To jab or not to jab? What does the Family Court say about vaccination disputes?

With the Covid-19 pandemic continuing to impact the way we live, work, study and play, vaccination has become a fiercely divisive issue between those who support the Government and Health directives for vaccination against Covid-19, and those who strongly oppose them.

Unsurprisingly, this issue has divided families with respect to vaccinating their children. Streeterlaw’s Accredited Specialist in Family Law, Simone Green explains the Court’s approach to resolving vaccination disputes.

The Federal Circuit and Family Court of Australia (‘the Court’) is a specialised court assisting separated families in dispute, decide arrangements for their children, including their health. The dedicated Family Court Covid-19 list implemented in 2020 in response to the pandemic related issues faced by families, has been recently inundated with parental disputes regarding the Covid-19 vaccination.In determining disputes about vaccinating children against Covid-19, and any other serious illness, the Court must have the best interest of the child as its paramount consideration.  The Court requires expert health evidence to be submitted as to the risk of harm the vaccine presents to that individual child, to assist with its decision, should one parent refuse vaccination or immunisation for that child. It is not sufficient to rely on articles and studies attached to evidence regarding the potential risks to groups of people.

The case of Makinen & Taube [2021] FCCA 1878 (16 August 2021) involved a parental dispute regarding vaccination their children, then aged 8 and 12 years old. The mother was strongly anti-vaccination of all kinds and sought an order prohibiting the father from vaccinating or immunising the children; the father sought an opposing order to have sole parental responsibility over vaccinations and immunisations for the children when recommended by their treating doctors.

The mother presented in support of her anti-vaccination views, articles and literature on the harmful effects of vaccination on children but did not adduce any evidence from a Court qualified medical expert.

What did the Court decide?

The Court sided with the pro-vaccination father (supported by the Family Report writer and the Independent Children’s Lawyer) preferring to follow the Commonwealth Government’s vaccination recommendations contained in the Australian Immunisation Handbook along with advice on its website, stating that such information was well tested and compiled over many years.

The Court’s orders fell short of requiring the children to be immunised/vaccinated, leaving it up to the children’s treating doctor to make that decision on the individual health needs of each child, including which, if any, vaccines should be given. The judge stated:

76] ……Orders that ensure a decision is taken about giving vaccines based on current medical advice is essential for the best interests of the children. This is consistent with maximising their welfare and being protective…also noting that qualified doctors owe professional duties of care that apply to giving vaccines as a form of treatment…..

[77] As the father is likely to heed medical advice about vaccination, he ought to have sole parental responsibility concerning this specific issue. This will ensure that vaccinations are given when it is warranted, taking into account all relevant considerations effecting the child and contemporary mainstream medical and scientific knowledge. It ought to limit further proceedings also.”

What does this case mean for the vaccination debate in Family Law?

Simone Green counsels that it is unlikely an anti-vaccination application will succeed in the Court without the support of a qualified expert who can give compelling evidence of the risk of harm to those children if vaccinated with a particular vaccine.

It appears that in default of such evidence to the contrary, the Court will support the current Commonwealth health guidelines.

If you are affected by family separation and help in reaching agreement on important issues concerning your children, it is essential to seek specialist legal advice as soon as possible. Call Streeterlaw today on 02 8179 0105 and speak with our friendly, expert Family Law team who can provide you with specialist legal advice tailored to your individual needs and get you on the path to resolution.