Wachen & Wachen
[2021] FedCFamC2F 185
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wachen & Wachen [2021] FedCFamC2F 185
File number(s): CAC 1787 of 2021 Judgment of: JUDGE RIETHMULLER Date of judgment: 8 October 2021 Catchwords: FAMILY LAW – Review of Registrar’s decision – COVID-19 – vaccinations – father’s time limited to electronic communication Division: Division 2 Family Law Number of paragraphs: 41 Date of last submission/s: 8 October 2021 Date of hearing: 8 October 2021 Place: Melbourne (via Microsoft Teams) Solicitor advocate for the Applicant: Ms McGowan Solicitor for the Applicant: Elringtons Lawyers The Respondent: Appeared in person Solicitor Advocate for the Independent Children’s Lawyer: Ms Cruise Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
CAC 1787 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WACHEN
Applicant
AND: MR WACHEN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE RIETHMULLER
DATE OF ORDER:
8 OCTOBER 2021
THE COURT ORDERS THAT:
1.Order 2 of the Orders made 7 September 2021 by Senior Judicial Registrar Hoult be suspended.
2.Order 3 of the Orders made 7 September 2021 by Senior Judicial Registrar Hoult be discharged, and Order 16 and 17 of the Orders made on 17 August 2021 remain in full force and effect.
3.Until further order, the Respondent Father communicate with the children via FaceTime, Skype, telephone or such other electronic means as follows:
(a)At any time outside of school hours and the children’s regular extra-curricular commitments and before 8:00pm;
(b)With the Respondent Father to initiate the communication by way of call to the children’s mobile phones; and
(c)With the Applicant Mother to use her best endeavours to ensure the children communicate with the Respondent Father in accordance with this order and encourage them to return his call if they receive a missed call from the father.
4.The parties be at liberty to obtain COVID-19 testing for the children in the event they reasonably require it AND THAT the mother be at liberty to consent to the children undergoing Combined Throat and Bilateral Deep Nasal Swab testing and NOT consent to the children undergoing Combined Throat and Nasopharyngeal Swab testing.
5.The parties be restrained by injunction from the following:
(a)Discussing these proceedings with the children or within earshot of the children;
(b)Discussing the Magistrates’ Court proceedings with the children or within earshot of the children;
(c)Allowing the children to view or have access to documents relating to either these proceedings or the Magistrates’ Court proceedings; and
(d)Allowing any third party to do any of the above.
6.Within 21 days being by 28 October 2021, the Respondent Father file and serve an affidavit of no more than 20 pages of evidence and 40 pages of annexures (and affidavits of any other witnesses each limited to 20 pages of evidence and 40 pages of annexures) and a Financial Statement.
7.In relation to Order 6 above and within 14 days thereafter being by 11 November 2021, the Applicant Mother file an affidavit in response and any further witnesses affidavits upon which she intends to rely, subject to the usual rules as to length and a Financial Statement AND FURTHER that the Independent Children’s Lawyer have leave to file any material she wishes to rely upon in response.
8.The proceedings be otherwise adjourned for further hearing to a date to be advised and convenient to the Court after 11 November 2021.
9.The father have liberty to inspect and copy or receive electronically from the Court all material produced by:
(a)Health Service Provider D on 17 September 2021; and
(b)Health Service Provider E on 17 September 2021.
10.In the event that the father does not lodge an objection to the other parties viewing the subpoena material within 7 days, the legal representatives for the parties, the Independent Children’s Lawyer and any unrepresented party may inspect and photocopy or receive electronically from the Court all material produced by:
(a)Health Service Provider D on 17 September 2021; and
(b)Health Service Provider E on 17 September 2021.
11.The copying of the above material is subject to the following conditions:
(a)For legally represented parties, all copies are to remain in the possession of the legal representatives and are to be destroyed by them and permanently deleted from any electronic storage system at the end of the proceedings;
(b)For unrepresented parties, all copies are to remain in the possession of the party and are to be destroyed by them or returned to the registry for destruction and permanently deleted from any electronic storage system at the end of the proceedings; and
(c)The parties, the Independent Children’s Lawyer and the legal representatives are restrained from providing a copy of the documents or revealing their content to any person other than a legal representative without an Order of the Court or agreement in writing of each other party.
12.The parties are released from the implied Harman undertaking in respect of the Child Inclusive Conference Memorandum, any Notice of Risk filed by either Party, any Application or Response filed by either party, and any affidavit filed by either party (‘the documents’) in this proceeding, and have leave to use the documents in the Family Violence Order proceedings currently before the ACT Magistrates’ Court.
13.The listing before Senior Registrar Hoult on 6 December 2021 be vacated.
AND THE COURT NOTES THAT:
A.Use of the documents other than as authorised by court orders may constitute contempt of court and/or a breach of s.121 of the Family Law Act 1975 and may result in the imposition of penalties including a term of imprisonment.
B.Upon request to the Canberra Registry in writing, the staff of the Canberra Registry will scan the documents and email them to the legal representatives, the Independent Children’s Lawyer and any unrepresented party if not voluminous or make an appointment for viewing of the documents if they are voluminous.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the fact sheet attached hereto and these particulars are included in these orders.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to notify the Judge’s Associate by way of email within 24 hours.
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 a pseudonym Wachen & Wachen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE RIETHMULLER:
This matter concerns the care arrangement for two children, W, who is 12 years old and J, who is 10 years old. The boys are fortunate that they have two very loving parents. The children live with their mother who is a healthcare professional and they have, until recently, been seeing their father, who works as a construction worker, on a regular basis.
The children’s mother is 40 years old and their father is 45 years old. The parties have been operating largely in accordance with a parenting plan from 2018 until recent months, which, provided for the boys to live with the mother and to have every second weekend, with the father and to share the school holidays.
It is apparent from everyone’s material and particularly from the Child Inclusive Conference memorandum that the boys have a very warm and loving relationship with their father and enjoy their time with him when they see him on weekends at his farm.
It is also apparent that the farm provides a lifestyle that is a little less of the normal luxuries that one might have in a city residence, but that does not seem to trouble the boys at all. No doubt, it is part of the allure of being able to spend time with their father in the countryside.
The mother applied to the Court with respect to limiting the children’s time as a result of events that flowed on from the effect of the COVID-19 outbreaks in Australia and its apparent impact upon the conduct of the father.
At the outset, I should make clear that it seems to me that this is not a case that can be simplistically characterised, but is about a complex mix of issues which correlate not only to the father’s past mental health history, but also the impact upon the father of various matters he agreed with on the internet with respect to the safety and efficacy of vaccinations for COVID-19.
I note that the boys have been vaccinated in the past for the usual childhood diseases and this matter concerns an issue that relates to the COVID-19 vaccine particularly, not to vaccinations generally.
Despite the matter now having been pending for some time (since August of this year), there is very limited material from the father before the Court. However, yesterday, in hearing the matter, which I scheduled late in the day so that the father would be able to appear from home rather than a building site where he works given the obvious emotional issues involved, the father made extensive submissions and we had extensive discussions about the issues in the case. It is clear that the father has had a history of some mental health issues and during submissions yesterday, he provided a particularly moving account of his suicidal ideations in 2018.
The father has come some distance forward from thinking about and preparing to commit suicide in 2018, in particular, loading a shotgun while being in a car. The father said that he noticed in the car that he had a rock that one of the boys had given him, a small gift which had significance for him, being a gift from his child. It brought him to the thought that it would be terrible for the children if he proceeded and thus desisted. The father called a friend and he went to the police station with the assistance of his friend and handed in his firearms. The pathos of that account was quite striking and whilst it is not formally on affidavit, I accept that it represents a reasonable account of this part of the father’s history and presentation.
The father, on a medical document that he has produced, identifies that he used to suffer from depression, anxiety, ADHD and post-traumatic stress disorder. He takes a prescription medication for his ADHD. It appears from the redacted medical note that he provided that he also takes another medication and might have another condition which is not clear from the material.
The father is deeply concerned that the mother is artificially constricting his time with the boys and his relationship with them. Given the history of the matter and the fact that there has been such regular contact since then, it does not appear to me, and on the material currently before the Court, that this is a realistic complaint that could be made against the mother. The boys’ relationship with him is very positive and they have been seeing him regularly until recently. It seems much more likely to me that, despite the challenges he has faced in his life, the mother has been sufficiently supportive to enable the boys to have a very positive relationship with their father and no doubt not only for the father’s benefit, but also for the benefit of the two boys as they only have one father in their life.
The mother’s material sets out a number of factors. It is important to look at a case such as this as a whole and in context in order to appreciate the difficulties that the parties face.
The father had spent some time in a psychiatric facility at a mental healthcare centre in Town B some time ago for a depressive disorder. He has had diagnosed mental health conditions as I have outlined. His episode of depression was obviously severe in 2018, but he has been coping well with life in recent times, seeing the children regularly, maintaining a positive relationship with them, obtaining employment as a construction worker and it seems he has a fiancé and therefore is maintaining some personal relationships.
The father’s presentation in Court was compelling, reasonable and particularly engaging. He has a doctor that he can get a referral from for psychological assistance under the mental health plan system. He takes some medications including a prescription medication for the ADHD disorder. He has, it seems, ceased taking antidepressants, although he has a review every two years.
Much of the contention in the case is whether or not the father has become paranoid about vaccinations for COVID-19. The father is a sceptic and he says that he is carefully reviewing the material that is available through research on the internet about the safety and efficacy of the vaccine. The mother is concerned that based upon his conduct and her history with him that he may be beginning to suffer some degree of paranoia or ruminating far too much on these issues, leading to concerns about his objectivity and mental health.
On the mother’s material, at least at one stage, the father believed that the COVID-19 vaccinations were part of some form of government conspiracy plan towards genocide. She said that he had described one of the vaccines as a ‘high tech time delayed kill shot’. There were a number of other statements he made in a very large number of text messages that were sent to the mother. For example, in 2021 at 11:54am:
Hi Ms Wachen, I don’t know what to do but I need to keep trying to wake you up to what is really happening. Taking the Pfizer shot was a terrible mistake. There is a reason I asked you to talk to me first if you decided to take this shot. I’m gutted and very worried for you and the boys as well. This is not a vaccine. It is a high tech time-delayed kill shot. Google, FB and all other mainstream media is using AI to censor the truth about what is unfolding. If I showed you the hard evidence of what the ‘vaccines’ really are and how they work you would shut off because the cognitive dissonance would be too much to handle. Our boys are also at severe risk of illness and death now as your body is increasingly shredding certain things because of the tech you have injected into you.
The father sent another text message to the mother in2021 at 6:51pm stating:
Just know that when you realise what they injected you with and what you are facing (and I still hope you had a saline mercy shot) I’ll be by your side to help and fight for you, whatever it takes. Don’t let your pride kill you, please, I need you to wake up now for the sake of our children. There are solutions but timing is critical Wachen. I need to keep trying to get through to you because the alternative is that [X] [Y] and I will stand and weep at your grave sometime between next week and 2023. This is no misinformation or conspiracy theory. Millions are awake to the chilling reality of what’s happening, hence the extreme censorship. Wake up please, do it for the boys, I beg you!
On 2 August 2021 at 11:17am, the father said to the mother:
Part of this conference details some of the evidence how dangerous the spike proteins excreted by your body are to [X] and [Y]. Keep looking the other way if you wish but the boys (and all other survivors) will eventually learn the truth and judge you accordingly. I’m a father desperately trying to protect his children and your wilful blindness makes me sick to my stomach. The boys will know I tried to tell you over and over that you refused to look into it. That will be your legacy. I am incredibly disappointed you have turned into this.
On 3 August 2021 at 9:57am, the father also said to the mother:
Your delay will not slow me down. You better start researching Pfizer clinical trial documents including transmission/shedding and lab results of what is actually in the injections which they initially hid by declaring it a ‘trade secret’. I will have some serious questions about this at 4pm tomorrow. I don’t care anymore what you do to your body, I really don’t. This is about our children so you better start paying attention. Ignorance kills.
The father has told the mother through text messages that he has spoken to the children about the COVID-19 theories and has shown them some of the ‘propaganda material’ including books and videos. The children have told the mother that some of the documentaries are lengthy. The children have expressed some anxiety as a result of things the father has told them about the COVID-19 vaccine.
In around August 2021, it seems that the father attempted to call the mother 48 times and she received 63 text messages from him which are set out at paragraph 38 of her affidavit filed 16 August 2021, for example:
i)Do you realise you are intentionally psychologically abusing me, [X] and [Y]??
ii)I will not allow you to play sick games like this.
iii)Is this my punishment for trying to warn you about the potential danger of a medial experiment you exposed our children to?
iv)You have sunk very low in your quest to punish me for divorcing you.
v)This is nothing less than abduction exception your not even demanding a ransom.
vi)And don’t play the victim about me messaging you at 130am! All you had to do was pick up the phone at 3pm and explain what you were doing and arrange for me to speak with MY CHILDREN!!!!
vii)It is the intimidating violent silence, like I don’t exist anymore like I never had children, lost… like they’re dead, unreachable far away, and nobody cares.
The text messages show an increasing exasperation by the father who it seems, at least at this point, genuinely believed that the COVID-19 vaccination shots were a death shot that was likely to kill the mother. The father even contacted the police for the purpose of having a welfare check with respect to the mother.
The mother is concerned that the father owns guns and had the guns on his country property. However, these may no longer be items in his possession because of the order in the Magistrates’ Court with respect to the Domestic Violence Application.
The Child Inclusive Conference Memorandum notes that the children appear to have been allowed to ride motorbikes on the property without a helmet and that the facilities at the father’s home were somewhat far from modern home conveniences, but it seems to me that this has not troubled either of the boys. This aspect is not, in my mind, a significant matter.
When all of these things are viewed as a whole, it leads to real concerns about how well the father is coping with the concept of the vaccine, the realities of the mother having been vaccinated and the question now before the Court as to the vaccination of the children. In addition, it raises questions as to the extent of the effective measures that the father is engaging in in order to minimise the prospects of contracting COVID-19 when the children are in his care. In this regard, I note that the father works in the building industry, so he is in a workplace among other people. He has chosen not to be vaccinated which is his right, but it means that he is therefore more vulnerable to contracting COVID-19 and more likely to transmit it than a person who is vaccinated. The father does not wear a mask and he has obtained an exemption. He explained that he was able to obtain an exemption in New South Wales without a formal medical certificate, based only upon a statutory declaration by himself. For the purposes of the interlocutory and interim hearing, I have accepted that the father is exempt and there is a lawful exemption, however, the real question is not so much whether or not it is within the health regulations, but the practical reality that the father is not wearing a mask and that therefore there is an increased risk, both in contracting and transmitting the virus to others when masks are not worn.
The mother has taken considerable care with respect to the children. She has obtained flexible work arrangements as a result of her concerns that the children might contract COVID-19 from her due to her work as a healthcare professional and had that supported by her doctor’s certificate. She is particularly concerned about the risk to the younger child Y, who her General Practitioner believes is more vulnerable to a respiratory infection and Y is, at this stage, too young to receive the vaccination, although that may change in the not too distant future. Given that Y is a child that is more vulnerable than the average person, one can see the reasons for the mother’s very real concerns about COVID-19 and the children as also reflected in the steps that she has taken, both in being vaccinated and with her flexible work arrangements to minimise the prospect of the children contracting the virus from her.
At this stage, the father opposes the children being vaccinated and it seems to me that an order for the vaccination of children is not one that is appropriately made on an interim occasion like this where the father has not yet filed any substantial material about the vaccination. It would require some time for the father to collate his material and put that material before the Court.
At present, I have only the government health advisories to rely upon which weigh in favour of the vaccination as being a highly protective measure and likely to save lives. Whilst the vaccine is not 100 percent effective in preventing contracting the disease, the media reports indicate that the prospect of a serious outcome or death is far less among those who are vaccinated compared to those who are not. This information is not formally in evidence before the Court, demonstrating the need for there to be an opportunity for the parties to put on actual evidence about these matters rather than references being made to various media reports or advisories.
For that reason I am not prepared, on this occasion, to make orders to give the mother parental responsibility for the purpose of having X and Y vaccinated. I will reserve that question until the parties can file more formal material.
It leaves, however, the question of the extent of risk to the children when in the care of the father, both as a result of the father’s current mental health and the impact that the COVID-19 events may have had upon him and, particularly the impact upon him of the issues in this case and knowing that the mother has herself been vaccinated and some of the statements he has made about the potential risks of that vaccination of the mother.
In addition, there is the difficulty with respect to the likely increased risk of the children contracting COVID-19, not only because of the choices that are made by the father with respect to vaccinations, mask wearing and so forth but also that the governments have indicated that the community is likely to be opened up shortly as vaccination rates reach higher levels.
Recent media reports indicate that there is a rising numbers of the infection. It seems likely that there will be rising infection numbers even with vaccination rates up if the numbers follow similar courses to what has been reported from overseas. It is clearly important to have some proper evidence of these things rather than acting upon media reports but, at this stage, it highlights the risks that are present and the very real difficulty in assessing the precise nature of those risks.
I bear in mind the Child Inclusive Conference Memorandum dated 2 September 2021, in particular paragraphs 29 to 33 which provided:
29.The parents appear to have navigated a reasonably successful co-parenting relationship until recent times. Both parents described the other parent as somewhat controlling and manipulative, but maintained a level of respect and empathy when discussing them. The mother alleged that the father’s interactions towards her had become increasingly harassing in recent months, and she has sought a FVO to prevent this level of contact from the father.
30.The mother expressed that she would like the children to maintain their relationship with the father, and does not wish to restrict the father’s time with the children, but she believes that the father’s comments to the children about Covid-19 are harmful for their mental health and wellbeing. The mother believes these beliefs may be a form of delusion, based on the father’s level of fixation and inflexibility, and his alleged history of paranoia. However, the father’s perception is that his mental health is stable, and that his beliefs are reasonable, logical, and well researched. The father is adamant that he can cease speaking to the children about Covid-19, vaccinations and government restrictions, and has agreed to avoid these topics in order to recommence his time with the children. However, the mother and children indicated a belief that the father will have difficulty adhering to this agreement, as he has previously made similar promises.
31.The father raised concerns about the mother’s mental health, due to her sudden change in behaviour towards him. He has proposed that both parents undertake mental health assessments to explore issues relating to their mental states. It appears that this would be beneficial, to more thoroughly explore these issues.
32.The children displayed a strong desire to recommence time with the father, and a wish to visit the father’s farm to see their animals. The father has proposed that the children recommence spending weekend time with him, and that this time increase to 5 nights each fortnight. However, there is a risk that the father is not able to adhere to his agreement, which is likely to be distressing for the children. Additionally, it may place pressure on the children if they believe that disclosures about their father’s comments could lead to them ceasing to spend time with him.
33.The mother proposed that the father spend supervised time with the children. However, the professionally supervised contact environment provides a highly unnatural environment, and is likely to lead to a long period of no contact while this is organised. Given there do not appear to be safety concerns, it may be possible for the children to spend time with the father, informally supervised by a member of the parents’ friends or family. The mother suggested that she has a number of colleagues or friends who work as health professionals, who may be willing to supervise visits to ensure that the father does not speak to the children about his views on Covid-19.
Further, the recommendation of the Family Consultant at paragraphs 35 to 36 of the Child Inclusive Conference Memorandum, provided that:
35.The Court may wish for both parents to attend a mental health assessment to ensure that there are no current mental health issues that could impact their parenting capacity.
36.The Court may wish to consider an arrangement where the children spend time with the father for three hours each weekend, supervised by an agreed person, to ensure that he does not speak to the children about Covid-19. Providing the father is able to comply with his agreement, and no risks are identified through the mental health assessment, it may be appropriate for the children to resume spending time with the father from Friday afternoon until Sunday each fortnight.
When assessing risks in this case, it seems to me that the risk of contracting COVID-19 is one of the significant factors. It does not appear to me to be clear how supervision of contact is going to materially impact upon that risk in circumstances where the father is unvaccinated and unable to wear a mask and a large part of the risk is the greater risk of the children contracting COVID-19 from the father.
When I step back and consider all of these matters together, it seems to me that on the limited material currently before me, the continuation of physical contact between the father and the children presents an unacceptable level of risk to the children and that it is appropriate that it be suspended at this time in order to meet the children’s best interests until such time as some proper evidence can be placed before the Court and to be reviewed if and when the children are vaccinated and/or other proposals are put forward by the parties.
It is for these reasons that I have indicated that I will make the orders set out in draft together with consequential orders to facilitate as much time as reasonably possible by way of electronic communication between the father and the boys and to facilitate a hearing before the Court on an early date so a determination can be made as to whether or not the mother should be permitted to vaccinate the children.
With respect to the subpoenaed material, the father seeks an opportunity to view it first so as to determine whether to object to the other party seeing it and I will give him that opportunity.
The orders making the material available in this Court to the Magistrates’ Court and in the Magistrates’ Court proceedings are not in dispute between the parties. Neither is the testing order with the restriction to it being a combined throat and bi-lateral nasal swab test.
I therefore make the orders substantially in the terms set out by the Independent Children's Lawyer. The crucial effect of them is that physical contact will cease. The father will have electronic communication with the boys until further order.
The parties will need to file their material and the matter will be listed thereafter. It may be before me or if there is a judge available in Canberra, it may before the judge in Canberra on that date depending on judicial availability in order to ensure that the matter comes back before the Court as quickly as possible for two reasons. Firstly, it is a significant step to restrict the father’s contact so much and it needs to be dealt with very quickly so that if contact is to resume, that should happen as quickly as possible. Secondly, it is clear that on the mother’s case, vaccinations are a significant protective factor for the children and each day they are unvaccinated they are without that protection. The issue about vaccination of the children needs to be resolved as soon as possible so that they are to be vaccinated quickly if that is ordered.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller. Associate:
Dated: 23 November 2021
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