As family lawyers in Sydney, we believe it is important to keep updates and details on cases pertaining to changing landscapes and current events. The case of Rusena V Rusena (2022) has vital elements that contribute to discussions surrounding the current legal landscape. We found it interesting particularly as it relates to cases tried by child custody lawyers and divorce lawyers – which are two of our specialties.
Background – Rusena & Rusena (2022)
The parents were in a relationship for seven years from 2011 until their separation in early 2018.
The parents and custody lawyers had agreed to final orders on 22 January 2019, whereby they would have equal shared parental responsibility of their two children, aged 8 and 5. The children were to live with the mother and spend six nights each fortnight with the father.
The mother was “gravely concerned about the long-term and immediate health risks to the children” if they were to receive the COVID-19 vaccine , and sought an injunctive order preventing the father from vaccinating the children without her consent.
In January 2022, the children’s GP provided a medical certificate confirming that the children had no underlying health conditions which suggest they would be at particular risk from being vaccinated against COVID-19. This evidence was presented to the court by the Father’s custody lawyer.
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At First Instance – Rusena & Rusena (2022) FedCFamC2F 472
The matter was heard in the Federal Circuit and Family Court of Australia on 14 April 2022. The mother requested that the father be restrained from facilitating the children from receiving the vaccination without her written consent. According to the mother’s family lawyers, she wasn’t necessarily against the vaccine in the long-term but wanted more time to be able to make the decision with greater data availability.
The mother’s submissions were supported by the expert evidence of a professor with over 20 years of vaccination experience.
The father and his family lawyer requested sole parental responsibility relating to the specific issue of the children receiving the COVID vaccination. The father’s submissions were supported by the expert evidence of a doctor experienced in administering COVID vaccinations.
The Court denied the mother’s injunction, citing Section 60CC(I) of the Act which requires the Court to make an order that would be least likely to lead to further proceedings.
The Court then considered the father’s request for sole parental responsibility relating to the issue of COVID vaccination. In coming to a decision, the Court considered the evidence submitted by the family lawyers from both parties, including the publicly available health advice and advice of the expert witnesses.
The Court concluded that “there is no evidence that conclusively established that the risks of harm identified are unacceptable”, and found the benefits to the children outweighed the risks.
Considering both “the evidence presented by the father and the primary role the father had played in attending to the children’s medical needs for the last four years” , the Court found the father to be the most appropriate parent to be allocated sole parental responsibility for COVID vaccinations.
Orders were made dismissing the restraint brought by the mother and allocating to the father sole parental responsibility for the specific issue of the children receiving COVID-19 vaccinations.
On Appeal – Rusena & Rusena (2022) FedCFamC1A 149
An appeal was brought by the mother and her child custody lawyer. It was heard in the Federal Circuit and Family Court of Australia on 23 September 2022. The appeal was brought on two grounds.
Ground 1: That the Primary judge acted on a wrong principle and without evidentiary foundation in:
(a) framing the question as one that involved the identification as to unacceptable risk and then
(b) erroneously finding, implicitly, that the effect of the children not being vaccinated at this time exposed them to an unacceptable risk of harm.
The Court rejected the appeal raised in Ground 1(a), finding that the trial judge’s “assessment as to the possible existence of unacceptable risk occurred in the context of her Honour fulfilling her statutory responsibility to have regard to the totality of those matters set out in s 60CC of the Family Law Act 1975 (Cth)” . The Court found that no error was demonstrated in the way the trial judge considered and applied those s 60CC considerations and her consideration of unacceptable risk was made in the context of considering the totality of those issues and not as the central question.
The Court also rejected the contention raised in Ground 1(b), finding that the judge had been balanced in her approach and appropriately recognised the risks and benefits associated with child vaccination. The Court concluded that “at no stage did her Honour say, expressly or by implication, that the children faced an unacceptable risk of harm if they were not vaccinated or, for that matter, if they were vaccinated” .
Ground 2: That her Honour erred in principle in failing to give any or any adequate reasons for the conclusions reached in ground 1.
Given that the Court determined the first ground of appeal was without merit, the second ground was subsequently dismissed as it was “inextricably linked to the false premise set out in the first ground of appeal.
Important Takeaways From A Sydney Family Law Firm
This case is one of several recent matters where the Court has supported the authorising of one parent to vaccinate their child against COVID-19 despite the protests of the other parent.1 Of interest, this case was unique in that even with trained child custody lawyers and the support of expert evidence provided by a doctor with over 20 years’ experience in vaccine research, the attempt to oppose the vaccination of the children failed.
If you find yourself in need of expert advice or representation from an accredited family lawyer in Sydney – we’re here for you. Get in touch with one of our team today and schedule a sit-down with us.