Australia: To vaccinate or not; who is responsible during Family Law cases

Last Updated: 14 March 2017
Article by Simon Creek

To vaccinate or not; That is the question – but who is responsible for the answer when we approach the discussion of immunisation and separating parents?

This has also been heightened recently within the media by politicians, doctors and noted celebrities weighing in on the debate.

While the medical and scientific communities argues that the benefits of immunisation outweigh the risks, the issue remains hotly contested with the so called "anti-vaxxers" standing firm in their belief that vaccines are unsafe and cause side effects.

So, what does the Family Court say about immunisation when faced with separated parents warring over whether to immunise their children? The following cases provide helpful guidance to parents who find themselves involved in court proceedings because they disagree over the issue of immunisation.

Kingsford & Kingsford [2012] FamCA 889

In this case, the Family Court was called to decide whether an 8 year old child should be immunised according to "homeopathic principles" or conventional immunisation. Her parents had separated and the child lives with her mother and spends time with her father alternate weekends during school term, and half of school holidays.

The mother applied to the Court for an order that the child continue to be homeopathically immunised and that the father and his agent be restrained from otherwise immunising the child. The mother made that application following an incident involving the father's wife (the children's step-mother) where she took the child to a medical centre and the child was immunised in the usual fashion for a child of her age. Up until that point the mother had followed the homeoprophylaxis immunisation approach.

The father's expert is a doctor with a Bachelor of Medicine and Bachelor of Surgery from Melbourne University, and is also a Fellow of the Royal Australian College of Physicians. The mother's expert is not a medical doctor. He has an Honours degree in Economics and has a career in financial services before he became a homeopathic practitioner. He graduated from a PhD program to research homeoprophylaxis.

After hearing the scientific and medical evidence presented by the experts relied on by the father and the mother, the Family Court in this matter found that "the efficacy of homoeopathic vaccines in preventing infectious diseases has not been adequately scientifically demonstrated". While both forms of immunisation carry risks, the risks of both forms of immunisation are relatively low. In the circumstances, the Court found that the risk of harm of a traditional vaccination program was not so great as to outweigh the risk of infection. The Court ordered that the child be conventionally immunised.

Duke-Randall & Randall [2014] FamCA 126

This decision involved two children, aged 8 and 7 neither of whom had been vaccinated despite both of them having suffered previous bouts of whooping cough.

The mother held an anti-vaccination position and the father gave evidence that he had only agreed with the mother's anti-vaccination views while they were together to keep the peace.

A Senior Consultant Physician in Immunology and Allergy was appointed to provide recommendations by the father, the mother and the Independent Children Lawyer (who is a lawyer appointed to look after the interest of the children independently of the children's parents).

After seeing the children and conducting medical examinations (including skin prick testing), the expert found that the children are able to receive vaccinations in accordance with the recommended vaccination schedule.

The father also provided evidence to show that the children had been restricted in their activities as a result of not being immunised – he had not been able to enrol the children in various school holiday activities, gyms, and did not felt that he was able to take the children on holidays to Indonesia unless they were vaccinated for tetanus, typhoid, hepatitis A and B etc.

The Family Court decided that the children in this case should be immunised because:

  • The mother had failed to present any evidence to the Court that the children would be adversely affected by being vaccinated.
  • The expert had recommended that the children bring their vaccinations/immunisations up to date.
  • Once immunised, the children will be able to participate in the various activities they were unable to be involved in while they were not immunised.

Take Away Points

The Family Court will determine the question of immunisation by examining the specific circumstances of the child who is the subject of the proceedings before it.

While parents' belief is a factor considered by the Court, the Court is more likely to accept expert medical and scientific recommendations as to what is in the child's best interest.

If there are competing expert and scientific opinions, the Court will need to determine which expert's opinion should be followed. If you and your former partner/spouse cannot agree on the immunisation that is appropriate for your child, we recommend that you seek expert medical and family law advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Simon Creek
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