The vexed vax issue and the Family Court


Posted By on 28/07/22 at 1:55 PM

It has long been established that the Family Court has the ability to make orders about the vaccination of children. Unsurprisingly the advent of covid vaccines being available to children as young as five has and will continue to cause issues between parents both separated and unseparated.

As at 20 February 2022, a quick review of the latest figures from the Federal Government’s vaccine rollout update reveal that 85% of children between 12 and 15 have had two doses and so far 49% of children between 5 and 11 have had their first dose, with a very small percentage having had their second. It will be interesting to see how these figures play out over the coming months, but it seems that a reasonable percentage of parents are not lining up for their youngsters to be jabbed at this time. Whether or not any state government will make the covid vaccine mandatory for children remains to be seen.

As is always the case, the court will frame its decision around the best interests of the child. Of course when it comes to vaccination, views on what constitutes ‘best interests’ can vary greatly.

What case law tells us

In the recent case of Makinen & Taube [2021] FCCA 1878 the parents had agreed all living arrangements for their two children, 8 and 12 save for the issue of vaccinations. The mother was the primary carer for the children and the father spent substantial time with the children.

As the trial judge stated, clearly ‘on the basis of the mother’s evidence …she has firm and strong bias against vaccination of any kind.

Whilst covid loomed large no application was sought for a particular disease, instead the father sought an order for sole parental responsibility to vaccinate according to general practitioners’ recommendations.

The father submitted that “the bulk of current medical information supports the proposition that immunisation/vaccination is in a child’s best interests.”

In contrast the mother submitted a great weight of material in support of her contention that vaccinations can have a whole range of negative impacts on children.

Her Honour held that:

In my view, 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.”

It is noteworthy that in the circumstances of this case neither party called medical experts with respect to vaccinations or indeed any specific medical circumstances of their children.

In the absence of such evidence, the Court declined to make orders that any particular vaccinations be given to the children. Rather the father was granted the orders he sought in that he would have sole decision-making responsibility as to the vaccinations to be received by the children based on medical advice obtained by him. The Court took comfort from the view that doctors owe professional duties of care when administering vaccines as would be the case with any medication.

This may will be the first of a number of cases. What will become even more interesting as we continue down the covid journey is what expert evidence will be called upon in future cases where more specific orders may be sought and a judge is tasked with the unenviable role of sorting through what is information and what is misinformation. It is suggested that the issue of medical treatments for children, whether preventative or otherwise, will become more contentious over the coming years.

For further assistance or information please do not hesitate to contact a member of our Family Law team on (03) 9663 9877.

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Monica Blizzard

Monica Blizzard Director

Monica Blizzard is an Accredited Family Law Specialist with the Law Institute of Victoria, a trained mediator and collaborative lawyer, and has 20 years experience working in family law.

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