Appeal for Child Vaccination Dispute Denied by Court for Lack of Merit
Rubin & Rubin [2022] FedCFamC1A 148 (23 September 2022)
Intro:
The wife sought the review made by the appeal registrar on dismissing her application to bring an appeal out of time. The Court, now assesses if the delay was not gross and whether the appeal lacks utility.
Facts:
The parties have two children, currently aged nine and six years.
Orders in respect of the children were made with the parties’ consent on 29 March 2021, thereby concluding their dispute under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Relevantly for present purposes, the orders vested the parties with equal shared parental responsibility for the children. Apparently, the orders were implemented uneventfully until the parties reached an impasse over the children’s vaccination against COVID-19.
To break the deadlock, the respondent filed an Initiating Application on 4 February 2022 seeking orders to facilitate the children’s vaccination over the applicant’s objection by giving him sole parental responsibility for that discrete issue. The applicant joined issue by filing a Response on 8 March 2022, in which she opposed the relief sought by the respondent. She principally sought the dismissal of the respondent’s application and, instead, her investiture with sole parental responsibility for all vaccination decisions related to the children, but alternatively, a stay of the proceedings until judgment was delivered in unrelated proceedings pending before the Federal Court of Australia, between an incorporated anti-vaccination interest group and the federal Department of Health.
The primary judge determined to dismiss the applicant’s application to stay the proceedings and to instead decide the dispute without delay. In so doing, the primary judge determined to vary the existing order allocating the parties with equal shared parental responsibility for the children by ordering that Mr. Rubin would have sole parental responsibility for the children with respect to the specific issue of their receipt of vaccinations against COVID-19.
The applicant’s lawyers almost immediately corresponded with the respondent’s lawyers forewarning of her intention to appeal but, on 7 July 2022, the appeal limitation period lapsed without any appeal being filed. It transpired that the applicant’s principal lawyer had suffered some ill health, which necessitated his short hospital stay, compounding the lawyer’s delay in acting upon the applicant’s instructions to appeal.
An Application in an Appeal was filed on 1 August 2022, seeking leave to bring the appeal out of time, which application was heard by the appeal registrar on 9 August 2022 and dismissed with reasons on 22 August 2022.
The applicant’s Application in an Appeal filed on 12 September 2022 now requires the review of that decision by way of hearing de novo.
To prosecute her application, the applicant relies upon:
(a) the affidavit of her lawyer, filed on 1 August 2022 in support of her application for an extension of time before the appeal registrar, to which is annexed the Notice of Appeal in a draft format which she wants to file; and
(b) her affidavit filed on 12 September 2022 in support of this review application.
The respondent maintained his opposition to the application.
Issues:
1.) Whether or not the applicant should be granted leave to bring her proposed appeal out of time.
Ruling:
No.
None of the proposed grounds of appeal appear to have any merit and so the applicant fails to surmount the first hurdle. No “substantial issue” is raised. There is no point in granting leave to bring an apparently unmeritorious appeal out of time, regardless of other discretionary factors. However, some further pertinent observations may be made for the applicant’s edification.
The parties were unable to exercise their equal shared parental responsibility to make a joint decision about the children’s vaccination. Having attempted to compromise, as the Act requires of them (s 65DAC), they remained deadlocked. The only remedy was an order by the Court to settle the dispute.
The wife could not rationally dispute that proposition because just like the husband, she sought an order to vary the existing orders. She proposed that, rather than the husband, she be given sole parental responsibility in that limited respect. But the primary judge instead decided the husband had the unilateral right to decide if, when, and how the children would be vaccinated. The wife’s written submissions made reference to “section 70BNA” (presumably meant to be s 70NBA), which is presently irrelevant because neither party prosecuted a contravention application against the other, but no mention was made of s 65D(2), which is critically important.
The wife submitted their disagreement over the children’s vaccination was “not a change in circumstances, let alone a material change” to warrant revision of the existing orders, but that cannot be correct for otherwise no deadlock between parents over important issues concerning their children – like their medical treatment, school enrolment, religious instruction, or the like – could ever be resolved.
The wife submitted the primary judge misapplied ss 61DA(1) and 61DA(4) of the Act, which provisions respectively prescribes the application and rebuttal of the presumption that parents will have equal shared parental responsibility for their children whenever parenting orders are sought and made. Here, the parties already had equal shared parental responsibility but, since they could not reach an agreement on an important issue, each sought an order giving them sole parental responsibility in respect of a single “major long-term issue” related to the children’s care, which disputes the primary judge duly decided.
Conclusion
The Application in an Appeal filed on 12 September 2022 is dismissed. The wife shall pay the husband’s party/party costs of and incidental to the application in the fixed sum of $8,324.
