Case

Which case won?

casea
The case for the mother 
  • It is in our son’s best interests to be vaccinated now against Covid-19.
  • X is a fit and healthy child with no underlying medical problems. There is no reason that would qualify him for medical exemption from vaccination and there is no reason to delay.
  • Although he is fit and healthy, our son does have a history of respiratory disease, and I am concerned that this will put him at increased risk of experiencing adverse health effects should he contract Covid.
  • I am also concerned about the adverse social impact on X if he is labelled at school as an “unvaccinated” child. Vaccination is a common topic of conversation among his friends, and he regularly raises this with me. He also tells me how worried he is about coronavirus. Vaccination would be a good way to alleviate this anxiety.
  • In addition to X, I have a three-year-old child and a four-month-old baby. Vaccinating X is an important way to protect my other children from potential transmission of Covid-19. It will also help protect my 89-year-old grandmother when X visits her.
  • As my expert witness Dr E has testified, while Covid illness is frequently mild in children, the risks associated with infection far outweigh the risks associated with vaccination.
  • Given all of the above, the court should order that X be vaccinated with the Pfizer Covid vaccine now.
caseb
The case for the father
  • It is in our son’s best interests to wait until there is more information available about long-term side effects in children of the Pfizer Covid vaccine.
  • The Pfizer Covid vaccine is only approved for provisional or emergency use. Health advice continues to change rapidly surrounding both Covid-19 and Covid vaccines. Once the vaccine has been injected, there is no undoing it.
  • Covid-19 is a largely asymptomatic illness in children in our son’s age range, and as his mother has said, X is a fit and healthy child with no underlying medical problems. Given the risk of exposing X to unknown long-term adverse consequences by vaccinating him now, waiting is the safer course of action.
  • Further, rushing to vaccinate our son is not an appropriate way to manage relations with his peers.
  • I empathise with my ex-wife over her concerns for her other family members. However, the question before the court is not what is in the best interests of her other children or her extended family. The question before the court is what is in the best interests of our son.
  • The court should order that we wait to vaccinate X until there is more information available about long term side-effects in children of the Pfizer Covid vaccine.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
case a62%
case b38%

Expert commentary on the court's decision

David Thompson
David ThompsonSolicitor Director
“Given that the outcome of this case turned on Dr E’s expert evidence, one can only wonder what the outcome might have been if the father had introduced credible expert witnesses of his own.”
Court rules in favour of mother, ordering that son be vaccinated

In the case of Palange & Kalhoun [2022] FedCFamC2F 149, the Federal Circuit and Family Court of Australia ruled in favour of the mother, Ms Palange, preferring her arguments to those of the father, Mr Kalhoun.

The court ordered that the child, X, be vaccinated with the Pfizer paediatric Covid vaccine, in accordance with the mother’s wishes.

Hearsay evidence and opinion evidence inadmissible under Evidence Act

The judge found that the evidence given by Ms Palange and Mr Kalhoun of what they say various public health bodies have said was inadmissible as hearsay under the Commonwealth Evidence Act 1995.

Further, under the opinion rule in section 79 of the Evidence Act, Ms Palange’s and Mr Kalhoun’s lay person opinion evidence about Covid infection and Covid vaccination was also inadmissible.

Dr E’s evidence admissible as expert opinion

The judge noted the exception under the Evidence Act for opinions which are based on “specialised knowledge,” commonly called “expert opinion” evidence.

The judge was satisfied that Dr E’s opinion evidence fell into this exception. So, unlike Ms Palange’s other evidence, Dr E’s evidence was admissible under the Evidence Act.

Evidence inadmissible under Evidence Act is admissible under Family Law Act

Although most of the parties’ evidence was inadmissible under the Evidence Act, the judge found that Ms Palange’s and Mr Kalhoun’s evidence was admissible under section 69ZT of the Commonwealth Family Law Act 1975 

This section moderates the strict application of the Evidence Act in order to provide greater flexibility to the court when considering what is in the best interests of children.  

Judge gives little weight to most evidence except Dr E’s expert opinion

The judge noted that while admission into evidence is required before the court may consider evidence, the question of what weight to give to each item of evidence admitted is a separate step.

In weighing the evidence before him, the judge made the following remarks.

In the absence of any relevant qualifications of either party to give opinion evidence about this complex issue I do not consider it appropriate to give any weight to either of their opinions on the medical and public health issues associated with COVID-19 infection or vaccination On the other hand, I give substantial weight to the unchallenged and uncontested evidence of Dr E who is a highly qualified expert.

Similarly, while the judge accepted that if X remained unvaccinated, it might impact his ability to see the elderly members of his extended family, he did not give significant weight to this factor.  

Nor did he give any weight to the mother’s opinion that X would be socially excluded by his peers. 

Unlike Ms Palange, Mr Kalhoun did not call any expert witnesses.

In relation to Mr Kalhoun’s evidence, the judge observed that the only material he had as to the potential risk to X was his general concern as a lay person that there may be some unknown adverse side effect of the vaccine at some unknown time in the future.

As the court had no other evidence to help determine what weight to give to this possible future unknown risk, it could only take it into account in a general way. 

Risk of self-representation in court

In this case, Ms Palange and Mr Kalhoun each represented themselves. As the court noted: “That is no easy task given the complexity of the law relating to parenting and to evidence.”

Unlike Ms Palange, Mr Kalhoun did not call any expert evidence about the kinds of potential adverse long term side-effects he may have had in mind, or any expert evidence about the potential for unforeseen side-effects arising from the Pfizer paediatric Covid vaccine.

Given that the outcome of this case turned on Dr E’s expert evidence, one can only wonder what the outcome might have been if Mr Kalhoun had introduced credible expert witnesses of his own.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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