Father wins Application against Anti-Vaxer Mum

It was only a matter of time post the Covid-19 era that the issue of vaccinations would be before the Family Court for judicial determination.  In the recent case of  Makinen & Taube [2021] FCCA 1878 Judge Taglieri of the then Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia) heard a father’s application to have sole parental responsibility in respect of decisions regarding immunisations and vaccinations for the parties two children aged 12 and 8. The mother opposed any vaccination and relied on literature which reported on the harm that vaccinations can bring to children.

The father won his application with the Court ruling that the mother’s opposition to vaccination was based on genuine but unreasonably held beliefs.  Read on for more details.

Parental Responsibility

Under the Family Law Act 1975 parental responsibility means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Parental responsibility incudes the power over vaccinations and medical treatment for children. Under the Family Law Act 1975, there is a presumption that both parents have equal shared parental responsibility requiring the parents to consult with each other and make a genuine effort to come to a joint decision about major long term issues in relation to the children. However, the Court can order that one parent have sole parental responsibility for all major long term issues or for particular issues. In the case of Makinen & Taube, the father sought sole parental responsibility for the one particular issue of immunising/vaccinating the children.

The Mother’s Case (Opposing Vaccinations)

The mother sought to rely upon many factors to support her position against vaccinations which included:

  1. The father had not mentioned his opinion on vaccinations after separation.
  2. The father never asked for a Medicare card nor told her that he would be taking the children to be vaccinated.
  3. During their relationship the father had not expressed a wish to care for the children’s health nor taken them to medical appointments.
  4. She was the primary carer for the children and still is and that the father had little involvement in their care.
  5. The mother relied on the Australian Immunisation Handbook which reports “it is usually not possible to predict whether an individual group will react to a vaccine, or whether the reaction will be mild to serious”. She argued that this demonstrated that a vaccine is not safe for her children.
  6. The mother asserted that she had studied the medical research which concluded that there is greater susceptibility to adverse effects from vaccinations in children who have a parent with an autoimmune disease and she stated that she had such disease of the thyroid.
  7. That about 5% of the population is unvaccinated.
  8. The mother was also concerned about the risk of psychological harm to the children through being forcibly vaccinated.

The Father’s Position (Pro-vaccination)

The Orders sought by the father, if made, were to have sole decision making concerning immunisation/vaccination of the children.

The father, like the Independent Children’s Lawyer in this matter, relied upon the recommendations of the Family Consultant who commented:

“The children not being vaccinated is contrary to the State and Federal Government Health recommendations. Non-vaccinated children and adults can be excluded from services and travel opportunities due to the risk they pose to other people. [The mother] holds a firm opinion about the issue of vaccination based on literature she has read but there seems to be no medical information to suggest [the children] are at any escalated risk of negative vaccine outcomes.”

The Court’s findings

It was clear that both the mother and the father had the best interests of the children at heart. However, they had diametrically opposed views and attitudes as to whether the children should be vaccinated/ immunised against disease.

In considering the evidence, Judge Taglieri stated:

“The Commonwealth governments recommendations about vaccination contained in the Australian Immunisation Handbook along with advice on its website can be seen to have developed and compiled over many years….This literature includes publications from widely known, reputable and leading scientific and medical journals such as the Lancet and Australian Medical Journal. Their recommendations/advice are also referenced to the World Health Organisation (WHO). WHO is commonly known to be a United Nations body responsible for international public health and I take judicial notice of this fact.”

Judge Tagileri further stated:

“…the literature which forms the basis for the Australian Immunisation Handbook ought to be given greater weight than the opinions expressed in the articles and literature annexed to the mother’s affidavits. The former are the basis for public health policy of the Commonwealth and State governments for the benefit of the community. In any event, the literature relied upon by the mother does not materially differ and certainly does not support a contention that no children should ever be vaccinated.”

The Judge in this case also outlined the differing attitudes between the mother and the father which renders it highly improbable they could, after a consultation process, reach a joint decision about giving the children any particular vaccine at any particular time. For that reason, the Judge believed that if no order were made specific to parental responsibility concerning vaccinations, by default, the children would not be vaccinated against any disease.  Significantly, the Judge commented that:

“While the mother may be more vigilant, active and diligent towards matters related to the children’s health and hygiene, her entrenched views against vaccination demonstrate that she will likely push back and reject having the children vaccinated, even if it is deemed necessary or recommended by a medical professional. The father …. is likely to be more compliant with recommendations by a doctor or medical professional.”

It is for these reasons that orders were made for the father to have sole parental responsibility regarding decisions concerning vaccinations/ immunisations in accordance with the national immunisation program or as recommended by the children’s general practitioner.

Ultimately, in any parenting decision, the primary consideration is the child’s best interests. The Court will always determine each matter on its own relevant facts and will need to weigh out the risk to the particular child receiving any vaccine/ immunisation based on the best medical evidence available.

If you need any advice or assistance with your parenting matter, please contact the DBL Family Law Team for advice.

Danielle Dick
Associate

Danielle Dick DBL Solicitors

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