Australia: The great vaccination debate: What does the Family Court have to say?

Last Updated: 21 February 2019
Article by Danielle C Hadida

Over the last few years debates over vaccinating your children have increased and can be a source of great conflict between separated parents. Whilst parents may have been aligned in their views of being pro-vaccinations or an "anti vaxxer" during the relationship this does not mean that the parents are bound to maintain those views.

The Family Court's position

The Family Court considers each case before it on the individual circumstances presented. Generally, the position of the Family Court however has undoubtedly been to favour expert medical advice and make orders which provide for the immunisation of children. In considering whether or not to make an order for immunisation the Family Court is to consider what order would be in the best interests of the children.1

Whilst the vast majority of Australian children are vaccinated each case bought before the Family Court needs to present evidence, the Family Court is unable to rely on the common knowledge (referred to as taking "judicial notice under section 144 of the Evidence Act 1995) as to the benefits of immunisation due to the conflict of opinion of the matter of immunisations.2

Immunisation is considered to be a "major long term issue" which is to be made by the parent or parents with parental responsibility for the child. As we discussed in our article My Child, My rights, the Family Court applies the presumption of equal shared parental responsibility until an order is made for sole parental responsibility. The Family Court has in the past made orders which deal with the issue of immunisations in different ways:

  • Granting one parent sole parental responsibility;
  • Granting one parent sole parental responsibility only for medical matters or specifically only for immunisations; or
  • By ordering the parents to do all things to ensure the child or children are immunised in accordance with the National Immunisation Program Schedule or that they are immunised in accordance with a homeopathic immunisation program. 

The case law

The cases which have come before the Family Court in relation to this issue are of course varied in their applications and supporting arguments. Some cases have argued for a complete objection to any form of vaccination however the overwhelming majority of these cases have resulted in orders for traditional immunisation on the basis of a lack of medical evidence supporting a complete objection to any form of vaccination.3

Kingsford & Kingsford [2012] FamCA 889

In the matter of Kingsford the Father relied on the presumption of equal shared parental responsibility and asked his new partner to take his child to receive vaccinations without the consent of the Mother. The Father admitted that he intended to continue to vaccinate the child "secretly" without the consent of the Mother. Although the Family Court commented that the Father's actions in this regard reflected "poorly on his attitude to the responsibilities of parenthood" the Court nevertheless agreed with the Father's application and made an order for the child to continue to be vaccinated.

Duke-Randall & Randall [2014] FamCA 126

This case involved two children aged 7 and 8 and concerned an application made by the Father for the children to be traditionally immunised. At the time of the hearing the children had not undergone any form of immunisation treatment despite both children having suffered from multiple incidences of whooping cough.

The Father indicated that he had agreed to the Mother's "anti-vaxx" position during the relationship so as to avoid any conflict between the parents. After separation however, the Father became concerned for the health of the children and the restrictions remaining un-vaccinated may have on their lives.

The Mother argued that vaccination should not fall under the umbrella of parental responsibility and should instead be deemed to be a "special medical procedure." Although the Mother was ordered to inform the Department of Human Services and the Human Rights Commissions of the nature of her application, the Court ultimately held that a vaccination is not a special medical procedure on the basis that immunisations are, for the most part, a common aspect of childhood.

The Court relied heavily on the expert medical evidence put forward by the Father and noted that the Mother had failed to provide any expert evidence which supported her claim that the children would suffer negative effects of immunisation. It was ordered that the children undergo a "catch-up" vaccination program.

Kott Gunning recommends

Although the Family Court has generally preferred the application seeking the implementation of a traditional vaccination regime, all expert evidence must be considered before a determination is made. If you disagree with your former partner about how your children are to be immunised, we recommend that you seek independent advice from one of our family lawyers before considering Family Court proceedings.

Footnotes

1 Family Law Act 1975 s60CC.

2 McGregor & McGregor [2012] FamCAFC 69.

3 Arranzio & Moss [2015] FamCA 544.

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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