Parents Dispute their Child's Vaccination
Trott & Brenton [2022] FedCFamC1F 366 (25 May 2022)
The parties are in dispute over their child's vaccination. The mother called medical expert opinion evidence from the child’s general practitioner in support of vaccination. The Court, in determining this dispute, assessed the medical evidence and if it establishes that the benefits of vaccination with Pfizer vaccine outweigh known risks.
Facts:
The parties separated in 2014. The father filed an Initiating Application commencing parenting proceedings on 5 July 2019. Pursuant to Interim Consent Orders entered by the Court on 25 September 2019 X lives primarily with the mother and spends regular time with the father.
An Independent Children’s Lawyer (“ICL”) has been appointed and participated in this hearing. Ms C, said that: Both Mr Trott and Ms Brenton presented as loving and competent parents who have X’s best interests at heart.
The mother filed an Application in a Proceeding on 21 February 2022, supported by a short affidavit filed 18 February 2022, seeking that the mother have sole parental responsibility in relation to having the child X born in 2009 vaccinated against Covid-19 pursuant to the recommendations and guidelines of the New South Wales Health and Government.
The father filed his Response to an Application in a Proceeding on 21 April 2022, supported by an affidavit also filed 21 April 2022, seeking that the mother's Application in a Proceeding filed on 18 February 2022 be dismissed.
On 31 March 2022 the Division 2 Judge who had the ongoing case management of these proceedings made orders that the matter be listed on 16 May 2022 “for final hearing in relation to the discrete issue of whether the mother should have sole parental responsibility for the child receiving COVID-19 vaccinations”.
That Judge made orders for the filing by each party of expert evidence on the issue of vaccination against COVID-19 and, as this is a final hearing on a discrete issue, allowing for cross-examination of the parties and expert witnesses. The father did not file any expert evidence.
Issue:
Whether or not the mother should have sole parental responsibility for the child receiving COVID-19 vaccinations.
Applicable law:
Evidence Act 1995 (Cth) s 59 - provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
Evidence Act 1995 (Cth) s 76 - provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
Evidence Act 1995 (Cth) s 79 - provides that if a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
Analysis:
Dr D’s opinion was that X is at risk of contracting COVID-19, that there are no contraindications to her receiving the Pfizer vaccine, that the known risks of receiving the Pfizer vaccine for X as a female of 12 are minor and include localised arm pain and some potential lethargy, and that while myocarditis cannot be excluded it is primarily an issue for adult males and he was not aware of any female children in Australia suffering that side effect.
Dr D accepted that a person could become seriously ill from COVID-19 even after vaccination, but said that there was a clear benefit to this vaccination as vaccinated people “have a much reduced risk of hospitalisation and death” noting that “the vast majority of people that end up in intensive care have not been vaccinated.”
Despite that he accepted that there were people who require treatment in intensive care after vaccination because vaccination is not 100% effective. Dr D conceded that it is not possible to exclude the father’s concern that unknown side effects might emerge in future, but considered it unlikely given the “millions and millions of doses of Pfizer administered to both children and adults” world-wide, the extent of Government monitoring of the issue, and the fact that the Pfizer vaccine is not a live virus but a manufactured chemical which incites an immune response.
Conclusion:
The mother has sole parental responsibility for the child X born in 2009 on the sole issue of vaccination against COVID-19. A copy of these Orders may be provided to any medical practitioner to confirm that X may be vaccinated against COVID-19 with the Pfizer vaccine.
