Vaccinate or litigate? The role of family law when parents can’t agree

13 October 2021

With attention now turning to whether and when children should be vaccinated against COVID-19, a recent decision of the Federal Circuit Court of Australia provides a timely reminder that where parents are unable to agree about vaccination, the court will decide based on what’s in the best interests of the children.

In Makinen & Taube, the Federal Circuit Court of Australia was asked to determine whether children should receive vaccinations in circumstances where their parents could not agree whether the ‘jabs’ were in the children’s best interests.

In summary, the Court made orders:

  1. allocating the father with parental responsibility in respect of all decisions relating to the children’s immunisation and vaccination(s);
  2. compelling the father to ensure that the children receive any vaccinations recommended by their treating GP; and
  3. restraining the mother from giving the children opinions and advice contrary to the recommendations of their treating GP.

A brief background

  1. The parents were separated and had two children, aged 8 and 12.
  2. The children lived with the mother and spent regular time with the father.
  3. The parties had resolved all parenting matters except those relating to vaccination of the children.
  4. The mother’s position was, broadly, that the risk of harm posed to the children by contracting vaccine-targeted diseases was outweighed by the risk of adverse-affects from the vaccinations themselves, and that in Australia the relevant diseases are treatable and rare.
  5. The father was supportive of the children receiving any vaccinations recommended by their treating GP.
  6. The father sought orders giving him sole decision-making responsibility concerning vaccination of the children.
  7. The mother sought an injunctive order restraining the father from having the children vaccinated.
  8. The children had not yet received any of the vaccinations available to children in Australian by the time of the hearing.

The parties’ views

The mother submitted that vaccination is a matter about which both parents should have a say. She submitted further that the children should know all the risks of vaccination and have their wishes heard.

The mother’s argument was, in summary, that during the relationship the father had not been involved in the children’s health and until separation, he had not mentioned his position on vaccination. To the contrary, the mother was the children’s primary carer and followed other professional medical advice concerning their treatment.

In support of her position, the mother provided various articles and research which she argued showed links between vaccinations and auto-immune diseases and neurological disorders. She argued that the children were unlikely to become seriously ill as a result of vaccine-targeted diseases in Australia because they are very rare or have been eliminated. She considered that the risk posed by vaccines of untreatable harm outweighed the risk posed by vaccine-targeted disease.

In support of his position, the father argued that:

  1. In making parenting orders, the Court needs to consider the best interests of the children.
  2. The Australian Government Department of Health endorses the benefits of immunisation, demonstrating that vaccination is in the children’s best interests.
  3. Given that the mother was so vehemently was opposed to vaccination, which the bulk of medical information supports, it was in the children’s best interests that the father be allocated parental responsibility regarding the issue.
  4. Court orders should be final and look to the future. Since COVID-19 vaccinations will likely become mandatory soon, the father’s order would avoid further court proceedings. In that regard, the mother had stated under cross-examination that she was opposed to receiving a COVID-19 vaccination.

The Independent Children’s Lawyer submitted that the risks of infectious diseases should be minimised by immunisation, which itself brings only a very low risk. The Independent Children’s Lawyer therefore supported entrusting the father with responsibility in respect to immunisation of the children.

The Court’s view

After hearing the evidence, and the views of each party, the Court found that:

  1. Whether or not a child is to be vaccinated involves a number of variables and is a decision that requires medical advice. The mother was not a medical practitioner and the material she relied upon did not support a general contention that children should not be vaccinated.
  2. By her own admission, the mother accepted that adverse effects from vaccinations are rare and that most Australians are vaccinated against previously widespread infectious diseases.
  3. Although the mother may have had a more active involvement in the children’s health, the father would be more likely to accept expert medical advice based on the commonly accepted opinions of peer medical professionals and established in public health policy.
  4. In considering the children’s best interests pursuant to the Family Law Act 1975 (Cth), the Court must give greater weight to the protection of a child from physical or psychological harm and, among other things, whether it is preferable to make the order least likely to lead to further proceedings.
  5. The parents’ diametrically opposed attitudes meant that they were unlikely to reach agreement. If no order was made, then the children would by default not be vaccinated unless the father commenced further proceedings. The children would also be practically deprived of vaccination against COVID-19.

The outcome

The Court considered that any orders made should facilitate effective decision-making concerning the children's vaccination based on current medical advice. Such orders are in the children’s best interests.

The Court therefore made Orders that:

  1. The father be allocated sole parental responsibility in relation to the children’s vaccinations.
  2. The father ensure that the children be vaccinated according to the recommendations of their treating GP.
  3. The mother be consulted before the children received vaccinations.
  4. The mother be given an opportunity to raise concerns with the GP prior to the children being vaccinated; and
  5. The mother be restrained from giving advice, opinions or making statements to the children in relation to vaccinations contrary to the GP’s recommendations.

What does the decision mean?

The decision highlights that, notwithstanding the range of considerations that may be relevant to the vaccination of children, the court will ultimately be guided by what’s in the best interests of the children and make orders accordingly.

If you need assistance with a parenting dispute, we invite you to get in touch with our highly-skilled team of family lawyers.

Makinen & Taube [2021] FCCA 1878.

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