THE APPROACH OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA TO THE VACCINATION OF CHILDREN

Dad in a mask holding his two young children also in masks

Disputes over child vaccinations in family law matters have become more prevalent over the past few years as a result of the Covid-19 pandemic. The Court can make Orders to allow one parent to have sole parental responsibility with respect to the issue of vaccinations allowing them to make the decision to vaccinate unilaterally or they can make Orders requiring a child to be vaccinated. Given that the issue of vaccination falls within parental responsibility, Courts are generally reluctant to involve themselves in medical decision-making.

In the recent case of Makinen & Taube [2021] the Federal Circuit and Family Court of Australia ruled in favour of the father having sole parental responsibility for his two children aged 12 and 8 allowing him to do all such things to ensure that the children received their childhood vaccinations as recommended by their treating general practitioner by reference to the National Immunisation Schedule.

The matter was brought to Court on the specific issue of vaccinations after the mother and father signed Consent Orders allowing them to have shared parental responsibility for major long-term issues affecting the children excluding vaccination decision-making as they were unable to agree on that issue.
The mother refused to allow the children to be vaccinated on the basis of literature she relied upon about the harm that vaccinations can bring to children and she had heard stories of children becoming physically and mentally ill after being immunised.

The Court placed greater weight on the literature that underpins the National Immunisation Handbook and ultimately found it to be more credible than the literature and articles the mother relied on in her application. The Court found that it would be wrong to make Orders that the children be vaccinated without having expert evidence relating to the children’s individual circumstances. Whilst ruling against the mother, the Court found that her anti-vaccination stance was based on genuine but unreasonably held beliefs.

The Court granted the father sole parental responsibility in relation to the discrete issue of immunisations. The Court also restricted the involvement of the mother with respect to facilitating the children’s immunisations apart from providing the medical professional with their relevant medical histories. The Orders expressly prohibited the mother from interfering with the making of recommendations and the giving of vaccinations by the medical professional. A restraint was also included to prevent the mother from making anti-vaccination statements or having undue influence over the children regarding their immunisations.

Although the Court sided with the pro-vaccination parent in this case it did not go so far as to make Orders requiring the children to be vaccinated. The Court left the decision up to the children’s treating doctor as to whether any vaccination should be given based on their individual health needs or in accordance with the National Immunisation Program.

When making a decision relating to the vaccination of children, the Court will rely on expert medical evidence. An application opposing commonly-administered vaccines will be challenging unless a party can adduce compelling expert evidence as to the harm of a particular vaccine that may be caused to a child. This case demonstrates the Court’s emphasis on the best interests of the children as the paramount consideration.

Any parent unable to reach consensus with the other parent concerning the vaccination of their children is encouraged to obtain advice from a family law firm. At Vic Rajah Family Lawyers we are able to assist.

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