantive order:
That the mother have sole parental responsibility in relation to having the child X born in 2009 vaccinated against Covid-19 pursuant to the recommendations and guidelines of the New South Wales Health and Government.
The father filed his Response to an Application in a Proceeding on 21 April 2022, supported by an affidavit also filed 21 April 2022 [FA], seeking:
1. That the mother's Application in a Proceeding filed on 18 February 2022 be dismissed.”
On 24 March 2022 the mother filed an affidavit of X’s usual treating general practitioner Dr D.
On 31 March 2022 the Division 2 Judge who had the ongoing case management of these proceedings made orders that the matter be listed on 16 May 2022 “for final hearing in relation to the discrete issue of whether the mother should have sole parental responsibility for the child receiving COVID-19 vaccinations”. That Judge made orders for the filing by each party of expert evidence on the issue of vaccination against COVID-19 and, as this is a final hearing on a discrete issue, allowing for cross-examination of the parties and expert witnesses.
The father did not file any expert evidence.
The Trial Judge became unavailable. The matter was then transferred to Division 1 and allocated to me for the Trial of the discrete issue.
At the Trial the mother relied upon her Application in a Proceeding, her Affidavit and the Affidavit of Dr D [D], together with her Outline of Case Document as an Aide-memoire by way of submissions [AM1]. The father relied upon his Response to an Application in a proceeding, his affidavit and a Case Outline document as an aide-memoire by way of submissions [AM2]. The ICL relied upon a Case Outline as an Aide-memoire by way of submissions [AM3]. The ICL did not take a position at the commencement of the Trial, electing to wait until hearing the evidence. Both parties and Dr D were required for cross-examination. Both parties were represented by Counsel.
ISSUES AT TRIAL
Communication about COVID-19 Vaccination and this Application
Both parties raised the issue of communication around COVID-19 vaccination in evidence. It is clear that despite their mutual devotion to X their capacity to communicate while co-parenting is less than ideal.
The parties agree that children of 12 and over became eligible for the COVID-19 Pfizer vaccine in about September 2021. X turned 12 on 28 December 2021 and became eligible for vaccination from that day.
The father sent the mother text messages in the period prior to X turning 12 relating to the issue of vaccination against COVID-19. Those text messages [Exhibit 2] read:
Wednesday, 10 November 2021, 11:43 am
Father: “Hi Ms Brenton. What is your stance on the Covid vaccination in regards to X?
10 November 2021, 7:40 pm
Father: “???”
Friday, 3 December 201, 6:45 pm
Father: “You still haven’t responded to me in regards to your views of vaccines in regards to X. If she becomes eligible, you DO NOT have my consent to allow her to take part in this mRNA clinical trial.
The mother agreed in cross-examination that she had not responded to any of these text messages. She said she was unsure about her stance on the COVID-19 vaccination at the time the father sent his text messages. She said that she did not reply to his text messages, noting his firmly stated position, as she thought that sometimes it was best to “leave things” when she knew they did not agree.
On 20 January 2022 the mother’s solicitors advised the father’s solicitors by email that X’s maternal aunt, who was living with X and the mother, had tested positive for COVID-19 [FA 4-5, Annexure A]. X had to isolate with her mother and maternal aunt until 25 January 2022. X and the mother did not test positive despite isolating with the maternal aunt.
On 25 January 2022 the father’s solicitors received an email from the mother’s solicitors stating [FA 6, Annexure B]:
We refer to the above matter and confirm that we are instructed that the mother wishes to have the child, X, vaccinated against Covid-19.
We kindly ask you to obtain your client's instructions in relation to his consent in respect of X's vaccination.
We draw your attention to recent case law and the court's view in relation to having children vaccinated and the importance of keeping the children safe.
On 27 January 2022 the father’s solicitor’s replied [FA 7, Annexure C]:
We are instructed that our client does not consent to any form of mRNA vaccines being administered to the child. Additionally, we are instructed to request that the mother refrain from administering any form of vaccination to the child without our client's consent. In any event it appears that your client understands her obligations in that regard and will not administer any vaccination without our client's consent or a Court order.
The father gave evidence that [FA 8-11]:
8. Prior to the email received on 25 January 2022, Ms Brenton had not raised the issue of vaccinating X against Covid-19 with me. She provided no details in relation to which vaccine X should be provided with, no urgent reason for X to be vaccinated and no details as to any professional opinion being sought.
9. X has no current medical conditions that put her at risk of obtaining symptoms if she contracted Covid-19.
10. Ms Brenton has only sought professional medical advice following the filing of her Application.
11. Ms Brenton has otherwise not discussed her concern about any risk to X prior to filing her Application.
The mother was asked in cross-examination whether her sister’s infection was what had caused her to form the view that X should be vaccinated. She said it was one factor, but not the only factor.
The mother said she had started thinking about COVID-19 vaccination for X when it was recommended for children. She said there were a number of factors which, together, persuaded her that it was in X’s best interests to be vaccinated against COVID-19 with the recommended Pfizer vaccine. These were: her experience of her sister’s illness; and, ongoing news reports about COVID-19 fatalities; and, knowing people who were infected with COVID-19 including her mother and her son; and, that Government bodies she considered reliable experts were recommending the Pfizer vaccine for children of X’s age; and, finally the fact that X was about to return to school for 2022.
In cross-examination by the ICL the mother said that the maternal aunt had had one shot of a COVID-19 vaccine prior to becoming ill, and that the maternal aunt had now had a second shot. She said the maternal aunt had not had any lasting impacts from her COVID-19 infection. The mother said that her 72-year-old mother’s taste had been affected, although it was changed rather than being lost, and that her 24-year-old son had had some ongoing breathing problems since being infected in January 2022, but that he was not taking medications and he had returned to work.
Mother’s Views About COVID-19 Vaccination
The mother’s affidavit was concise. The essence of her evidence was that [MA 9-11]:
9. X is currently in year 6 and I believe that having her vaccinated will reduce her risks of either contracting the virus completely or if she does contract it, she will have minor symptoms.
10. It is within the NSW Health and governments guidelines and recommendations that children in X's age should be vaccinated.
11. I confirm that I have been vaccinated and have received my second dose on the 11TH of October 2021. I will also be having the booster shot.
The mother was cross-examined for the father on the possible side effects of the Pfizer vaccine. She said she understood there could be flu like symptoms and agreed that she had heard about myocarditis (heart muscle inflammation) and had heard that there was a very small possibility of this occurring. The mother was asked what other side effects she had heard of. She said words to the effect:
Nothing really, just that, and like any vaccine, there’s side effects, like any medication there’s side effects. I’m just listening to what the government recommends and I trust the experts. So that’s my stance on it, I’m no expert on it but I trust the experts that guide us. I don’t know all the details about it no, I’m not a doctor, I’m not a chemist.
When asked whether she had asked the father what his concerns were, she said that she had not asked him. She said she did not ask him as she felt he had made it clear to her that he accepted “conspiracy” theories, whereas she said she accepted what the health organisations recommended.
Father’s Views About COVID-19 Vaccination
The father gave evidence that [FA 15] “the NSW Health and government guidelines, recommendations and restrictions surrounding Covid-19 continue to change.”
The father pointed to the fact that X [FA 9] “has no current medical conditions that put her at risk of obtaining symptoms if she contracted Covid-19”. Dr D’s evidence was to the same effect. There is no evidence to suggest that X is not healthy or that she is subject to any additional risks associated with infection by COVID-19 over and above those faced by all children of her age.
The father said that [FA 12-14] COVID-19 vaccination is not mandatory for X and that her school does not require vaccination for her to attend in person. Further, he pointed to the measures the school has put in place to reduce the risks of transmission, including restricting pick-ups to outside the gates or else to one parent entering the school at a time, and of providing the students with antibacterial wipes at the start of the day. The school provides alerts and X has not been required to return to home schooling due to COVID-19 infections.
In cross-examination the mother agreed that X’s school did not require her to have the COVID-19 vaccine and does not require the children to wear masks. She agreed that X had not been required to stay home from school since the start of the 2022 school year. When asked about other children getting COVID-19 she said that she gets a lot of messages from the school advising that other students had tested positive and were required to isolate at home with their families. She said the last message was about two weeks ago, not long after X returned to school from the school holiday.
The father gave evidence that [FA 18-19] X’s 10 and 12 year old unvaccinated paternal cousins, as well as the father’s cousin’s unvaccinated seven year old child, have had COVID-19 and recovered “without any lingering effects”.
The father raised [FA 17] the fact that he believes that his paternal uncle suffered heart problems as a consequence of receiving the COVID-19 vaccination.
In cross-examination by the mother the father said that he was vaccinated in the past for other illnesses but not for the COVID-19 virus. In respect of the COVID-19 virus and vaccination the father said he believed there should be “a risk assessment” and that for himself he trusted his own immune system. He said he had undertaken this risk assessment himself rather than seeking any assistance from a medical practitioner.
The father confirmed that he opposed X being vaccinated against COVID-19, at this time, and said that he did not believe there was any urgency.
The father said that he had done research online and come to the conclusion that not taking the vaccine was the best path for him. He said the material he had looked at included the Therapeutic Goods Administration website as well as other government websites and also information on a variety of social media sites, including links from those social media sites. He did not include in his material any documents he had relied upon. He could not specify the websites nor the sources of the information relied upon to conclude that the TGA and other government advice was not appropriate to follow.
The father confirmed that he had not taken any medical advice about X getting the Pfizer vaccine.
He said his main concern about X getting vaccinated was that “we do not know the long term side effects.” In terms of possible unknown side-effects which concerned him the father said that “we just don’t know. It could be nothing, it could be something big. We just don’t know.”
In terms of when he thought he might have sufficient information to consider whether or not X should be vaccinated with the Pfizer vaccine he said that he thought that the current Pfizer vaccine had been “rushed to market after a year” compared to the usual process of “at least years of testing before they reach the populous” which caused him concern. He said “it would be nice to have more information in front of us from long term studies for the best way forward”.
When asked whether another year would be enough time, in terms of additional scientific knowledge, to meet his concerns he said that he would:
… appreciate a longer time [and] … who knows we might even have a different vaccine that’s more appropriate … It’s hard to tell … but with the current ones available I’m just concerned with them.
In cross-examination by the ICL the father agreed that if we would wait until we better understand the issues X could be an adult before a decision is made. He did not disagree, but said that when X is an adult she can make her own decision.
The father was asked about X’s views and said that she was undecided and but had not expressed any sense of urgency. That is in the context where the father agreed that he had told X that he does not support her receiving the COVID-19 vaccine.
Dr D's Expert Opinion
The parties were both afforded the opportunity to call expert evidence. The mother relied on Dr D’s evidence. The father did not lead any expert evidence.
Dr D is a qualified medical practitioner with the degrees of Bachelor of Medicine and Bachelor of Surgery. He is a Fellow of the Royal Australian College of General Practitioners and a practicing general practitioner. Dr D’s qualifications, experience and expertise were not challenged at any stage.
Dr D’s evidence referenced “many clinical trials from around the wor1d reported in peer reviewed journals which support the use of the Covid-19 Vaccines and attest to their efficacy” in support of the opinions he gave.
In cross-examination Dr D said that he had been a general practitioner for 48 years, in addition to being X’s GP for about five years, and referred to the published literature. Dr D also said that in his own practice he and his colleagues had vaccinated several hundred of their child patients with the Pfizer vaccine, and that the only adverse reactions he was aware of were local reactions, including sore arms and transient fever and malaise of up to four to five days. He said that he recommended the Pfizer vaccine for all children of X’s age unless there was a contraindication.
Dr D was sent a series of questions by email dated 3 March 2022. He provided a short report in reply dated 16 March 2022. Both of these were included at Annexure A to his affidavit. He provided additional evidence in the body of his affidavit.
Given the concise ambit of Dr D’s report and affidavit it is convenient to set out in full the substantive portions of both.
The questions asked and the answers set out in his report [D Annexure A], read together, were:
[Q] 1. Specific reasons relevant to X's needs and best interests as to why she should be vaccinated
[A] 1. X is at risk of contracting Covid-19 while at school as this has become an increasing place of transmission.
[Q] 2. How long have you been X's family doctor
[A] 2. I have been X’s GPO for 5 years
[Q] 3. The name of the proposed Covid-19 vaccination to be administered to the child
[A] 3. The Pfizer vaccine formulation
[Q] 4. The reason(s) for urgency
[A] 4. The Covid epidemic is predicted to worsen over the next few months and cases have already increased throughout the school system. Giving X the vaccine ASAP would be protective
[Q] 5. Does the child have any health complications that may impact her health even more if she receives the Covid-19 vaccine?
[A] 5. X does not have any health conditions which would be a contraindication for the vaccine
[Q] 6. Does the child have any allergies?
[A] 6. X is allergic to nickel which is found in some jewellery. She is not allergic to any drugs or components of the Pfizer vaccine.
[Q] 7. Does the child need any blood test results or examination prior to the child receiving the Covid-19 vaccine?
[A] 7. There is no need for any blood tests or examination before the vaccine is given
[Q] 8. Should the child wait some 12 months or so before she receives the vaccine?
[A] 8. X should not wait for 12 months before the vaccine is given. It should be given as soon as possible
[Q] 9. What evidence can we provide to the court to articulate that the benefits of the child obtaining the Covid-19 vaccine outweigh the possibility of her catching Covid-19?
[A] 9. There is evidence from many clinical trials from around the world reported in peer reviewed journals which support the use of the Covid vaccines and attest to their efficacy.
In his affidavit he said, apparently in response to the same questions [D 7-15]:
7. I believe that X is at risk of contracting Covid-19 at her school as this has become an increasing place of transmission.
8. I have been X's treating general practitioner for 5 years.
9. I would recommend that X receive the Pfizer vaccine formulation.
10.In relation to question 4 mentioned in the correspondence above, the Covid
Epidemic is predicted to worsen over the next few months and cases have already
increased throughout the school system. Giving X the vaccine as soon as
possible would be protective.
11. X does not have any health conditions which would be a contraindication for
the vaccine.
12. X is allergic to nickel which is found in some jewellery. She is not allergic to drugs or components of the Pfizer vaccine.
13. There is no need for any blood tests or examination before the vaccine is given.
14. X should not wait for 12 months before the vaccine is given. It should be given as soon as possible.
15. There is evidence from many clinical trials from around the world reported in peer reviewed journals which support the use of the Covid-19 Vaccines and attest to their efficacy.
In cross-examination for the father Dr D identified the “contraindications”
as a child being allergic to a previous vaccination or having had an anaphylactic reaction to any of the contents of the proposed vaccine.It was suggested to Dr D that he had not been X’s GP when she received her usual childhood vaccines and did not have access to her prior medical records, and he agreed. It was suggested to him that he was not, therefore, in a position to give an opinion. Dr D said that he always took a history about a new patient and that he was not given any history that X had had any such allergic or anaphylactic reactions. It was not put to Dr D, or in submissions in the father’s case, that X had in fact had any such reactions or that there were any such contraindications. I note that Dr D’s affidavit and report identified X’s allergy to nickel and he had clearly considered the issue of allergy to any components of the Pfizer vaccine.
Dr D agreed that X was not suffering from any medical condition which made vaccination against COVID-19 more urgent than for other children of her age. He identified such conditions as a child being immunocompromised or having debilitating diabetes or other complex medical conditions as being reasons for greater urgency.
Dr D agreed that the TGA continued to run tests and to monitor safety risks for the COVID-19 vaccines. He said that this was the case for all vaccines. He was asked about the fact that the Pfizer vaccine was newer than the standard childhood vaccines, such as the polio or measles vaccines, and whether this affected the capacity to have knowledge about side effects. He said words to the effect that:
It’s newer than most but in fact it’s probably had more widespread use across the world and there is probably more information about side effects than many other vaccines … because it’s been so widely used around the world … and every government around the world is looking and surveilling any reactions.
Dr D said he could not say whether or not the COVID-19 vaccine had been more widely administered than the polio or the measles vaccines, which have been around for many years. He said he could not provide comparative figures but that “millions and millions of doses of Pfizer have been administered both to children and adults. And I think that we’re now well aware of the side effect profile that the vaccine has.”
Dr D agreed there was necessarily uncertainty about the potential long-term side-effects of receiving the Pfizer vaccine as it is a new vaccine. He said, however, that while we cannot know the future, in his opinion it involves a question of weighing up all of the likely risks and benefits and that “there have been so many doses administered we are able to get a broad hold on the instances of serious side effects.”
Dr D also agreed that it would not be possible to know what side-effects, if any, X will suffer until she has had the vaccine, which was put to Dr D was the father’s main concern. Dr D said, however, that in his opinion “also, it might be too late if she gets COVID-19 and has a serious problem with that.”
Dr D agreed that despite having had the COVID-19 vaccine a person could still contract COVID-19, but said that although this was true “most people in that category have a much reduced risk of hospitalisation and death.”
Dr D was asked:
Q: But are you telling me that you cannot become seriously ill from COVID-19 after you have been vaccinated?
Dr D: No I am not saying that. I am saying that statistically the vast majority of people that end up in intensive care have not been vaccinated. There is a minority of people who still require intensive care who have been vaccinated. Vaccination for most diseases is not a hundred percent effective. It certainly, in this environment, you are better off being vaccinated than not.
Q: So it’s not also a hundred percent protection.
Dr D: No, no vaccine is.
Q: And it’s not also one hundred percent that that X will not suffer any side effect or reaction?
Dr D: Well, you know, crossing the road isn’t without risk. I can’t, no one in medicine can guarantee a hundred percent success.
Dr D was asked questions about X having been “exposed” to the COVID-19 virus when living in isolation with the maternal aunt. To the extent it was being suggested to him that X’s risk of getting COVID-19 was very low because even when “exposed” she did not contract it, Dr D drew the distinction between X being in the same house as an infected person and being “exposed” to the disease. He said that would depend on the quality of the isolation measures taken. There was no evidence that X was “exposed” to COVID-19.
Dr D was also cross-examined by the ICL. He was asked:
Q: And would you, If there were long term risks and you may not be able to answer this, if so please don’t hesitate to say so, if there were long term risks would you expect that there would already be by this stage consequences from people having had the vaccination?
Dr D: I would imagine so because the Sabin was a live vaccine so it had that potential to multiply in the body and so on. Pfizer is not a live vaccine. It’s not even a part of the original virus, it’s an artificially manufactured chemical, if you like, that incites an immune response. So I think if there was going to be a long term problem it would have shown up by now as most of the reactions that have been put down to vaccine occur within weeks or at the very most within months following vaccination.
The ICL also asked Dr D about the instances of serious side effects from the Pfizer vaccine. He said there were no deaths that he was aware of. He said that, apart from anaphylaxis, the major complication is pericarditis and myocarditis. He said the risks of pericarditis and myocarditis were real, but at 10 in one million cases were also rare. He said this was mainly a risk issue for men in their twenties and thirties, and that he was not aware of any incidence of pericarditis and myocarditis as a side-effect in girls in X’s age group in Australia. However, Dr D also said that this did not mean to say that such side effects could not happen to X.
Dr D said that he expected that any side-effects were reported to the relevant authorities and made widely known and acted on, as happened with the serious side-effects from AstraZeneca which were widely reported and quickly acted on in Australia.
Findings In Other Cases – s 69ZX
In closing oral submissions Counsel for the mother sought to rely upon a series of authorities as setting out not only the relevant legal principles to be applied, but as making findings of fact about COVID-19 infection and the Pfizer vaccine which it was submitted this Court should apply in this case.
The authorities referred to were: Cranston & Persson (No 2) [2022] FedCFamC1F 187; and, Palange & Kalhoun [2022] FedCFamC2F 149; and, Gable & Pasley [2021] FedCFamC2F 79; and, Lamos & Radin (No 2) [2022] FedCFamC2F 167.
The father objected on the basis that he did not have prior notice of the application, and that even in closing oral submissions there was not sufficient particularity given around the specific findings or recommendations said to be relied upon.
While the Court has power in child-related proceedings to “adopt any recommendation, finding, decision or judgment of” prior proceedings in this Court, see s 69ZX(3)(b) of the Act, procedural fairness required the father to be given sufficient notice of precisely what “recommendations” or “finding”, and which “decision” or “judgement”, were sought to be relied upon, see e.g. Lamereaux v Noirot (2008) 216 FLR 432.
The question of what notice is required to provide procedural fairness may vary from case to case. However, I am satisfied that by raising this only during closing oral submissions the mother did not afford the father adequate notice. In effect if the intention is to rely upon such material as evidence in a case, then in my view similar principles of fairness to those that apply to the prior service of other evidence would generally apply.
If the mother intended to rely, for example, upon the expert opinion evidence of the public health expert Dr E as to the “comparison of risks associated with COVID-19 infection verses vaccination” in children 5-11 as set out in detail in paragraph [57] of the Judgment in Palange, and on the acceptance by the Court of that opinion at [134], then in my view procedural fairness required that notice of reliance upon that opinion should have been given at the same time as the service of other evidence, or at least sufficiently prior to Trial, to allow the father to obtain expert evidence in reply if he wished to do so.
Consequently, I will determine the issue based solely on the evidence lead before me at Trial in this proceeding.
X'S BEST INTERESTS ARE THE PARAMOUNT CONSIDERATION
As these are child related proceedings pursuant to Part VII of the Act X’s best interests are the paramount consideration in making a Parenting Order about whether or not X should be vaccinated against COVID-19 with the Pfizer vaccine (ss 65D, 60CA, 65AA).
While that test sounds appealingly simple, balanced and well-informed people acting in good faith and with a desire to promote a child’s best interests can, and often do, disagree about precisely what is in the child’s best interests.
In determining what parenting order is in a child’s best interests the Court must “consider” the primary and additional considerations set out in s 60CC of the Act. The “primary considerations” are “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” (see ss 4, 4AB) and “the benefit to the child of having a meaningful relationship with both of the child’s parents. There is no issue here of X being subjected to or exposed to “abuse, neglect or family violence”. Vaccination pursuant to a Court order cannot constitute any of those matters. X’s parents both love her and care for her, and will do so regardless of vaccination against COVID-19. X also has a strong and meaningful relationship with both parents, and that will also continue whether or not she is vaccinated against COVID-19.
In this case the primary issue as defined by the parties is X’s health, and the weighing of the risk to X of contracting COVID-19 when unvaccinated against the risks and benefits to X of receiving the Pfizer vaccine now.
There are a substantial number of “additional considerations”. Not all of these are relevant in every case, and the parties may effectively dictate which s 60CC factors are relevant by the issues that are joined and the way they conduct the proceedings (Banks & Banks [2015] FamCAFC 36 at [48]). I have considered these additional considerations.
X’S HEALTH AND THE RISKS AND BENEFITS OF THE PFIZER VACCINE
By reason of s 69ZT(1) of the Act many of the provisions of the Evidence Act 1995 (Cth) (“EA”) do not apply to these child related proceedings. Where evidence is admitted as a consequence of a provision of the Evidence Act not applying the court (s 69ZT(2)) “may give such weight (if any) as it thinks fit to” that evidence. The question of whether or not evidence is admitted only by reason of the absence of a provision of the Evidence Act is therefore a relevant question for consideration when assessing the weight to be given to the evidence before me.
The mother gave evidence of her views about the risks and benefits to X of receiving the Pfizer vaccine. This evidence of medical risk and benefit was hearsay evidence (s 59 EA) and opinion evidence (s 76 EA). As she said she is not a doctor or a chemist, and she does not have any specialised knowledge about vaccines or vaccination which would qualify her to give expert opinion evidence (s 79 EA). Her evidence was that she accepted the expert opinions of the Australian health authorities who recommended the Pfizer vaccine for children of X’s age. The mother’s evidence can therefore be given no weight in assessing the relative medical risks and benefits to X of receiving the Pfizer vaccine.
It was common ground that the TGA has approved the Pfizer vaccine for children of X’s age and that a range of Government bodies currently recommend that children of her age should receive the vaccine. The mother did not seek to lead documentary evidence setting out the basis of the Government recommendations, however, Dr D gave evidence based on the evidence of clinical trials reported in peer reviewed journals around the world which encapsulated the basis for the Government recommendations.
The father gave evidence of his views about the risks and benefits to X of receiving the Pfizer vaccine. He did not suggest that he had any relevant specialised knowledge which would qualify him to give expert opinion evidence. He did not seek medical advice about COVID-19 vaccination either for himself or for X. He said that he looked at the Government websites which support the Pfizer vaccine for children of X’s age, as well as at other social media linked web-sites. He did not produce any material from any of these websites. The father’s lay opinion can be given no more weight than the mother’s in assessing the relative medical risks and benefits to X of receiving the Pfizer vaccine.
I will, nevertheless, consider the specific evidence the father gave in support of his view based on his own observations. The father gave anecdotal evidence, unsupported by any medical evidence, about three young relatives aged seven, 10 and 12 who were infected by COVID-19 and who he said had no lingering effects, and also about his paternal uncle suffering heart problems post vaccination. The father also pointed out in evidence and submissions that X did not become infected despite being “exposed” to her maternal aunt while in isolation.
To the extent to which the father seeks that an inference be drawn that children do not suffer lingering adverse effects from infection by COVID-19, whereas vaccination causes myocarditis, in support of a further inference that there is a risk but no benefit to X receiving the Pfizer vaccine, I accept,\ that many children do not suffer any long term adverse effects from COVID-19 infection and that myocarditis is a known side effect of Pfizer vaccination.
However, a sample of 3 children known to the father does not establish that X cannot or will not suffer serious consequences from COVID-19 infection. Further, Dr D’s expert evidence was that myocarditis mainly effects men, such as the father’s uncle, and further mainly men in certain age groups. Dr D was not aware of any female children in Australia suffering myocarditis as a side effect although he could not exclude it as a possibility.
To the extent to which the father seeks that an inference be drawn that X was exposed to the COVID-19 virus through her maternal aunt but did not become infected, and then further an inference that this means that X is unlikely to be infected if exposed again, the evidence did not establish “exposure” to COVID-19 merely through living in the same house given the obligation to follow isolation protocols in the house.
In his evidence, and in submissions on his behalf, the father identified his major concern about the Pfizer vaccine as the unknown, and unknowable, possible future side effects. In his text message to the mother of 3 December 2021 the father referred to “this mRNA clinical trial”, and in his solicitors correspondence of 25 January 2022 he identified his opposition to “any form of mRNA vaccines”. It is clear that in addition to the fact that the Pfizer vaccine is new, as it relates to a new disease, the father also has concerns about the fact that it employs the mRNA technology or methodology which has not previously been employed. That is not an unreasonable concern.
In his evidence the father also raised the changing health advice. The father’s legal representative could not direct me to any change in the NSW Health or Government guidelines and recommendations surrounding vaccination of children in X’s age group with the Pfizer vaccine since it was first approved for them but there have been other changes, and I note that there were, as Dr D said, changes to the recommendations around the use of the AstraZeneca vaccine. As I understand it, the father seeks to make the point that the changing health advice over time is evidence of the lack of certainty about the appropriate response to COVID-19, and seeks an inference that the current recommendation about vaccination of children against COVID-19 with the Pfizer vaccine is therefore similarly uncertain and subject to change.
Unlike either of the parties Dr D is a person who, by reason of his medical training, study and experience, has relevant specialised medical knowledge which allows him to give expert opinion evidence on the issue of the risks and benefits to children associated with vaccination against COVID-19 with the Pfizer vaccine compared with the risks of infection by COVID-19 when unvaccinated (s 79 EA, see also the majority in Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [37]).
Dr D primarily gave evidence by reference to the published peer reviewed data in the context of the millions of doses of the Pfizer vaccine against COVID-19 that have been given during the current pandemic to children and adults. He also gave evidence, when questioned in cross examination, by reference to his own medical experience vaccinating several hundred child patients with the Pfizer vaccine. That personal clinical experience was consistent with the results of the published data concerning millions of vaccinations around the world.
I find that as X’s usual GP, who I find was properly informed of her vaccination and allergy history, Dr D is particularly well qualified to give opinion evidence about whether or not X should be vaccinated against Covid-19 with the Pfizer vaccine taking into account the medical risks and benefits.
Dr D’s written opinion was very concise, however it was more fully explained in the course of his oral evidence. I am satisfied that Dr D’s whole expressed opinion on this narrow single medical issue would satisfy the test of admissibility pursuant to s 79 EA if that section had applied to these proceedings (see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157, Branson J at [7] and Weinberg and Dowsett JJ at [87-88])).
For these reasons I place significant weight on the expert medical opinion evidence of Dr D concerning the medical risks and benefits to X of receiving the Pfizer vaccine, including on the question of when she should be vaccinated.
In summary, Dr D’s opinion was that X is at risk of contracting COVID-19, that there are no contraindications to her receiving the Pfizer vaccine, that the known risks of receiving the Pfizer vaccine for X as a female of 12 are minor and include localised arm pain and some potential lethargy, and that while myocarditis cannot be excluded it is primarily an issue for adult males and he was not aware of any female children in Australia suffering that side effect.
In response to a question in cross examination Dr D accepted that a person could become seriously ill from COVID-19 even after vaccination, but said that there was a clear benefit to this vaccination as vaccinated people “have a much reduced risk of hospitalisation and death” noting that “the vast majority of people that end up in intensive care have not been vaccinated.” Despite that he accepted that there were people who require treatment in intensive care after vaccination because vaccination is not 100% effective.
The father focussed on the concession that vaccination is not 100% effective, but I note that the starting point in Dr D’s evidence is that people who are infected by COVID-19 risk hospitalisation, including treatment in intensive care, and death. The significant benefit to the Pfizer vaccine is that there is a reduced risk of being infected, and further if infected a reduced risk of hospitalisation, severe illness or death compared with those who are unvaccinated. While vaccination cannot exclude the risks associated with infection by COVID-19 it does reduce them.
Dr D conceded that it is not possible to exclude the father’s concern that unknown side effects might emerge in future, but considered it unlikely given the “millions and millions of doses of Pfizer administered to both children and adults” world-wide, the extent of Government monitoring of the issue, and the fact that the Pfizer vaccine is not a live virus but a manufactured chemical which incites an immune response. Given these factors Dr D’s opinion was that although he could not exclude the possibility it was likely that “if there was going to be a long term problem it would have shown up by now”.
On the issue of a risk assessment Dr D agreed that it would not be possible to know what side-effects, if any, X will suffer until she has had the Pfizer vaccine. However, he also said that “it might be too late if she gets COVID-19 and has a serious problem with that.”
In summary his opinion was that weighing the medical risks and benefits “in this environment, you are better off being vaccinated than not” and that and that the Pfizer vaccine would be protective for X and should be given to her now.
DISCUSSION AND CONCLUSION
The mother submitted that the medical risk benefit analysis strongly favours X receiving the Pfizer vaccine now.
The father submitted in his case outline that because any long term adverse consequences of vaccination can only be known when the Pfizer vaccine has been in long term use, that to vaccinate X at this time “constitutes unacceptable risk of exposing the child to physical or psychological harm through the neglect of her health through an act which cannot be undone.” He maintained that position in closing submissions.
The only evidence to which I give weight concerning the medical risks and benefits to X of receiving the Pfizer vaccination is the opinion of Dr D.
The evidence establishes that COVID-19 is an infection which may cause only minor illness in some unvaccinated people, but which in some people causes serious illness leading to hospitalisation and to death. The risk of infection by COVID-19, and the risk of serious health consequences including hospitalisation and death, are significantly reduced, but not entirely excluded, by the Pfizer vaccine.
This reduction in risk is a clear and significant medical benefit which X would obtain from the Pfizer vaccine.
The known likely side effects of receiving the Pfizer vaccine for X are unlikely to exceed local soreness in the arm and some lethargy. She is unlikely to suffer myocarditis as a 12 year old female.
In these circumstances in my view the medical benefits to X from receiving the Pfizer vaccine as soon as possible significantly outweigh the known medical risks.
I accept that it is not possible to entirely exclude the risk of presently unknown long term adverse side effects from the Pfizer vaccine. This is because it is a new vaccine, directed to a new disease, using a new methodology. However, I accept Dr D’s opinion evidence and find that it is unlikely that a serious side-effect will develop which has not already been identified through the millions of doses of the Pfizer vaccine administered, as occurred with the AstraZeneca vaccine.
Even taking into account the risk which cannot be excluded of a long term presently unknown side effect of unknown seriousness arising at a future time, on balance and noting that there is no risk free option, I find that the medical benefits to X from receiving the Pfizer vaccine as soon as possible still clearly outweighs the medical risks.
In terms of the other considerations and issues raised in the evidence and submissions, while it is clear that the parties’ capacity to communicate on this issue has been less than ideal, it was not ultimately submitted that this was a factor to be given weight.
The father did rely in submissions upon the circumstances and timing in which the mother sought his consent to vaccination as evidence that the mother did not consider the matter as something urgent or requiring attention until her sister became ill, which was said to go to the issue of whether it was a matter requiring determination prior to a final hearing. While I accept that the mother was influenced by her sister’s experience, together with other factors, and that this probably had an impact on her perception of the urgency of the matter, the fact that her sister’s infection with COVID-19 influenced her views does not detract from the legitimacy of the mother’s concerns, nor from the medical opinion evidence.
There was some evidence of X views. The father said that she was undecided about receiving the Pfizer vaccine but expressed no urgency on the topic. That was in the context of being aware of the father’s, and possibly the mother’s, views. Where X has not expressed a clear view, and given her young age and the complex medical issues involved, I do not consider X’s views a relevant consideration.
The issue of parental capacity and attitudes to parental responsibility were touched on, particularly by the mother in her evidence in cross examination suggesting that the father’s position was motivated by conspiracy theories. I note the ICL’s Case Outlines touched on this issue too and the possible loss of objectivity by the father in his assessment of X’s best interests if influenced by “political” considerations. The ICL’s submissions were written in circumstances where the basis of the father’s concerns may not have been clear.
In closing argument no submissions were made that the father’s parental attitude or capacity were not appropriate or adequate. I accept the father’s concerns are as set out in his evidence and addressed above. I do not consider that this is an issue to be given any weight in determining the issue.
There was no submission that an order to administer the Pfizer vaccine would adversely impact on either parent’s capacity to parent.
In my view, and noting the various s 60CC considerations, on the issue of vaccination against COVID-19 with the Pfizer vaccine the competing medical risks and benefits to X of being unvaccinated or of receiving the Pfizer vaccine are the significant relevant consideration in determining X’s best interests.
While acknowledging the father’s good faith position and the basis for his concerns, after considering and weighing the evidence before me, and given my finding that the current known medical benefits to X of receiving the Pfizer vaccine clearly outweigh both the current known risks of an adverse reaction as well as the unlikely but possible risk of presently unknown side effects emerging over time, I am satisfied and find that it is in X’s best interests to receive the Pfizer vaccine.
In these circumstances I am satisfied and find that it is in X’s best interests for vaccination with the Pfizer vaccine to occur now rather than for the matter to now be stood over to the final hearing.
ORDERS
I will make orders broadly in the terms sought by the mother so that X may be vaccinated against COVID-19 with the Pfizer vaccine.
The usual order pursuant to s 117 of the Act would be for each party to pay their own costs. However, if either party seeks costs they may to file an Application in a Proceeding in accordance with the Rules.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 25 May 2022
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