Duke-Randall & Randall [2014] FamCA 126 (12 March 2014)

Last Updated: 24 March 2014

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the father be discharged from any undertaking given to the Court such as would restrain him from immunising/vaccinating J Randall, born ... 2002, and L Randall, born ... 2004, (“the children”).

(2) That any existing Court Order restraining the parties, or either of them, from immunising/vaccinating the children be discharged.

(3) That the father be at liberty to immunise/vaccinate the children in accordance with the recommendations of the Single Expert, Professor K, or in accordance with the recommendations of the children’s treating general practitioner after consultation with Professor K or such other specialist medical practitioner recommended by Professor K.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duke-Randall & Randall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FILE NUMBER: PAC 2327 of 2011

Applicant

And

Respondent



And



Independent Children’s Lawyer

REASONS FOR JUDGMENT

BACKGROUND

1. The issue before the Court for determination in these proceedings is a discrete issue as to parenting in relation to the subject children. The father in the proceedings seeks to be released from restraints that prevent him from vaccinating and/or immunising the children and the mother seeks injunctive relief restraining him from so doing.
2. The proceedings were commenced by the Applicant mother in the then Federal Magistrates Court of Australia by application filed on 16 June 2011. In that application the mother sought orders as to parenting in relation to the children J, born in 2002, and L, born in 2004, (“the children”) and orders for property adjustment. The children were then aged eight and seven.
3. The Respondent father filed a Response on 10 August 2011.
4. The parties commenced to reside together in a de facto relationship in late 2001 and married in mid-2002. The children the subject of the proceedings are the only children of the parties’ relationship. The parties separated in April 2010 and were divorced in August 2011.
5. Interim Orders were made in these proceedings on 13 February 2012 that allocated the father sole parental responsibility for the subject children and for the children to live with him.
6. For reasons that are more fully set out later in this judgment, the father considers it appropriate and in the best interests of the children that they be vaccinated and/or immunised. The children have never been vaccinated or immunised, notwithstanding that they have both suffered from whooping cough.
7. The proceedings relating to the discrete issue for determination were listed for trial for three days to commence on 29 January 2014.
8. Currently, the father is aged 51 and the mother is aged 42.
9. The mother appeared at the trial unrepresented, as did the father. Ms Falloon of counsel appeared instructed by the Independent Children’s Lawyer.
10. At the commencement of the proceedings, the mother identified the documents relied on by her, as follows:
    1. Her Amended Initiating Application filed on 8 August 2011;
    2. Her Application in a Case filed on 12 February 2013 that relevantly and, inter alia, sought the following order:

That the Mother and Father otherwise be restrained from allowing the children to undergo any other form of medical testing or medical procedure, including vaccination, without the prior consent of both parents or Order of the Court.

100. Her Application in a Case filed on 4 December 2013 that relevantly and, inter alia, sought the following order:

That the father be restrained from vaccinating [the child J] born ... 2002 and [the child L] born ... 2004 pending outcome of the final hearing.

4. Her affidavit filed on 17 December 2013.

11. The father relied on the following documents:
    1. His response filed 10 August 2011;
    2. His affidavit filed 12 November 2013 in so far as it relates to the vaccination issue;
    100. His Application in a Case filed 12 December 2013 seeking release from the restraints on vaccinating the children; and
    4. His affidavit filed 24 December 2013.
12. The Independent Children’s Lawyer relied on the Chapter 15 Expert Report of Professor K that was admitted into evidence without objection as Exhibit A. The father also relied upon his report and did not seek to cross-examine the expert. The mother sought to challenge the report but because of her failure to comply with directions as to payment of the expert’s fees in respect of being called for cross-examination, the expert was not called and her report was not challenged.
13. The mother had not complied with trial or other directions and Orders made by Hannam J in the proceedings.

THE MOTHER’S ADJOURNMENT APPLICATION: REASONS

14. The mother shortly after 10.00 am informed the Court that she had filed in the early hours of the morning a further Application in a Case seeking, inter alia, an adjournment of the hearing on the discrete issue of immunisation and that she had filed affidavits in support of that Application in a Case.
15. The Court dismissed the adjournment application with reasons to be delivered concurrently with reasons for judgment in respect of the discrete immunisation issue.
16. The following are the Court’s reasons in respect to the adjournment application.
17. Two affidavits were filed by the mother electronically at 1.20 am and 1.45 am respectively on the morning of 29 January 2014 and the mother had forwarded to the Registry by facsimile transmission her proposed Application in a Case. In that application, filed 29 January 2014, the mother sought the following orders:
    1. That there be a stay of orders and proceedings in relation to the vaccination matter pending the outcome of the applicant’s Appeal, filed 7 January 2013 (sic), of the decision and certain orders made 10 December 2013 by Her Honour Justice Hannam.
    2. In the alternative:

2.1 that

(a) the applicant be granted leave to file and serve by a date on or after 14 February 2014 the report of Dr [C] that she was previously ordered to be filed by 8 January 2014, and

(b) Professor [S] be permitted to testify by video link, and

2.2 that

(a) Dr [C] be permitted to file a consolidated affidavit for the trial and include in her report and/or trial affidavit her expert knowledge and opinion in relation to risks of the children being vaccinated relative to their not being vaccinated,

(b) in the alternative, that Dr [C] be provided with further particulars by the Court as to her expert knowledge and opinion that is permitted to be given in her aforesaid report and/or trial affidavit, and

2.3 that the trial in relation to the vaccination matter be adjourned to a date that will be a reasonable period of time after:-

(a) the filing of the aforesaid report and/or consolidated affidavit of Dr [C] by 14 February 2013 (sic),

(b) in the alternative, the outcome is known of the applicant’s application of 6 January 2014 for a pro bono solicitor:

2.4 that the applicant be granted leave to file and serve by a date on or after 14 February 2014 a further trial affidavit containing further evidence in relation to the vaccination issue.

18. The mother provided to the Court a copy of her proposed amended Notice of Appeal in relation to the Orders made by Hannam J on 10 December 2013, seeking to appeal:
    1. Her Honour’s refusal to disqualify herself from further hearing of the proceedings; and
    2. Her Honour striking out the affidavit of Dr C as not complying with previous Orders of Collier J.
19. The only relevant issue enlivened by the Appeal was the fate of Dr [C’s] affidavit. As will be seen Hannam J had made further Orders facilitating the mother filing further affidavit evidence from Dr C that complied with the Orders made on 18 July 2013. She did not.
20. On the basis that the mother’s application was in substance an application for an adjournment, the mother was granted leave to rely on the late filed Application in a Case and her two affidavits filed early that morning in support thereof. It is to be noted that the first of such affidavits runs to 142 paragraphs and with annexures is 166 pages of material. The second shorter affidavit is in all a total of 42 paragraphs and 46 pages. The mother provided copies of these affidavits to the Independent Children’s Lawyer and the father shortly prior to the commencement of the hearing.
21. The father relied on his affidavits in response to the mother’s application and the Chapter 15 Single Expert report.
22. The matter was stood down to permit the father and the Independent Children’s Lawyer to consider the mother’s application and the lengthy material relied on.
23. The mother’s adjournment application was opposed by the father and the Independent Children’s Lawyer.
24. On 29 January 2014, having considered the evidence before the Court, the mother’s adjournment application was dismissed and the parties were advised that the reasons for dismissal would be included within the judgment of the Court’s reasons in respect of the vaccination issue. The Court’s reasons for dismissing the adjournment application are set out below.
25. As will be seen later, it is necessary for the purpose of putting the mother’s application for adjournment in context to set out in some detail the course of these proceedings.

THE PROCEEDINGS

Federal Magistrates Court

26. On 17 August 2011 Federal Magistrate Monahan, as he then was, made Orders by consent appointing Dr M as the single expert and that Dr M prepare an expert report in relation to the parenting proceedings. The matter was adjourned to 14 October 2011 for interim hearing.
27. On 14 October 2011 Federal Magistrate Monahan, as he then was, appointed an Independent Children’s Lawyer to represent the children J and L, and made Orders that, in summary, provided for:
    1. the children to spend supervised time with the father for a three hour period each Saturday, to be supervised by an outside agency, ...; and
    2. Dr G to be substituted as the single expert in place of Dr M.
28. Otherwise the interim hearing was adjourned to 22 December 2011.
29. On 25 November 2011 an Order was made by Federal Magistrate Altobelli, as he then was, on a without admissions basis and by consent that the father’s supervised time with the children each Saturday be for one hour with such Order to expire at 10.00 am on 22 December 2011, when the proceedings were listed before the Court for interim hearing.
30. The matter was relisted on 12 December 2011 for the release of Dr G’s report. The parties and the Independent Children’s Lawyer were ordered to be in attendance in person on that day.
31. On 12 December 2011 the parties were represented in Court and Dr G’s report was released to the parties and their legal representatives. The proceedings were adjourned to the following day, 13 December 2011, for mention and Orders were made regarding the attendance of the children at school and for the children to remain in the care of the maternal grandparents overnight.
32. On 13 December 2011 Federal Magistrate Monahan, as he then was, made Orders that provided:
    1. The listing of the matter for final hearing on 13 February 2012 for four days;
    2. The parties to attend a Conciliation Conference as to outstanding property issues;
    100. The filing and service of trial material by the Applicant mother by 30 January 2012 and the Respondent father by 6 February 2012, with no further affidavits to be filed without leave of the Court;
    4. Case Outline documents be filed by 9 February 2012; and
    5. The interim hearing on 22 December 2011 vacated
33. Otherwise, interim Orders as to interim parenting and interim property were made by consent. The interim Orders, in summary, provided for:
    1. All previous parenting Orders to be discharged;
    2. The children live with the father from the conclusion of school on 14 December 2011 until 12.00 noon on 9 January 2012;
    100. The mother ensure the children attend school on 14 December 2011 and be restrained from attending the children’s school on 14 December 2011 except for the purposes of delivering the children to school;
    4. From 9 January 2011 the children live with the parties on a week-about basis with specific Orders as to time and location of changeovers and for the parties not to contact the children whilst they are in the care of the other parent;
    5. The parties be restrained from allowing the children to undergo any medical procedure, counselling or hypnotherapy or for the children to attend any medical practitioner, except for urgent medical attention (with the exception of psychologist Ms Y);
    6. The father be restrained from consuming alcohol whilst the children are in his care and from leaving the children in the sole care of Mr E or his brother Mr R;
    7. The parties be restrained from discussing the proceedings and Dr G’s report within the presence or hearing of the children;
    8. Non-denigration orders as between the parties;
    9. The husband list the property at Suburb W for sale by private treaty, with any proceeds of sale after payment of mortgage and selling costs to be deposited into a controlled monies account in the name of the parties’ solicitors pending final determination of the property proceedings.
34. The Court further made Orders facilitating the children attending upon Ms Y, psychologist, once per week. These Orders were not consented to by the mother.
35. On the 12 and 13 December 2011 the mother was represented firstly by Mr Barry and then by Mr Dimock, solicitor.
36. The matter was adjourned to 13 February 2012 for final hearing.
37. On 6 February 2012 the matter was re-listed before Federal Magistrate Monahan, as he then was, for a compliance check prior to the hearing before Federal Magistrate Coker, as he then was. The mother on that day appeared in person, she having filed a Notice of Address for Service on 20 January 2012 advising that her previous legal representatives were no longer acting on her behalf.
38. The mother’s oral application for adjournment of the final hearing dates was refused and the mother was granted an extension of time to file her trial affidavits to 4.00 pm on 8 February 2012.
39. On 13 February 2012 the matter came before Federal Magistrate Coker, as he then was, for final hearing.
40. The mother again sought an adjournment of the final hearing dates. The Court ordered that:
    1. The final hearing be adjourned to a date to be fixed in Sydney;
    2. The father’s costs thrown away by reason of the adjournment were reserved to final hearing;
    100. Further interim parenting Orders were made by consent that provided for the father have sole parental responsibility for the children, for the children to live with the father and providing that the children spend no time with the mother;
    4. The father ensure the children attend upon a clinical immunology/allergy specialist in paediatrics as recommended by the Independent Children’s Lawyer and that the specialist be provided with copies of reports from Dr C, Ms H, Dr G and allergy test results from Dr A;
    5. Orders facilitating the children continuing to attend upon psychologist Ms Y;
    6. The father to enrol in and complete a Unifam Parenting After Separation course and an anger management course;
    7. The home at Suburb W be sold and, after various payments, the net proceeds be held in a controlled monies account; and
    8. The Court noted that Legal Aid had been granted to the mother.
41. On 3 April 2012 further Orders for interim property settlement were made by consent.
42. On 24 April 2012 the matter was transferred by Federal Magistrate Monahan, as he then was, with the consent of all parties to the Family Court of Australia, Parramatta Registry. Inter alia, the Court noted:
    1. The children were to see Professor K, Senior Consultant Physician Immunology and Allergy, at X Hospital on 1 June 2012 and that it was anticipated that a report from Dr K would follow that consultation, following which a further expert report of Dr G was envisaged;
    2. The Independent Children’s Lawyer was supportive of the mother having supervised time with the children following the expiration of her suspended time pursuant to Orders of 12 February 2012;
    100. The parties had agreed as to an exchange of gifts between the mother and the children, but not to telephone contact; and
    4. The parties had entered into interim consent Orders that adopted the recommendations of Dr G in her report released on 12 December 2011.

The Family Court

43. On 14 June 2012 the matter was before a Registrar in the Family Court. The mother was represented by Mr Benatatos, solicitor. Orders were made that the matter be listed for a five day hearing, not before October 2012, and the mother was ordered to advise the father within 21 days whether she objected to the report of Mr U. The matter was listed for further directions on 6 September 2012.
44. On the 22 June 2012 Professor K, the single expert allergy specialist, swore her affidavit attaching her report dated 1 June 2012.
45. On 6 September 2012 the matter was again before a Registrar. The mother was represented by Ms Wulf, solicitor. The proceedings were adjourned for further directions to 11 October 2012.
46. On 21 September 2012 an updated expert report of Dr G was released to the parties and their legal representatives.
47. On 11 October 2012 the matter was again before a Registrar. The mother was represented by Mr Benatatos, solicitor. It was ordered that any application for leave to rely on adversarial experts be filed and served within 28 days and the matter was adjourned to 14 December 2012.
48. The mother then filed an Application in a Case seeking to rely on various experts.
49. On 14 December 2012 the matter was again before a Registrar. The mother was represented by Ms Wulf, solicitor. It was ordered that:
    1. The mother file and serve any Amended Application in a Case by 21 January 2013;
    2. The father file and serve a response and affidavit by 11 February 2013;
    100. The matter be listed for possible interim hearing on 18 February 2013;
    4. It was noted that issues that may be raised on the interim hearing include an injunction for immunisation of the children, leave to rely on adversarial expert reports, interim orders for the children to spend time with the mother, schooling arrangements for 2013 and capital gains tax in respect of property matters; and
    5. The parties’ costs of the day were reserved.
50. The mother filed an Application in a Case on 12 February 2013 in which she sought orders restraining the father from vaccinating the children, other than with the consent of both parties or Court Order.

11 March 2013

51. The proceedings were listed before the Registrar on the 11 March 2013.
52. The application was referred to Collier J that same day in respect of the mother’s interim application to spend time with the children, her application as to additional experts she sought to call on the issue of immunisation, spousal maintenance and financial disclosure. The mother was not represented.
53. Collier J made interim Orders by consent:
    1. Suspending the Orders of 13 February 2012 as to the children spending no time with the mother and the various restraints upon the mother;
    2. For the mother to spend alternate weekends from Friday after school to Monday before school with the children; and
    100. On a without admissions basis placing a restraint on both parties from vaccinating the children prior to the immunisation issue being determined.
54. Collier J further ordered:
    1. The matter be stood over to 11 April 2013;
    2. The mother notify the Department of Human Services and the Human Rights Commission of her application that the children not being immunised be considered a special medical procedure case within the meaning of the Family Law Rules 2004 (Cth);
    100. The mother file a financial statement within 14 days;
    4. The spousal maintenance application be adjourned for mention 11 April 2013;
    5. The matter be placed in the pool awaiting allocation for trial dates, allocating provisionally 5 days; and
    6. The matter have such priority as can be afforded to it.

11 April 2013

55. On 11 April 2013 the mother again appeared unrepresented. Collier J made final Orders by consent as to property matters and dismissed the mother’s spousal maintenance application.
56. Inter alia, Collier J ordered the mother to file and serve a fresh affidavit by Dr C setting out precisely what that doctor says is required and why it is required in respect of her testing of the children in relation to vaccinations.
57. The matter was adjourned to 30 April 2013 for further mention with the mother ordered to attend in person.

30 April 2013

58. On 30 April 2013 the proceedings again came before Collier J.
59. Collier J ordered:
    1. The matter be adjourned for interim hearing to 19 July 2013 as to what witnesses were to be called and the evidence anticipated to be given by those witnesses;
    2. The mother serve her submissions upon the Human Rights Commission within three weeks;
    100. The mother file and serve Dr C’s affidavit within seven days and her affidavit in respect of Professor K by 14 June 2013;
    4. In the event of the mother not complying with the given timeframes, the affidavits shall not be filed thereafter without leave of the Court

and Collier J noted that the hearing on 19 July 2013 (subsequently moved to 18 July 2013) was only in respect of preparation of the immunisation issue for trial.

18 July 2013

60. On 18 July 2013 the interim hearing proceeded before Collier J. The mother was not represented. Orders were made that provided, in summary:
    1. Granting leave to the mother to rely on her affidavit filed late;
    2. A determination that the matter is not a case to which the special medical procedures of the Family Law Rules 2004 (Cth) apply;
    100. Professor K remain the Chapter 15 single expert in the proceedings;
    4. The mother’s proposed witness Dr L be entitled to file an affidavit on the mother’s assurance he will be available for cross examination;
    5. The mother’s proposed witness Dr B be entitled to file an affidavit on the basis that she is available in a manner approved by the father’s legal representatives to give evidence;
    6. The mother’s proposed witness Dr S be entitled to file an affidavit on the basis that he is available in a manner approved by the father’s legal representatives to give evidence;
    7. The mother’s witnesses be called at her own expense and the testing of the children by Dr C be done during the children’s time with the mother;
    8. Dr C be permitted to carry out Bioscreen Faecal Microbial Analysis, DNA SNPS, Serology Blood Test T cell subsets and two urine analysis tests on the children, but that Dr C not be permitted to carry out food testing on the children;
    9. The testing by Dr C be completed by 13 September 2013;
    10. By no later than 11 October 2013 Dr C provide to the legal representatives of the parties and the Independent Children’s Lawyer a report setting out the results of her testing;
    11. Professor K and Dr C then confer by no later than 8 November 2013 and prepare a joint statement setting out areas of agreement and reasons for any areas of disagreement with the parties to share the cost of the professor and doctor equally with payment to be made to the Independent Children’s Lawyer not less than seven days before the conference of experts;
    50. The mother be liable in the first instance for the costs of the witnesses in the United States and the testing undertaken by and subsequent report of Dr C, with the issue of the father’s contribution, if any, to those costs reserved for trial;
    13. Liberty to the parties and the Independent Children’s Lawyer to relist proceedings; and
    14. The matter be adjourned for mention before Hannam J on 14 November 2013 for a readiness check and for final hearing commencing on 2 December 2013 for seven days.

15 October 2013

61. The matter was relisted before Hannam J on 15 October 2013 by the Independent Children’s Lawyer in accordance with the leave given by Collier J. The mother was represented by Ms Wulf, solicitor.
62. Hannam J made Orders that:
    1. Confirmed the readiness check on the 14 November 2013;
    2. Discharged the Orders made by Collier J on 18 July 2013 regarding the joint conference and report of Professor K and Dr C;
    100. Required trial affidavits to be filed and served by 11 November 2013;
    4. Required the father to file a financial statement and documents verifying his financial position and submissions as to his capacity to fund expert witnesses for cross examination within seven days;
    5. Required the mother’s legal representative to provide to the Independent Children’s Lawyer details of the mother’s grant of legal aid within seven days

and Hannam J noted that the mother intended to pay for Dr C’s report on 18 October 2013, regardless of cost.

14 November 2013

63. On 14 November 2013 the mother was represented by Ms Wulf, solicitor. Hannam J ordered:
    1. The trial dates be confirmed;
    2. The question as to whether parenting and immunisation issues are to be severed be revisited at the commencement of trial;
    100. Leave be granted to the father to rely upon two trial affidavits filed out of time;
    4. The Independent Children’s Lawyer not make arrangements at this stage for Professor K to be available for cross examination at the hearing;
    5. The mother file and serve a separate affidavit as to the immunisation issue

and Hannam J noted:

6. Dr G was available for cross examination on 11 December 2013;
7. The hearing of the parenting issues would commence on the dates allocated;
8. Issue as to payment of the experts was yet to be determined;
9. Ms Wulf, solicitor, is not representing the mother in respect of the immunisation issue; and
10. The mother had not complied with previous trial directions, but she has indicated affidavits are being prepared, and that the mother will require the Court’s leave to rely on material filed out of time.

9 and 10 December 2013

64. On 9 December 2013 the final hearing was to commence before Hannam J. The mother was unrepresented.
65. The mother sought an adjournment, an interim restraint upon the children being immunised and that Hannam J disqualify herself from further hearing of the proceedings.
66. On 10 December 2013 Hannam J made Orders which, in summary, provided:
    1. The mother’s application for adjournment of the final hearing granted on the basis of a pending determination of an appeal against the termination of the mother’s legal aid grant;
    2. The mother’s application that Hannam J recuse herself from further hearing of the proceedings be dismissed (with reasons to be provided at a later date);
    100. The mother file an Application in a Case in relation to the oral application for other orders sought by her;
    4. The mother file an Amended Initiating Application by 28 January 2014;
    5. Dr C’s affidavit dated 13 November 2013 be struck out as it did not comply with Orders of Collier J of 18 July 2013, with the mother to file and serve a report from Dr C complying with his Honour’s Orders by 28 January 2014;
    6. Trial affidavits of Dr B and Professor S, if to be relied upon, be filed and served by 28 February 2014; and
    7. Current financial statement by each of the parties be filed and served by 28 February 2014.

The Court also noted that further trial directions will be made for the mother to file a consolidated affidavit and if the directions are not complied with the matter will proceed to hearing on an undefended basis, and that on the next occasion the Court will determine whether Professor S and Dr B are to be witnesses in the trial.

67. Hannam J further ordered:
    1. The father’s Application in a Case that he be released from the restraint as to vaccinating the children be adjourned to 17 December 2014; and
    2. The father file and serve such application and affidavit in support, together with a response to the mother’s Application in a Case filed 4 December 2013 seeking injunctions, by 13 December 2013.

17 December 2013

68. On 17 December 2013 the mother appeared unrepresented and Hannam J delivered reasons for Judgment in respect of her Honour’s refusal to recuse herself and ordered that the immunisation issue be severed from the balance of the proceedings and adjourned the hearing of the immunisation issue to 29 January 2014 for three days.

20 December 2013

69. On 20 December 2013 the proceedings were before Hannam J for directions. The mother appeared unrepresented.
70. Hannam J, inter alia, made Orders as to the trial of the immunisation issue which, in summary, provided:
    1. The parties file and serve a consolidated affidavit of evidence in respect of the immunisation issue by 8 January 2014;
    2. The mother file Dr C’s affidavit by 8 January 2014 complying with Collier J’s Orders of 18 July 2013;
    100. Neither party may rely upon any document filed other than in compliance with the Court’s Orders without leave;
    4. The mother arrange for Dr C to be available for cross examination on either 29 or 30 January 2014;
    5. For the Independent Children’s Lawyer to provide Professor K with a copy of Dr C’s affidavit for Professor K’s consideration prior to giving evidence, with that affidavit to be provided to Dr K by no later than 15 January 2014;
    6. The parties to pay equally the costs of Professor K in considering Dr C’s affidavit and her attendance at Court to give evidence; and
    7. It was noted that Professor K was available to attend Court to give evidence on 31 January 2014.

THE MOTHER’S ADJOURNMENT APPLICATION

71. The mother provides in her first affidavit in support an extensive and historical history of the children and their health issues as perceived by her, including attaching the report from Dr C that was previously struck out.
72. Much of the mother’s first affidavit is comment, submissions, irrelevancies and matters in respect of which the Court could afford little weight, if any at all.
73. The mother takes issue with some aspects of the Chapter 15 Expert report but acknowledged to the Court that she had done nothing on her part to have the expert available for cross examination as ordered.
74. The mother acknowledged that she had failed to comply with Orders for filing her affidavit material by 8 January 2014, claiming that a significant amount of highly relevant evidence had accumulated over the last 11 years but that she had severe limitations in respect to time, skills and resources. The mother did not specify, with any particularity, the limitations referred to.
75. The mother’s second affidavit refers to some of the litigation history set out above. She acknowledges that the vaccination first became an issue in December 2011 when the father informed her of his intention to vaccinate the children, then aged nine and seven.
76. The mother asserts that delay in her evidence has been occasioned by the Court not permitting medical evidence as to the children’s susceptibilities to being adversely affected by the vaccination procedure. Yet the Orders of the Court set out above are clear and unequivocal as to what was permitted.
77. The mother asserts that Dr C was unable to prepare her fresh affidavit due to time constraints, yet the nature of the affidavit permitted by the Court from Dr C has been known to the mother since 18 July 2013.
78. The mother says that in October 2013 she was aware that her grant of legal aid did not extend to the vaccination issue. Three months later and on 6 January 2014 the mother sought pro bono assistance from the Law Society of NSW. That application, she asserts, has not been determined.

The father’s position

79. The father opposes the application. His position is that it is in the best interest of the children to have the discrete issue determined.
80. The father proposes that the children be vaccinated in accordance with Professor K’s recommendations.
81. The child L was doing gymnastics at a Police Citizens Youth Club until September 2013. Upon trying to book the children in for school holiday activities the father was required to disclose the children’s vaccination status. He was informed that absent the children being vaccinated they could not attend holiday activities and the child L was also excluded from gymnastics.
82. His subsequent enquiries revealed that the children were excluded from YMCA holiday care if not vaccinated but they have been able to participate in other activities at present as the father has not yet been required to disclose their vaccination status.
83. He says that if he had not been restrained by Court Order, he would have then attended to having the children vaccinated.
84. The father and children were invited to attend a close friend’s wedding in Indonesia in September 2013. The father, a regular traveller to Indonesia, was aware that the children would need to be vaccinated for tetanus, typhoid, hepatitis A and B, Japanese encephalitis and rabies, in addition to having “routine” vaccinations as recommended for them in Australia.
85. A member of the father’s family has expressed reluctance to allow her children contact with the subject children.
86. The children’s school, P Primary School at Suburb D, has told the father that it requires the children to be vaccinated in accordance with NSW Health Guidelines, otherwise the parent must complete a conscientious objection form. The father is not a conscientious objector and is concerned as to the children being excluded from school during any infectious outbreak.
87. By reason of his enquiries the father is anxious about the children not being vaccinated and seeks to have them vaccinated as soon as allowed.

DISCUSSION: THE ADJOURNMENT APPLICATION

88. In Jarrah & Fadel [2014] FamCAFC 14, the Full Court of the Family Court of Australia refused to allow the husband a further adjournment of the final hearing. Ainslie-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:

... delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. ... It would impact on other litigants seeking a resolution of their cases.

89. Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in section 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):

... that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

90. Her Honour went on to say at [11]:

... The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.

91. Their Honours Murphy and Aldridge JJ agreed with her Honour’s reasoning and that the application should be dismissed. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young children, in that case. His Honour was of the view that given the history of the litigation it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
92. In the earlier decision of Farmer and Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:
    197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:

If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential .... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)

See also Reynolds v Reynolds (1973) 1 ALR 318 per Mason J at 322-325; M v M [1988] HCA 68; (1988) 166 CLR 69 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 76; U v U [2002] HCA 36; (2002-03) 211 CLR 238 per Hayne J at 285 and JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 per Kirby J at 1332.

93. The Full Court then said:
    201. We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:

Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best interests of the child by encouraging parents to focus on their parenting responsibilities. (emphasis added)

202. Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.

...

204. Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. At paragraph 357 of the revised explanatory memorandum, it was said: “This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way”.
205. Section 69ZQ(1) of the Act provides that in giving effect to the principles in s 69ZN the Court must:

(a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and

(b) decide the order in which the issues are to be decided; and

(c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and

(d) in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and

(e) make appropriate use of technology; and

(f) if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and

(g) deal with as many aspects of the matter as it can on a single occasion; and

(h) deal with the matter, where appropriate, without requiring the parties' physical attendance at court.

206. In the revised explanatory memorandum at paragraph 362 it was said that s 69ZQ(1) of the Act:

lists a number of general duties that the court must carry out in giving effect to the principles in new section 69ZN. These will ensure that cases are actively managed in a way that encourages parents to focus on their child and on their ongoing relationship as parents and without undue delay or formality. They will also ensure the proceedings are not protracted, and should help to reduce the overall costs. (emphasis added)

...

210. In the revised explanatory memorandum at paragraph 402 it was said that s 69ZX(1) “supplements the duties in section 69ZQ which must be followed in giving effect to the principles and to ensure active management of children’s matters to minimise the effect of the proceedings on children and to promote a cooperative parenting relationship between parents”.

...

94. As has been said these are parenting proceedings as to a discrete issue, that being the prospective vaccination or immunisation of the subject children. Under the provisions of the Act, the Court is given wide powers to, as it were, to get to the nub of the issues in the best interests of the subject children.
95. The mother has consistently been dilatory in her compliance with Orders of the Court and mostly has been guilty of noncompliance. There is a strong inference that she has done so to suit her own end that the issue as to vaccination be delayed for as long as possible. There is no certainty that the mother will comply with any further orders or directions made in the event that the hearing was adjourned. The inference from the litigation history is that she will not and will continue to procrastinate and delay.
96. The proceedings have had no less than three sets of trial dates fixed.
97. The issue is a discrete one touching upon the prospective health arrangements for the subject children. It is an issue that, in the best interests of the children, needs to be determined without further delay. The prejudice to the father in having the matter adjourned cannot be addressed by a costs order and he quite properly perceives that the matter should be determined in the interests of the children, particularly as to their protective health circumstances.
98. The father’s position is supported by counsel for the Independent Children’s Lawyer.
99. In all of the circumstances, the mother’s Application in a Case filed on 29 January 2014 was dismissed.

THE PRIMARY ISSUE: IMMUNISATION

100. Consequent upon dismissal of her application for adjournment, the mother sought to rely on her first affidavit filed in support of that application in the hearing of the primary issue. The nature and content of that affidavit is referred to above. The affidavit was not filed in compliance with trial directions. The mother’s application was refused and the affidavit struck out.
101. The mother adduced no other evidence at trial, save for documents admitted into evidence.
102. The father’s affidavit evidence as to the primary issue is set out above.

The father’s oral evidence

103. Initially the mother did not seek to cross examine the father in relation to the issue for determination. However, following a short cross-examination of the father by the Independent Children’s Lawyer, the mother then sought and was granted leave to cross examine the father. She did so at some length.
104. The report of the single expert recommended that they be further skin testing in relation to the child J in respect to a possible reaction to nuts. A second visit took place one or two months after the first visit, at which time it was the father’s understanding that Professor K was satisfied that the child J was not anaphylactic, but at some future date further testing in hospital could be undertaken, if necessary.
105. The father confirmed in his oral evidence that it was his proposal to follow the catch up and vaccination programme recommended by the single expert. In the event that he was able to travel overseas with the children, specifically to Indonesia, the father would seek guidance from a medical professional or from the single expert in relation to appropriate protective vaccinations.
106. The father acknowledged that during his cohabitation with the mother there was a lot of debate about the issue of vaccination and that during the marriage he had agreed with the mother’s anti-vaccination view for the sake of peace in the household. He was, he said, simply unable to negotiate with the mother on this issue during cohabitation and still could not. It was and still is his view that appropriate vaccination is important for the health and well-being of the children.
107. In cross examination by the mother the father acknowledged that in 2006 he had sent to his brother an email relating to the dangers of vaccination on the basis of information provided by the mother.
108. The father acknowledged that in about 2003 the child J suffered from episodes of severe eczema. The mother, he said, preferred natural methods of treatment. The mother conceded that the eczema issue for the child J was now all but resolved. To the father’s observation the child L had some eczema as a toddler but he had seen no evidence of eczema on her body recently.
109. The father acknowledged that he had seen the results of a Dr A’s skin prick tests carried out on the two children in October 2010. There was no evidence before the Court as to any specialist qualifications of Dr A. The father was asked by the mother to attempt a numerical comparison between the results in October 2010 and the results contained in the report of the single expert. The father was unable, of course, to express any clinical opinion arising from the two sets of tests.
110. The mother put to the father suggestions of injuries sustained by the children whilst in his care. The mother enquired of him as to whether he was concerned that they could contract tetanus. The father said that he had always been concerned that they needed to be vaccinated for tetanus.
111. The mother asked the father what he would do if the children had some adverse reaction to vaccination. The father responded that he would seek medical advice.
112. When asked as to whether the child J had an EpiPen, the father acknowledged that he was provided a bag with an EpiPen in about mid 2010. He had no idea who had prescribed the EpiPen for the child as it was procured through the mother’s instigation. The father received an email from the mother in September 2013 informing him that the child’s EpiPen had expired in May 2012. The father responded that “I do not believe [J] and needs an EpiPen, I have seen no sign of any allergic reactions or breathing problems, that warrant one. I will seek advice from Dr [K], or an alternate specialist....”.

Evidence of Professor K

113. The single Chapter 15 expert report of Professor K was marked into evidence, without objection, as Exhibit A.
114. The child J was interviewed and examined on 1 June 2012 in the presence of his father and his younger sister. A history was obtained by the Professor from the father with some assistance from the child. It is noted that historically the child was affected by atopic dermatitis as an infant and young child. This dermatitis was generalised and severe, but managed at home with no hospitalisations.
115. The child has in the past had consultations with dermatologists, naturopaths and an allergist, Dr A. At the age of three years J was seen by Dr A, who placed a child on a low salicylate diet. By the age of five, the dermatitis had settled, and at the time of examination the child did not recall having any further problems with his skin.
116. During the time on this low salicylate diet the child was given supplements and consumed rice milk and soy milk, avoided nuts and kept to a basic low salicylate diet. Despite the settling of his condition the child was kept on a restricted diet until early 2012, when his diet was normalised completely.
117. At the time of examination, the child was living with the father and was having a wide variety of foods. He had had no problems whatsoever from the liberalisation of his diet and had had no return to any atopic dermatitis. At the time of examination, the only existing dietary restriction is being nut-free, although there was some question, noted the Professor, that J had had exposure at least to some nuts with no problems. The child had no history of asthma, denied any symptoms of allergic rhino conjunctivitis and does not snore.
118. The child had previously had a bout of whooping cough, which was confirmed serologically.
119. It was noted that the child had never been immunised.
120. Skin prick testing with a range of allergens was performed on the child. The Professor noted that, despite of the child’s reactivity to a number of aeroallergens, there was no evidence of upper or lower airway problems and that these positive reactions were a manifestation of his atopic state as is the history of atopic dermatitis.
121. The Professor noted that one question remaining was whether or not the child has clinical reactivity to any nuts. On skin testing the child responded to cashew nuts only. In previous testing there was a question about pine nuts as well and it was proposed that further skin testing with nuts not already tested be done at his next visit. However, noted the Professor, with the negative skin testing to peanut, almond, hazel nut, pecan and macadamia, there is no logical reason why these nuts need to be avoided and the child could have them as he wishes.
122. The child did not present with any known contraindication to vaccination.
123. The child L was interviewed and examined in the presence of her older brother and her father on 1 June 2012.
124. From early in her life until about mid-2011 the child was managed on a low salicylate and low amine diet. The father informed the Professor that there appeared to be no overt reason for this except that her older brother was following such a diet as well. Since living with the father, the child’s diet has been completely liberalised and she now eats well with a variety of food choices and was enjoying this very much.
125. The child, unlike her older brother, has never had atopic dermatitis or eczema. She has had intermittent mild asthma. She has Ventolin at home for use as needed. Recognised triggers were identified as cold air and exercise, but she can go for a week or two at a time without need to recourse to her Ventolin. On interview, the child and the father indicated that she had not used Ventolin in the last five months.
126. The child has significant and allergic rhinitis with her nose being quite congested and she being continuously snuffly. She can have a dry cough at times. This condition had not been treated at the date of consultation.
127. The child had previously confirmed whooping cough but no other illnesses.
128. It was noted that the child had also never been immunised.
129. On examination, the Professor observed a well little girl, although she was mouth breathing and had nasal speech. Inspection of the child’s nose revealed partial obstruction of the nasal passages bilaterally with swelling and pallor of the inferior turbinates and mucoid secretions were present. Chest examination was completely clear and the child’s skin was completely clear.
130. Skin prick testing with various allergens was conducted. The child has a single sensation to dust mite, which was in keeping with the finding of a perennial allergic rhinitis. It was recommended that the child trial an intranasal steroid spray for this condition. The diagnosis of perennial allergic rhinitis is not, concluded the Professor a contraindication to immunisation and she found no reason why the child could not be fully immunised
131. The Professor concludes that neither child presents with any known contraindication to vaccination. A personal history of allergies, except for some specific instances, is not a contraindication for vaccination, nor is a family history of adverse reactions to vaccines. Specific instances include egg allergy, known sensitivity to neomycin or streptomycin and gelatine allergy. Children with impaired immunity or immunosuppression should not be given live vaccines, but it was the Professor’s opinion that this did not apply to the children in question.
132. The children, reports the Professor, are both healthy and able to receive vaccinations as per the recommended vaccination schedule. The children do not have any increased risk of side-effects or adverse events than the general population. Therefore, whether or not to go ahead with vaccination remained a philosophical question for those making the decision and not one based on any increased risk in this case.
133. The Professor’s report recommends a catch up schedule for vaccination for the children.
134. The report also considers in some detail issues of concern raised in the report, including the presence of egg allergy, concerns about the links between vaccination and allergies, and the question of vaccination and autism.

Other relevant evidence

135. The Police Citizens Youth Club enrolment policy reveals that a copy of a child’s immunisation history must be provided to the service on enrolment.
136. A discharge referral summary from the Z District Hospital in relation to the child L reveals that the child attended at the Emergency Department of that hospital on 21 August 2007 with moderate respiratory distress. The child was treated with medication and left prematurely with the mother citing her concerns over the child’s “multiple food allergies”.
137. A report from Dr A reveals that the child J was seen on 2 May 2003 as the child had developed eczema around the nappy area and this had become generalised and severe. The report notes that management of the young child’s condition had involved avoidance of egg and reduction of salicylate containing foods. The child was skin prick tested in 2010 and there was a strong reaction to pine nut and it was decided to arrange for an EpiPen due to the unpredictable nature of nut allergy. It was noted that the child’s reactivity to egg had diminished and he could tolerate it in cooking but uncooked egg white triggered a “local urticarial reaction” on contact such as had occurred with sesame and cashew nut. Later testing by Professor K revealed no reaction to egg yolk or egg white.
138. The child L, on testing by Dr A, had a potentially significant reaction to house to dust mite, as was later confirmed by Professor K.

DISCUSSION: THE PRIMARY ISSUE

139. The issue of whether or not these children are to be immunised arose during these proceedings.
140. As has been already set out in the history of the proceedings above, once the mother raised the issue of having the parents restrained from immunising the children pending the Court determining the matter, the father gave an undertaking that he would not do so and later the parents were both restrained by an interim Court Order to the same effect.
141. The father’s evidence is that he has not previously acted in respect of immunising the children because of the mother’s strong views against immunisation. However, he now wishes to do so.
142. Since the mother has raised the immunisation issue, she has been narrowly focused on it, perhaps to the point where the best interests of her children have been subsumed.
143. Whilst the Court has given her ample opportunity to put on evidence in support of the children not being immunised and as to any risk of vaccine damage, she has not done so. Instead she has created only delay, which has been to her benefit in postponing the Court’s determination of this issue.
144. Based on the uncontested evidence of Professor K, it is in the best interests of these children that they be vaccinated.
145. The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode [2006] FamCAFC 1346; (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway
146. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
147. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
148. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
149. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
150. The present application is limited to a determination of the discrete issue as to vaccination/immunisation of the subject children.
151. There are presently interim Orders in place pending final hearing allocating parental responsibility for the children to the father.
152. The Court is thus not required to consider section 61DA or the consequential provisions of section 65DAA.
153. Accordingly, the determination of the issue before the Court falls to a consideration of the best interests of the subject children.
154. The Court has had regard to each of the considerations set out in section 60CC (3) of the Act, none of which greatly assist the determination of the current issue.
155. The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

156. It is in the primary context of the protective concerns, as they touch upon the best interests of the children, that the present application falls to be determined.
157. There is no evidence before the Court that these particular children would be adversely affected by being vaccinated, and the expert has recommended that they bring their vaccinations/immunisations up to date and has put forward a recommended vaccination schedule, set out at Appendix 1 of her affidavit. It is the father’s evidence that he will consult the Professor and/or seek other professional advice in respect of what vaccinations the children are to receive.
158. Once vaccinated, the children will no longer be restricted in various ways which they appear to have been to date.
159. They will be able to attend gymnasiums that they were otherwise unable to attend due to their unimmunised status. They will be able to receive recommended vaccinations in respect of travelling to overseas countries in the future and be protected from the risk of disease and infection. They will be able to resume contact with extended paternal family members who were otherwise concerned about bringing members of their families into contact with unimmunised persons.
160. There is no evidence of any risk to the children in being vaccinated against otherwise preventable diseases by routine vaccinations.
161. The Court is satisfied it is therefore in their best interests of these children to be vaccinated as recommended by the expert, or otherwise in consultation with a medical professional. The Court will make orders accordingly.
162. Further, the Court will discharge the father from his undertaking to the Court and discharge all existing Orders restraining the parties from vaccinating the children.
163. The Court makes orders as set out at the forefront of these reasons for judgment.

I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 March 2014.





Legal Associate:



Date: 12 March 2014