Trott & Brenton

Case [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…

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AGLC
Trott & Brenton [2022] FedCFamC1F 366
Case
[2022] FedCFamC1F 366
Decision Date

CaseChat Overview and Summary

The matter before the Court is an application by the mother to determine whether she should have sole parental responsibility for the child receiving COVID-19 vaccinations. The applicant is X's mother, and the respondent is X's father. The matter has been heard on an application in a proceeding filed by the mother on 21 February 2022, seeking sole parental responsibility for the child to be vaccinated against COVID-19. The father opposed the application and sought dismissal of the mother's application. The father, while not opposed to vaccination per se, believes that X should not be vaccinated against COVID-19 until there is further information about any potential long-term adverse side-effects of the Pfizer vaccine.

The central legal issue before the Court is whether the mother should have sole parental responsibility for deciding whether X should be vaccinated against COVID-19 with the Pfizer vaccine. The Court must consider the medical risks and benefits of the vaccine, the child's best interests, and the relevant provisions of the Family Law Act 1975 (Cth). The Court also had to consider the evidence provided by the parties and expert witnesses on the issue of vaccination against COVID-19.

The Court found that the medical benefits of the Pfizer vaccine for X significantly outweigh the known medical risks, including the risk of presently unknown long-term adverse side effects. The Court relied on the evidence of Dr D, X's usual treating general practitioner, who opined that the Pfizer vaccine would be protective for X and should be given to her now. The Court also considered the primary and additional considerations set out in s 60CC of the Act, including the need to protect the child from physical or psychological harm and the benefit to the child of having a meaningful relationship with both parents. The Court found that the father's concerns about long-term adverse side effects of the vaccine did not outweigh the clear medical benefits of the vaccine.

The Court concluded that it was in X's best interests to be vaccinated against COVID-19 with the Pfizer vaccine as soon as possible. The Court found that the mother should have sole parental responsibility for deciding whether X should be vaccinated against COVID-19 with the Pfizer vaccine. The Court ordered that the mother have sole parental responsibility in relation to having the child vaccinated against COVID-19, pursuant to the recommendations and guidelines of the New South Wales Health and Government.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.