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Federal Circuit Court of Australia |
Last Updated: 9 September 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Makinen & Taube [2021] FCCA 1878
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File number(s):
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HBC 837 of 2020
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Judgment of:
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JUDGE TAGLIERI
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Date of judgment:
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Catchwords:
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Legislation:
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Cases cited:
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Arranzio & Moss [2015] FamCA 544
In the Marriage of McEnearney [1980] FamCA 43
Kingsford & Kingsford [2012] FamCA 889
MRR & GR [2010] HCA 4
Rice & Asplund [1978] FamCAFC 128; (1979) FLC 90-725
SPS & PLS [2008] FamCACF 16
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Number of paragraphs:
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Counsel for the Applicant:
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Mr M Trezise
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Solicitor for the Respondent:
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The Respondent in person
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Counsel for the Independent Children's Lawyer:
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Mr T McKenna
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Solicitor for the Independent Children's Lawyer:
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Ogilvie Jennings
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ORDERS
BY CONSENT, THE COURT ORDERS THAT:
1. There be orders, declarations and notations
made in terms of the document entitled “Minute of
Consent Orders”, attached hereto and marked “A”,
signed by the parties and the Independent
Children's
Lawyer.
THE COURT ORDERS THAT:
2. In respect of all decisions relating to the children’s immunisation and vaccination, the Applicant Father Mr Makinen (“the father”) have sole parental responsibility for X born in 2009 and Y born in 2013 (“the children”).
3. The father forthwith do all acts and things necessary to ensure that the children receive the childhood vaccinations/immunisations as are recommended by the children’s treating general practitioner by reference to the current National Immunisation Program Schedule published by the Australian Government, Department of Health and Ageing.
4. The father do all acts and things necessary to ensure that the children continue to receive into the future such immunisations as are recommended by the children’s treating general practitioner by reference to the National Immunisation Program or its successor, for children of their respective ages.
5. For the purpose of implementing the obligations of the father which arise pursuant to orders 2 to 4, inclusive, of these Orders:
6. The mother do all acts and things necessary to:
(a) Deliver the children’s Personal Health Record blue book (“the blue book”) to the children’s treating general practitioner not less than 24 hours prior to any vaccination appointment (notified to her pursuant to order 5(g) of these Orders);
(b) Provide the father with a copy of the blue book initially ;
(c) Provide the father with a copy of further endorsements of the blue book referable to immunisations received from time to time.
7. The mother is restrained from giving the children advice, statements, opinion or comment contrary to the recommendation(s) of the children’s general practitioner.
8. A copy of this order be provided to the children’s current general practitioner and any other general practitioner who treats the children or vaccinates them from time to time.
THE COURT NOTES THAT:
“A”
Minute of Consent Orders
(Agreed at ICL Conference on 20 July 2021)
DEFINITIONS & NOTATIONS
Parental Responsibility
1. The Parents have equal shared parental responsibility for Major Long Term Issues affecting the Children excluding vaccination/immunisation Decision Making.
2. The question of decision making relating to the Children’s health (including vaccination)(Health Care Decision Making) be determined by the trial Judge.
Living Arrangements
3. The Children will live with the Mother.
4. The Children will spend time with Father during school term time as follows:
(a) Each alternate week on a Thursday commencing at 5PM (first commencing 29 July 2021) until 6PM on the following Monday.
(b) If the Father resumes employment in the greater Hobart area in the intervening week (commencing 4 August 2021 and each alternate week) he may spend time with the Children on either a Wednesday or Thursday from the conclusion of the Children’s school day until 7PM with the Father to notify the Mother of his return to work in Hobart and his election of either a Wednesday or Thursday at least seven (7) days prior to commencing time.
5. The Children will spend additional time with:
(a) the Father as agreed in writing with the Mother; and
(b) the Mother as agreed in writing with the Father.
Special Occasions and Non-School Time
6. The Children’s living arrangements specified in paragraphs 3 and 4 of these Orders are suspended to allow the Children to spend time with each parent as follows:
Birthdays and Celebrating Parents
(a) for the Mother’s birthday if a school day from the end of school until 7PM or if a non-school day from 10AM until 5PM; and
(b) on Mother’s Day, from 10AM until 5PM.
(a) for the Father’s birthday if a school day from the end of school until 7PM or if a non-school day from 10AM until 5PM; and
(b) on Father’s Day, from 10AM until 5PM.
(a) if a school day from the end of school until 6PM; and
(b) if a non school day: from 2PM until 7PM.
Christmas
(a) in 2021 and each alternate year thereafter, with the Father from 3.00pm on Christmas Eve until 3.00pm Christmas Day, and with the Mother from 3.00pm on Christmas Day until 3.00pm on Boxing Day or such other day and time as agreed between the Parents; and
(b) in in 2022 and each alternate year thereafter, with the Mother from 3.00pm on Christmas Eve until 3.00pm Christmas Day, and with the Father from 3.00pm on Christmas Day until 3.00pm on Boxing Day or such other day and time as agreed between the Parents.
School Holidays and Easter
(a) The holidays will be divided equally between the parents on an alternating basis of 3 nights / 4 days or at either parent’s election at least 30 days prior to the start of:
(i) each term holiday: up to 7 nights / 8 days (term holidays); or
(ii) the summer school holidays: for up to a block period of four (4) weeks to enable a parent to travel with the Children outside Tasmania or the Commonwealth of Australia.
(b) If a parent makes an election in accordance with paragraph 6.5(a)(i) or (ii) the other parent is entitled to the same block period of time during the relevant school holiday period.
(c) The first night of each holiday commences at 4PM on the final day of school with the Parents to agree who the Children commence time with and failing agreement with the Mother in even numbered (eg 2022) years and the Father in odd numbered years (eg 2021).
(d) The conclusion time during term holiday and summer school holidays is 7PM unless otherwise agreed.
(e) If Easter occurs in a separate period to the term 1 school holidays:
(i) in even numbered years (eg 2022) the Children will spend time with the Mother from the conclusion of school on Easter Thursday until the 3PM on Easter Sunday, and with the Father from 3PM on Easter Sunday until the return to school; and
(ii) in odd numbered years (eg 2021) the Children will spend time with the Father from the conclusion of school on Easter Thursday until the 3PM on Easter Sunday, and with the Mother from 3PM on Easter Sunday until the return to school.
Handover Arrangements
7. Unless otherwise agreed, handover between the Parents takes place this way:
(a) Handover occurs at school on school days;
(b) Handover on non school days will occur with the parent who is about to commence time with the Children collecting the Children from the other parent’s place of residence;
(c) The Parents may agree upon alternative handover arrangements in writing.
Extra-Curricular Activities
8. Each Parent is entitled to attend the Children’s extra-curricular activities irrespective of who the Children are living or spending time with, subject to the following:
(a) The parent with whom the Children are currently living/spending time with, will be responsible for the Children’s attendance at the activity; and
(b) The other parent is not to request the Children leave the extra-curricular activity with them for a sleep over or to spend additional time with that parent.
Communication
9. The Parent with whom the Children are not living or spending time with be at liberty to telephone the Children via the other parent’s phone on Tuesday, Thursday and Saturday or Sunday each week at all reasonable times.
10. The Parents must keep the other informed of their preferred mobile and email contact information and residential address.
11. The Parents are each entitled to travel with the Children outside the State of Tasmania or Commonwealth of Australia during any time that the Children is living/spending time with them and subject to the following:
(a) The travelling parent must always provide the non-travelling parent with at least 30 days prior notice of the proposed travel, such notice to include but not exclusively, the following details:
(i) the proposed date(s) of departure and return;
(ii) a copy of any proposed itinerary, or any other documentation evidencing the proposed destination(s);
(iii) a copy or copies of the e-ticket and/or air ticket(s); and
(iv) all addresses; telephone number(s) or other contact details where the non-travelling parent can contact the Children during the travel period.
(b) Subject to Commonwealth Government Travel restrictions as a result of COVID-19:
(i) Travel to the European Union and, specifically, Country B is permitted; and
(ii) Travel to Country with a www.smartraveller.gov.au advice level of 1 or 2 is permitted and travel to an advice level 3 or 4 destination is only permitted by Order of a Court exercising jurisdiction under the Family Law Act 1975
Passports
12. Within 7 days of either parent making a request to the other parent, the Parents must do all acts and things, including but not limited to signing all documents necessary to obtain an Australian and/or Country B passport for the Children.
13. The Mother will hold the Children’s Passports and provide them to the Father if he travels overseas.
Family Overseas in Country B
14. If either parent travels with the Children to visit their family in Country B and the other parent’s immediate family (e.g maternal/paternal grandparents, aunts and uncles) are living in Country B, the travelling parent will facilitate the Children’s meaningful time with the other parent’s family including overnight time.
Education and Medical
15. The Parents will do all this necessary to ensure both are each named the Children’s:
(a) school or extra-curricular enrolments; and
(b) subject these Orders, medical, health and allied health service contact and/or consent authority.
16. The Parents each inform the other as soon as practicable of any hospitalisation, significant injury or health problem suffered by the Children and details of any treatment received or medication prescribed by the Children whilst under their respective care.
17. These Orders act as an authority for the Parents to request and obtain any educational or medical information, record or file relating to the Children that the Parents are each lawfully entitled to obtain.
Compliance with these Orders
18. To the extent not already provided for in these Orders, each parent do all acts and things including but not limited to signing all documents necessary to give effect to these orders.
Dated this day of 2021
“B”
Parenting orders – obligations, consequences and who can help
This information is for parents and other people, such as grandparents,
who are subject to a parenting order. It includes information,
pursuant to
section 65DA(2) of the Family Law Act 1975, about the legal obligations
created by a parenting order and the consequences that may follow if it is
contravened (breached).
This document also includes information, pursuant
to sections 62B and 65DA(3) of the Family Law Act, about:
■ courses,
programs and services in the community that can help people understand their
responsibilities and adjust to a parenting
order, and
■ the options
available to ensure that people comply with (follow) a parenting
order.
It is important that you read this information
You have
been given this document because a court has made a parenting order which
requires you to take certain steps.
Note – If this document
is attached to a parenting order, the information provided pursuant to section
65DA(2) of the Family Law Act forms part of the order.
It is important
that you understand the terms of the order and the obligations it creates. If
you are unsure about any of the terms
or obligations, ask your lawyer if you
have one. You can also seek legal advice about a parenting order if you were not
represented
at court.
Community courses, programs and
services
There are courses, programs and services in the community that
can help you:
■ reach an agreement with the other party
■
understand your parental responsibilities, and
■ adjust to and follow
court orders.
For more information about these options, go to
www.familyrelationships.gov.au, call 1800 050 321 or visit
a Family Relationship Centre near you.
A court may order you to attend a
post-separation parenting program. You must attend. If you fail to go to a
program as ordered, without
reasonable excuse, you may be in breach of the
parenting order and be penalised.
What is a parenting order?
A
parenting order is a set of orders made by a court about parenting arrangements
for a child. A court can make a parenting order
based on an agreement between
the parties (consent orders) or after a court hearing or trial. When a parenting
order is made, each
person affected by the order must follow it.
A
parenting order may deal with one or more of the following:
■ who the
child will live with
■ how much time the child will spend with each
parent and with other people, such as grandparents
■ the allocation of
parental responsibility
■ how the child will communicate with a parent
they do not live with, or other people
■ any other aspect of the care,
welfare or development of the child.
A parenting order can require the
parties to follow certain steps before applying to a court to change an order.
It can also state
the process for resolving disputes that arise from the
order.
If the parenting order provides that two or more people have equal
shared parental responsibility, any decision about a major long-term
issue in
relation to a child must be made jointly. This requires each person to consult
with the other person and make a genuine
effort to reach a joint decision.
Note – The status of a parenting order may be altered if a
parenting plan is developed by both parties in the future. For more information
about parenting plans, go to www.familyrelationships.gov.au, call
1800 050 321 or visit a Family Relationship Centre near
you.
Your legal obligations
■ You must do everything a
parenting order says. In doing so, you cannot be merely passive but must take
positive action and
this positive obligation includes taking all reasonable
steps to ensure that the order is put into effect. You must also positively
encourage your children to comply with the orders. For example where the order
states your children are to spend time with another
party, you must not only
ensure that the children are available but must also positively encourage them
to go and do so. There are
agencies in the community that can help you and your
family adjust to and comply with the order (see details above).
■ The
order remains in force until a new parenting order or parenting plan changes it
in some way.
■ Even if the needs or circumstances of you, the child or
the other party change, the court order applies until it is formally
changed by
a court or, in some situations, you enter into a parenting plan with the other
party.
■ Sometimes people talk to each other about changing
arrangements set out in a parenting order. These talks do not change the
order.
If you and the other party agree to change the arrangements, you
may enter into a parenting plan or apply for consent orders that
vary the
existing orders. For more information about consent orders, go to
www.familycourt.gov.au, call 1300 352 000 or visit a family law
registry near you.
If you want to change a parenting order and the other
party does not agree, family dispute resolution can help you and the other party
work through your disagreement. Resolving issues this way is less formal than
going to court and should cost less in money, time
and emotion. If an agreement
cannot be reached, you may consider applying to a court for
orders.
Legal advice
You should seek legal advice before
deciding what to do. A lawyer can help you understand your legal rights and
responsibilities,
and explain how the law applies to your case. A lawyer can
also help you reach an agreement without going to court. You can seek
legal
advice from a legal aid office, community legal centre or private law firm.
Court staff can help you with questions about court
forms and the court process,
but cannot give you legal advice.
Penalties for failing to comply with
a parenting order
A court can only penalise someone for failing to comply
with a parenting order, which has not been altered by a parenting plan, if
another person files an application alleging the person did not comply with the
order. After considering all the facts of the case
and applying the law, a court
may decide that:
1. the alleged contravention was not established
2. the
contravention was established but there was a reasonable excuse
3. there was
a less serious contravention without reasonable excuse, or
4. there was a
more serious contravention without reasonable excuse.
If a court finds
that you have failed to comply with a parenting order without reasonable excuse,
it may impose a penalty. Depending
on the situation and the type and seriousness
of the contravention, a court may:
■ vary the primary order
■
order you to attend a post separation parenting program
■ compensate
for time lost with a child as a result of the contravention
■ require
you to enter into a bond
■ order you to pay all or some of the legal
costs of the other party or parties
■ order you to pay compensation
for reasonable expenses lost as a result of the contravention
■ require
you to participate in community service
■ order you to pay a
fine
■ order you to a sentence of imprisonment.
In addition to
these orders, a court may also adjourn the case to allow you or the other party
to apply for a further parenting order.
The penalties are listed in
Division 13A in the Family Law Act. To view the Act, go to
www.federalcircuitcourt.gov.au. For more information about compliance,
see the fact sheet ‘Compliance with parenting
orders’.
Location and recovery orders
If you breach a
parenting order and you cannot be found, a court may make a location order. This
order requires other people or organisations,
including government departments,
to give any information they have about where you and the child may be
located.
If you breach a parenting order by failing to return the child
as required, a court may also make a recovery order. This is an order
issued to
the Marshal of the Court, all officers of the Australian Federal Police and all
state and territory police officers to
find and recover the child. The order may
also allow a search of any vehicle, vessel, aircraft or any other premises where
the child
may be found.
This fact sheet provides general information
only and does not provide legal advice. If you have a legal issue, you should
contact
a lawyer before making a decision about what to do or applying to the
Court. The Family Law Courts cannot provide legal advice.
Distributed in accordance with sections 62B and 65DA of the Family
Law Act.FSPO.0807.V5
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 under the pseudonym
Makinen & Taube is approved pursuant to s.121(9)(g) of the Family
Law Act 1975 (Cth).
JUDGE TAGLIERI
1 These proceedings concern two children, X (“the son”), who is 12 and Y (“the daughter”) who is 8 (collectively “the children”). Their parents are now engaged in the children’s lives and both participate in their care. The mother Ms Taube (“the mother”) is the primary carer and the father Mr Makinen (“the father”) spends regular time with the children. The proceedings commenced in September 2020 due to various parenting disagreements. However, to the parents’ credit, following participation in a Child Dispute Conference (“CDC”) and later preparation of the Family Report, they resolved parenting matters except about vaccination of the children.
2 Upon the matter coming before me on 9 August 2021, for a defended hearing confined to the issue of vaccination, I was invited to make orders by consent, in accordance with a consent minute signed by the parties and the Independent Children’s Lawyer (“the ICL”). I was also told that there remained need for a hearing in relation to the specific issue of vaccination of the children.
3 The hearing proceeded, after some initial discussion as to whether there ought be an adjournment, as the father's counsel suggested the Court should be concerned about taking judicial notice of certain facts. He suggested that a further affidavit from a paediatric specialist or general practitioner concerning vaccination may be obtained.
4 I drew counsels’ attention to having previously been informed of difficulty securing expert evidence, based on what had transpired during earlier directions hearings. I also noted that the ICL, Ms Mollross, had made an affidavit, which in part attested to the difficulties encountered in obtaining such expert opinion.[1]
5 Ultimately, the parties indicated that the hearing should proceed, but before it did, the parties were afforded some time to explore the potential for the parties to reach agreement about the vaccination issue. This arose because I had observed that the alternative orders sought by the mother, as set out in her case outline, had common elements with the orders sought by the ICL and the father in their case outlines.
6 Ultimately, the Court was advised that agreement could not be reached, as the mother had issues with the terms of a minute of proposed orders, with which the ICL and father were otherwise agreeable. The specific difficulties that the mother had with the terms of the minute were not clear. Her submissions suggested that she wanted to include more explicit terms about the process of consultation prior to any vaccination being given to the children.
THE ICL’S CASE
7 Counsel for the ICL relied upon:
8 These were all read into evidence unopposed and neither party sought to cross-examine.
9 The affidavit of Ms Mollross annexed a number of documents from the Australian government Department of Health website concerning immunisation. They included:
THE FATHER’S CASE
10 The father relied upon his case outline of 6 August 2021 and:
11 The orders sought by the father, if made, would give him sole decision-making concerning immunisation and vaccination of the children. However, they also include a requirement to give prior notice of recommendations made by the treating general practitioner and appointments for the immunisations to the mother. The orders that he seeks are quite detailed and explicit, but are silent about the mother being present at the time of vaccination and/or supporting the children and caring for them immediately after vaccination has been administered.
12 The father, like the ICL, relied upon the recommendations of the family consultant who prepared the CDC memorandum and the Family Report. The family consultant relevantly stated in the CDC memorandum:
23. The children not being vaccinated is contrary to the State and Federal Government health recommendations. Non-vaccinated children and adults can be excluded from services and travel opportunities due to the risk they pose to other people. [The mother] holds a firm opinion about the issue of vaccination based on the literature she has read but there seems to be no medical information to suggest [the children] are at any escalated risk of negative vaccine outcomes.”
13 In the Family Report relevant to the issue in dispute, the family consultant stated at paragraph 87:
The issue of the children remaining unvaccinated is the same as that noted in the 19 November 2020 memorandum.
14 The paragraph then repeats what had been previously stated at paragraph 23 of the CDC memorandum. It is, however, relevant to note that at paragraph 92 of the Family Report the family consultant also states:
It is suggested that the Court consider medical information that [the mother] believes is supportive of her vaccination position and the medical information that has informed the State and Federal Government health vaccination recommendations.
15 The father was cross-examined by counsel for the ICL and by the mother. His evidence was that he learnt that the mother was opposed to immunisation of the children at around the time the children were born. He said that at times he would attend to appointments with a community or postnatal nurse when the children were infants. At such times, he would discuss advice given by them about vaccinating the children, but the mother would not agree to vaccination.
16 The father also stated that on one occasion there was an outbreak of whooping cough going around at the school. He proposed vaccination against this, but the mother did not agree.
17 Otherwise, the father’s evidence was not particularly specific about what vaccinations he had asked be undertaken. It was put to him that it was the mother's unilateral decision not to vaccinate the children and he agreed.
18 He gave evidence that if the Court made orders that he be the one to make decisions concerning the children's vaccinations, he would discuss with the treating general practitioner what vaccinations were proposed and convey any of the mother's concerns to the GP for the purposes of obtaining advice and recommendations. Counsel for the ICL asked the father whether he was aware that the mother suffered an auto-immune disease and he stated yes, and that he would tell the children's general practitioner about that in discussions about vaccinations. He also elaborated to say that the mother had not initially agreed with doctors that she suffered an auto-immune disease related to her thyroid. When asked what vaccinations he considered the children should be immunised against, again, he was not particularly specific, but did mention tetanus, rubella and mumps.
19 The father was also cross-examined by the mother. The tenor of the cross-examination was directed to exposing that the father lacked any detailed understanding of what vaccinations may be proposed, the options for vaccination and the risks associated with various types of vaccine. The evidence of the father was simply that he did not have detailed knowledge or understanding but would take the medical advice given to him.
THE MOTHER’S CASE
20 The mother identified that she relied on and sought to have read into evidence paragraphs 19, 20, 21 22, 24, 25, 50 and 99 of her affidavit dated 27 October 2020. This evidence was read without objection. In summary, these passages of evidence are to the following effect:
(a) The father had not mentioned his opinion on vaccination after separation and her decisions about not vaccinating the children were based on medical publications and from speaking to medical professionals. She first became opposed to vaccination when having read the literature about the harm vaccinations can bring children. She believes that vaccinations are harmful on a short and long-term basis and that 2% of the Australian population is not vaccinated.
(b) That the father has never asked for a Medicare card nor told her that he would take the children to be vaccinated and that she does not consent to be vaccination.
(c) That during their relationship and in the past, the father has not expressed a wish to care for the children's health, nor take them to medical appointments or asked questions about what the children's general practitioner may have advised.
(d) That she has taken the children, particularly the son, to the hospital for medical attention on an emergency basis and has so followed medical advice concerning treatment of various conditions and illnesses.
(e) That she was the primary care of the children and still is, and that the father had little involvement in their care.
21 The mother also relied upon and the Court received into evidence unopposed the mother’s affidavit of 6 August 2021 and her unsworn affidavit of 9 August 2021. Counsel only received a copy of 9 August affidavit during the hearing, but after considering it counsel for the ICL and father did not object to it being received in evidence. The mother was later directed by my Chambers to affirm the affidavit and file it, which she has done. This affidavit annexes other medical/scientific articles. An issue in this case and for the Court's deliberations is what, if any, weight should be given to all the literature annexed to the mother’s affidavits.
22 In the affidavit evidence of 6 August 2021, the mother states that the Australian Immunisation Handbook reports “It is usually not possible to predict whether an individual group will react to a vaccine, or whether a reaction will be mild to serious”. She argues that this demonstrates that a vaccine is not safe for her children.
23 The mother also states that she has studied substantial amounts of published medical research (which is annexed as 2) which concludes that there is genetic susceptibility to adverse effects from vaccination in children who have a parent with an auto-immune disease. She states that she has such a disease of the thyroid, for which she needs to take lifelong medication.
24 The mother acknowledges that the illnesses for which children are routinely vaccinated against can be or could be in the past potentially serious illnesses:[2]
On the non-vaccination side, I acknowledge that most of the illnesses for which children are vaccinated against can, or could in the past, be potentially serious illnesses. However, I have read that all of those illnesses too have treatments (as I have read listed in Better Health Channel, Department of Health Victoria and elsewhere).
25 No information is provided about what this publication states about treatments and their efficacy. The mother also states that her investigations into government reports disclose that the brighter children[3] who are unvaccinated and who go on to suffer serious outcomes in the modern era range from 0 to negligible. The example of polio is given, having been declared eradicated in Australia in 2000. This statement appears to ignore that Australia has had compulsory vaccination for polio in children for many years.[4]
26 The mother states that about 5% of the population is unvaccinated and relies on published data in Annexure 3 to her affidavit. She has discussed vaccination with many general practitioners and health professionals, but none so far have attempted to provide additional information to her beyond the Australian Immunisation Handbook.
27 The affidavit of 6 August 2021 provides extensive evidence of her attitude against vaccination. In summary, her evidence is that she believes standard childhood vaccination programs constitute serious health risk to the children, because she has studied medical literature and research.
28 She says that the literature and research shows that it is widely accepted that vaccinations can cause serious illness involving auto-immune disorders/disabilities and neurological disorders as noted in the Australian Immunisation Handbook (marked 1). The mother further states that although the adverse effects from vaccinations are described as “rare” or “extremely rare” by the Australian government,[5] there is scientific research published around the world which suggests otherwise. The mother states that the adverse auto-immune or neurological disorders are not rare and that she has not found it to be disproven that a significant proportion of such cases are caused by vaccination. In support of her view, the mother annexed examples of scientific research she has studied as annexure 2.
29 The mother also states that:
I observe that this tends to be contrary to the earlier statement that the children’s schools have not raised the issue of vaccination status with her. It is hard to conceptualise how the agreement to keep the children from school in the case of an outbreak of infectious disease would arise without vaccination issues arising.
The Court observes that this statement assumes that all illness, side effects or other harm that may rarely occur from vaccination are untreatable. There is no evidence before the Court to this effect.
30 The mother also conveyed concern about the children being forcibly vaccinated and the risk of psychological harm to them from this. She identifies that the Australian Immunisation Handbook acknowledges this risk of psychological harm and highlights the requirements of obtaining informed consent.
31 The mother's affidavit of 9 August 2021 contains the following evidence:
(a) Vaccines are used in Tasmania and in Australia to prevent outbreaks of serious illnesses, and that 90-95% of Tasmanian children are vaccinated.
(b) The mother annexes a number of information sheets produced by the Australian Institute of Health and Welfare on which she has based her opinion. She concludes from this information that “most vaccine-targeted illnesses are very rare or eliminated in Australia”, and so that the children are unlikely to become seriously ill as a result of those illnesses. The mother annexes a number of peer-reviewed articles and sections of the Australian Immunisation Handbook on which she has based her opinions of the risk of specific harms involved with vaccination.
(c) That she has read government publications, which she does not specify, to the effect that “all relevant vaccine-targeted diseases today have treatments available”.
(d) That she accepts that natural exposure to pathogens builds the immune system, and that she does not fixate on hand washing to eliminate germs.
(e) That the father did not raise serious concerns with her during their relationship that the children were not immunised, and that it is her belief that his application is motivated not for concern for the welfare of the children, but rather by his attitude towards her.
32 The mother was cross-examined about her evidence by counsel for the ICL. The salient evidence she gave in cross examination is as follows:
(a) She has been vaccinated and she received her last vaccination at 23 years of age. She will not be vaccinated against COVID-19.
(b) She will travel to see family overseas and will not obtain vaccination prior to doing so.
(c) When asked why she agrees to treating illnesses/disease rather than vaccinating against them, she stated that vaccines are not medicine, and that when a child is sick that you go to the doctor and seek medicines to get the children better. There is no need to vaccinate for illness that the children are unlikely to contract and that the risk of vaccinating may induce ill effects and make them sick, which is not warranted.
(d) That the vaccines themselves present more harm to the children's health than the diseases or illnesses which they are intended to prevent. The mother was cross-examined about the son receiving an antibiotic and that in itself being associated with some risk of harm. The mother agreed, but stated that the antibiotics were in effect necessary to treat a greater harm.
(e) That the son had been treated with cortisone on one occasion and that she does react to the need for the children to be treated. The Court inquired whether her attitude to the children's health at risk of contracting illness was that it was reactive rather than preventative medicine, with which she agreed.
(f) The mother agreed to that there was a global pandemic concerning COVID-19, but stated the risk of contraction of that disease was very low in Tasmania and the children were at little risk of contracting the disease as it affected mainly the elderly and those who are immunocompromised. When asked whether she was aware that children in Year 12 were being recommended to have the COVID-19 vaccine in New South Wales, the mother stated she had not heard that.
(g) The mother was asked what she tells the doctor when she takes one of the children there when they are sick, and she said that the children mostly told the doctor what their symptoms are and that they can answer for themselves. The implication being that she does not speak for the children.
(h) The mother was asked whether it would be appropriate for there to be an order that either parent be able to vaccinate the children. Her initial answer was “yes, it would be a good thing”, but then elaborated and spoke about an incident where the daughter thought she had been bitten by a spider. When she went to the doctor it was recommended that she should have a tetanus injection, but later it was determined that she had not been bitten by a spider, but instead had contracted chickenpox. The mother stated that the daughter had become ill and the son had also contracted chickenpox, but in particular suffered with the illness having had a temperature and been kept away from school for three weeks. When it was put to her that the children could have been vaccinated against chickenpox, her response was that it was not a serious disease if contracted, although she acknowledged that it could be serious if contracted in an adult.
(i) The mother agreed that many children in Australia are vaccinated, but disagreed that they benefited from vaccination when it was put to the mother that it was necessary to vaccinate children to protect them against illnesses. She stated that it depended on the entire state of the child and if they were healthy. The risk of vaccination complications or ill effects outweighed the risk of contracting the disease. When it was put to the mother that for most part vaccination is safe, she agreed.
33 When cross-examined by counsel for the father, the mother’s evidence in summary was:
(a) She did not assert that it was improbable that the children would not contract any of the diseases for which vaccinations were available such as mumps, or meningococcal etc. However, she stated that if the children did get such a disease, it was treatable.
(b) It was put to her that her attitude was that cure of disease after it is contracted is better than prevention of the disease. Her reply was that it was a tough question and unfair. The Court ruled that she should answer the question because her attitude to the evaluation of competing risks for disease and vaccination was relevant.
(c) When it was put to the mother that tetanus is a horrible and painful disease and could lead to death, the mother disputed this and said that people do not die from tetanus and that it was treatable.
(d) Her opposition to vaccination first arose when in Western Australia. She had been told by a person with whom she was staying that a vaccinated child of another person had ended up having a severe mental and physical disability. She also said that she read a similar story to that effect when she was in Western Australia and these pieces of information caused her to dig further into the literature and research concerning immunisation.
(e) When it was put to the mother that the Australian Immunisation Handbook, a reputable government publication, indicated that reactions of a serious nature to vaccines were really rare, the mother appeared to acknowledge this.
(f) The mother was also cross-examined about her attitude to wearing a seatbelt. Initially she objected to answering these questions, but eventually did do so when the Court directed that it was relevant to her attitude to risks of harm. It appeared that the mother accepted that the risk of injury in a car accident warranted preventative action by wearing a seatbelt. She added that contraction of illnesses for which vaccines are available are not a concern for her children or society because they are treatable.
THE PARTIES’ CONTENTIONS
34 The submissions during the hearing and in the father’s case outline are to the effect that, the Court is to determine what is in the best interests of the children given the specific dispute by weighing the considerations in section 60CC of the Family Law Act 1975 (the two primary considerations and several other considerations).
35 He submits that as the bulk of current medical information supports immunisation and vaccination of children in the best interests of their health; and because the mother is so vehemently opposed to vaccinations of any kind, it is the father who should have sole parental responsibility in relation to immunisation of the children. Further, he contends that the mother has not filed any medical evidence or independent empirical evidence supporting her belief that immunisation is harmful.
36 The father also submitted, consistent with the ICL’s submissions, that the Australian government publications in evidence endorsed the benefits of immunisation and demonstrated that it was in the best interests of the children to be vaccinated. He submits the Court can take judicial notice that “the bulk of current medical information supports the proposition that immunisation/vaccination is in a child's best interests”.
37 In oral closing submissions, counsel for the ICL contended that the decision of the Court depended on an assessment of competing risks and the attitude of the parents to such an assessment. It was emphasised that the mother was correct that the risks of contracting diseases are low, but her position overall ignores that this is the case because mass vaccination for serious diseases in the community works.
38 Counsel for the father reiterated that risk of serious diseases should be prevented and that if vaccination is not given, the children will potentially be deprived of benefits such as “no jab no pay”. It was also submitted by counsel for the father that it was a matter of time before the Australian government would make vaccination against COVID-19 compulsory. For this reason, because orders of the Court should be final and look to the future, the orders sought by the father should be made.
39 In oral closing submissions, the mother stated that she disagreed that that the father had actively engaged in health care decision-making for the children. It was asserted that he did not have an opinion about vaccination prior to the proceedings and previously he merely agreed with her position.
40 When asked if and why decision-making about vaccination should be left to her, the mother’s reply effectively was that it ought to be a matter in which both parents should have a say, but that she would like the children to know all the information, and have the data available to them about risks of vaccination, and that their wishes should be heard.
41 During her closing submissions, the mother moved away from the proposition that there should be a restraining order preventing the father from vaccinating the children. Instead, she endorsed the alternative orders sought in paragraph 3 of her amended case outline provided to the Court and counsel. She also emphasised quite emotively that the children's views concerning vaccination should be respected and that their right to refuse a vaccination should be respected.
42 In oral submissions and in the case outline, counsel for the ICL submitted that certain facts should be judicially noticed from the documentary evidence referred to in [9] above.
43 The ICL referred the Court to the decision of the Kingsford & Kingsford [2012] FamCA 889 and the reasoning of Justice Bennett. The issue in that case was not whether to vaccinate children but the type of immunisations (traditional or homeopathic) to be used. Nevertheless, the reasons of Bennett J are instructive.
44 Central to the orders sought by the ICL was the proposition that there was a likelihood that either or both children would be exposed to a preventable disease, creating a risk of contracting it. Particularly COVID-19, given the existence of that pandemic in Australia and recent experience involving spread of the disease in NSW, including a New South Wales traveller coming to Tasmania who tested positive on 5 August 2021.
45 Counsel for the ICL submitted that the risks of infectious disease are ones that should be minimised by being immunised, albeit that he acknowledged that immunisations carry risks. He submitted these risks were on the evidence low, and accordingly it was not in the best interests of the children to make the injunctive restraint order sought by the mother.
46 Counsel for the ICL also submitted that the father should be entrusted with responsibility in respect decisions about the children's immunisations, but that otherwise both parents share parental responsibility relating to health of the children.[8] However, in oral submissions, he sought proposed orders in accordance with the minute referred to in [2] of these reasons, which provided otherwise.
FINDINGS AND DETERMINATIONS
47 It is plain from the evidence given by the parties in their affidavits and in cross-examination that they have diametrically opposed views and attitudes to whether the children should be vaccinated/immunised against disease. I find accordingly.
48 The mother admitted in cross-examination that there was a pandemic relating to COVID-19 in Australia currently. Although no specific evidence has been adduced about COVID-19, I take notice of the following facts:[9]
(a) That it is a disease affecting adults and children which causes personal suffering and illness and, at worst, death; and,
(b) That it is a contagious disease (particularly the Delta strain).
49 These facts have been regularly broadcast to the Australian public by State and Commonwealth government health officers since 2019 and are common knowledge. I was not invited to take judicial notice of any facts in support of the submission at [22(b)] of the ICL’s case outline, but consider I should do so because of the warnings and precautions given by State government health officers and publicised about this fact, which led to restrictions being introduced in the Launceston area recently.
50 I have been invited to take judicial notice of certain other facts set out in paragraph 18 of the ICL’s case outline. The father agrees that I may do so.[10] The mother submits I cannot do so at some length in her written case outline.
51 I have concluded that I only need to take judicial notice some of the facts referred to at [18] of the ICL’s case outline for the following reasons:
52 I have reviewed the literature relied upon by the mother, which is extensive and dense. The themes of many of the articles are that:
(a) Vaccines contain various concentrations of aluminium;
(b) Research and studies of various patient cohorts, mainly in France, have shown some potential association between the injection of vaccines containing aluminium into the deltoid muscle and the incidence of macrophagic myofasciitis (MMF), a condition understood to be an inflammatory mechanism affecting various parts of the body;
(c) The association between aluminium in various products/vaccines and neurological disorders is being studied, but is not yet well understood. Further research is required and there remain considerable unknowns;
(d) Some literature is to the effect that autoantibodies, inflammatory conditions and overt auto-immune disease can be caused by vaccines but are rare;
(e) Vaccination might trigger auto-immune, inflammatory or neurological disorders;
(f) Greater caution is recommended when approaching the vaccination of children as compared to adults because they are potentially more vulnerable; and,
(g) Most studies have involved limited epidemiological assessment and found inconclusive evidence of clear association between various vaccines and particular adverse events/diseases, and results of studies identify genes and variables other than vaccine as potential contributions to the occurrence of the diseases.
53 The last article forming part of 3 is a copy of a letter submitted to the Californian Senate in opposition to the passage of a compulsory vaccination Bill, which appeared in a 2015 edition of Vaccination Choice, a Canadian magazine. The object of the article was to persuade the Senate to a particular view and I do not consider it impartial. For this reason, I give it little weight.
54 The Commonwealth government’s recommendations about vaccination contained in the Australian Immunisation Handbook along with advice on its website can be seen to have developed and compiled over many years. It relies on published medical and scientific literature which is identified in the references section of Annexure LAM9 of the affidavit of Ms Mollross and 1 of the mother’s affidavit of 6 August 2021. This literature includes publications from widely known, reputable and leading scientific and medical journals such as the Lancet and the Australian Medical Journal. The recommendations/advice are also referenced to the World Health Organisation (WHO). WHO is commonly known to be a United Nations body responsible for international public health and I take judicial notice of this fact.
55 In my view, the literature which forms the basis for the Australian Immunisation Handbook ought to be given greater weight than the opinions expressed in the articles and literature annexed to the mother's affidavits. The former are the basis for public health policy of the Commonwealth and State governments for the benefit of the community. In any event, the literature relied upon by the mother does not materially differ and certainly does not support a contention that no children should ever be vaccinated.
56 Although it is not strictly necessary to take judicial notice of certain facts invited by the ICL, I consider it appropriate to do so because the facts are drawn from the Australian government health department, which I consider a reputable source and authoritative for the same reasons expressed in [55] above. I take judicial notice of the following:[11]
18. ...
(b) The Australian Government funds the National Immunisation Program (NIP), which provides free vaccines against 17 diseases.
(c) All diseases we vaccinate against can cause serious ongoing health conditions, and sometimes death. Immunisation is a safe and effective way of protecting you and your child against these diseases.
...
(g) Children and adults may need several doses of a vaccine to induce a protective immune response
(h) Rigorous processes ensure vaccine safety and effectiveness. By law, vaccines must meet strict manufacturing and production standards. Vaccine safety is tested at all stages of development and after vaccines are registered for use in people.
(i) Once vaccines are in use in the population, the Therapeutic Goods Administration and other organisations monitor their safety and effectiveness. Safety monitoring includes passive and active surveillance for adverse events following immunisation.
(j) The Therapeutic Goods Administration (TGA) regulates all medicines in Australia, including vaccines. Vaccines are rigorously tested in human clinical trials to confirm that they are safe and effective before they can be used.
(k) Before a vaccine is used in Australia, the TGA assesses its safety and effectiveness.
57 Given the parents’ diametrically opposed attitudes referred to at [47] above, it is highly improbable that the parents could, after a consultation process, reach a joint decision about giving the children any particular vaccine at any given time. For that reason, if no order is made specific to parental responsibility concerning vaccinations, by default the children will not be vaccinated against any disease unless:
58 Likely contravention proceedings and/or further proceedings relating to vaccination of the children is contrary to the principle of finality in decision-making concerning the best interests of the children.[12] If the father is required to bring a future application for vaccination of the children, until the application is determined, the children will in the interim be practically deprived from the capacity to prevent a currently prevalent disease, COVID-19.
59 I find that on the basis of the mother’s evidence that she has firm and strong bias against vaccination of any kind. On the evidence, I find that she initially developed a belief about harm of vaccination from hearsay information from a friend/acquaintance prior to the children’s birth. This belief has become entrenched consequent to her own interpretation of various publications which she has sought out and read.
60 Although she is a professional, she is not a medical practitioner or impartial expert witness. Her interpretation of the scientific and medical literature annexed to her affidavits in my view are not wholly supported by the literature itself when read in context and overall. This is apparent from comparing my general summation of some of the literature referred to at [52] and her generalised statements that vaccines are harmful and not safe. The literature she relies upon also does not support the view she appears to hold that generally her children should not be vaccinated against any disease because vaccines are harmful to them.
61 By her own admission, the mother accepted that adverse effects from vaccinations are rare and that the vast majority of the population in Australia is vaccinated against many previously widespread and infectious diseases. It can be inferred from this and the number of adverse outcomes reported in the literature annexed to the mother’s affidavits, that for the most part those vaccinated do not suffer catastrophic harm or chronic disease or illness.
62 The father has taken the view that the children should be vaccinated, but I find based on his evidence that he has limited and basic understanding about what vaccinations should be administered and why. The evidence also demonstrates and I find that the father is likely to have a more relaxed approach to the care and health of the children, while the mother is more analytical and particular. I make this finding by observing and listening to the parties in giving their evidence and also based on the content of the CDC memorandum at paragraphs 17 and 18 and of the Family Report, for example at paragraph 38.
63 While the mother may be more vigilant, active and diligent towards some matters relating to the children's health and hygiene, her entrenched views against vaccination demonstrate that she will likely push back and reject having the children vaccinated, even if it is deemed necessary or recommended by a medical professional.
64 The father will be attentive to although less fastidious and less informed about intricate details concerning the children's health and well-being, but he is likely to be more compliant with recommendations by a doctor or medical professional. Indeed, he appears to have been compliant with the mother's wishes that the children not be vaccinated for many years.
65 For the above reasons, I find that the father is more likely to accept and act upon expert medical advice based on commonly accepted and held opinion of peer medical professionals and established in public health policy and guidelines.
66 The mother has not adduced any evidence that the risk of auto-immune disorders, disabilities or neurological disorders from vaccination (adverse outcomes) is greater than the risk of the children contracting any particular disease which vaccination is likely to prevent. Rather, the literature she relies on simply identifies a potential for auto-immune, inflammatory or neurological conditions and other adverse effects in certain cohorts when vaccinated. They reference, for example, potential association between various elements such as aluminium or elements in MMR vaccines and adverse outcomes. The articles recommends further investigation and study of auto-immune and other reactions to vaccinations for the purpose of limiting the chance of persons developing adverse effects.
67 While the mother’s attitude against vaccination is based on her genuine beliefs, I do not regard her attitude or beliefs to be reasonable on all the evidence before me, including the scientific and medical literature she has adduced.
68 Although it is not strictly necessary to determine the application for the injunctive order sought by the mother, given her attitude by the close of the hearing as noted at [41], it is useful to identify why the Court would not have been prepared to make the order if it was pursued.
69 Final parenting orders, including those relating to parental responsibility, require orders to be made on the basis of the children’s best interests. In arriving at a decision about this, consideration is required of all matters in section 60 CC(2) and (3). In applying section 60 CC(2), section 60CC(2A) requires greater weight to the protection of a child from physical or psychological harm and being neglected. Further, section 60CC (l) and (m) are of importance in the circumstances of this case. It is necessary to follow the decision making pathway now well established by authority.[13]
70 If an injunctive order was made, further proceedings about vaccination would be likely given the reasons above at [47] and [51]. The capacity to have the children lawfully vaccinated if vaccination is recommended by a medical professional will be protective of the children’s physical and emotional health which is required by the Family Law Act 1975.
71 Further, where parental responsibility concerns a specific issue such as their health, the welfare of the children and what is in their best interests requires consideration of the longer term view and foresight about what harm may emerge in the future as the children age and mature. It requires preventative steps or actions by parents, not only reactive ones, in order to be protective of children's health and physical or psychological state.
72 Accordingly, it is not in the best interests of the children to make a blanket or even conditional injunctive order that prohibits a particular form treatment, in this case vaccination. It is not possible to contemplate every scenario that may arise depending on existence or prevalence of disease and variables which may influence whether vaccination should be given based on a child’s physical status. Such variables may include allergies and potential heightened risks due to genetic pre-disposition. These variables reasonably necessitate medical advice, but do not automatically mean vaccination should not be given. Equally, it is not in the best interests of the children to deny them from receiving vaccination that will prevent or reduce suffering from a disease that has been demonstrated to be avoidable from vaccination and is safe for them.
73 In arriving at the conclusions above, I also respectfully agree with the general sentiments of Bennett J in Kingsford at [120] and Hogan J in Arranzio & Moss[14] at [258].
What orders should be made
74 In the absence of expert medical evidence directed to the particular circumstances of the children, their individual health and condition, including whether they may suffer allergies or autoimmune conditions and the like, it would be wrong to make orders that particular vaccinations be given to the children. I had made observations along these lines during directions and case management hearings prior to the defended hearing.
75 The parties appear to have acknowledged these observations and the orders now sought by the father and ICL include a requirement to obtain recommendations before vaccination is given and to give prior notice to the mother of appointments for vaccination of the children. The alternative orders sought by the mother do likewise, but also include a requirement for more detailed consultation with her. The terms of the orders she seeks raise real potential for her to frustrate decision making because of her strong, inflexible and entrenched views against the need or benefit of vaccination.
76 In my view the orders to be made in the circumstances of this case should allow for effective decision-making concerning vaccination of the children both now and in the longer term. Orders that ensure a decision is taken about giving vaccines based on current medical advice is essential for the best interests of the children. This is consistent with maximising their welfare and being protective for the reasons above, also noting that qualified doctors owe professional duties of care that apply to giving vaccines as a form of treatment.
77 As the father is likely to heed medical advice about vaccination, he ought to have sole parental responsibility concerning this specific issue. This will ensure that vaccinations are given when it is warranted, taking into account all relevant considerations effecting the child and contemporary mainstream medical and scientific knowledge. It ought to limit further proceedings also.
78 There were very limited submissions and evidence from the mother about the son having some anxiety about vaccination, but the evidence was an assertion not substantiated by independent corroboration. It was her evidence that the children have been present when she has discussed vaccination with their general practitioner. This implies that her entrenched views contrary to vaccination may have had some influence on the children. This is concerning. In any event, there is no evidence of an independent nature about any of the son’s concerns and if they exist, I am satisfied a qualified general practitioner can address this satisfactorily.
79 Because the mother has been involved in the children’s health issues in the past and given her more particular personality, it is likely to be beneficial for her to be consulted. She ought to be permitted to give relevant history or raise concern in a balanced and succinct way before a general practitioner gives a vaccination. However, her input must not be allowed to frustrate the making of recommendations and giving of vaccinations by the general practitioner. For that reason, the terms of the orders should limit her capacity to provide feedback and her involvement. Further, if she is involved, a restraint is required to prevent undue influence of the children and to prevent her making anti-vaccination statements.
80 The orders the Court proposes to make are largely consistent with those sought by the father, but also accommodate the matters referred to at [76], [78] and [79]. There is also practical difficulty with subparagraph 4(f) of the orders sought by the father given the time he will be spending with and caring for the children. This may not have been considered fully. Before pronouncing final orders, I will hear from the parties in relation to the specific terms of the orders I intend to make.
Associate:
Dated: 16 August 2021
[1] [4] and [5] of the affidavit of
Ms Mollross filed 5 August
2021.
[2] Paragraph [6] of the
mother’s affidavit dated 6 August
2021.
[3] As the children are
reported to be.
[4] Annexure LAM8
of the affidavit of Ms Mollross dated 5 August
2021.
[5] Paragraph [3] of the
mother’s affidavit dated 6 August
2021.
[6] Paragraph 13 of the
mother’s affidavit dated 6 August
2021.
[7] Paragraph 15 of the
mother’s affidavit dated 6 August
2021.
[8] Paragraph [25] of the
case outline of the Independent Children’s Lawyer filed 6 August
2021.
[9] Pursuant to s144 of the
Evidence Act 1995
(Cth).
[10] At paragraph [17]
of the case outline.
[11]
Paragraph [18] of the case outline of the ICL dated 6 August
2021.
[12] Rice & Asplund
[1978] FamCAFC 128; (1979) FLC 90-725; SPS & PLS [2008] FamCACF 16 especially [56]
to [59] and citing In the Marriage of McEnearney [1980] FamCA 43 per Nygh
J.
[13] Goode and Goode
[2006] FamCA 1346; MRR & GR [2010] HCA
4.
[14] [2015] FamCA 544.
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