Vaccinations. A controversial question for the Family Courts.
Vaccinations are currently in the spotlight with the race to find a vaccine for COVID-19. The debate over mandatory vaccines has arisen again, with the NRL recently requiring players have the seasonal flu shot before taking the field.
The decision over whether to vaccinate or not occasionally comes before the Family Courts, generally when one party wants to vaccinate and the other does not. In this article we look at how the Courts have approached this controversial question in the past.
What is the starting point?
The starting point for the Court in any matter involving children is a consideration of what will be in the children’s best interest. The Courts have affirmed that this remains the starting point for matters where they are being asked to make decisions about whether a child should be vaccinated.
In the matter of Randle & Randle [2014] FamCA 126 the Court considered a case where the parties had not vaccinated the children during the marriage, but the Father sought to have the children vaccinated following separation. The Father claimed that he had agreed not to vaccinate during the marriage to keep the Mother happy.
In considering the Father’s application, the Court looked at the need to protect the children from a risk of harm. This is a primary consideration under section 60CC of the Family Law Act. The Court noted: -
There is no evidence before the Court that these particular children would be adversely affected by being vaccinated, and the expert has recommended that they bring their vaccinations/immunisations up to date and has put forward a recommended vaccination schedule, set out at Appendix 1 of her affidavit. It is the father’s evidence that he will consult the Professor and/or seek other professional advice in respect of what vaccinations the children are to receive…
There is no evidence of any risk to the children in being vaccinated against otherwise preventable diseases by routine vaccinations.
[Randle & Randle at 157 and 160]
The Court also took into consideration that the children were unable to attend gymnastic classes, travel overseas, or have contact with the paternal family if they had not had their vaccinations. [Randle & Randle at 159]. When weighing up all the considerations the Court held that it was in the children’s best interest to be vaccinated.
Vaccinating a child in secret
In the matter of Kingsford & Kingsford [2012] FamCA 889 the Court were presented with a matter where the Father had the child vaccinated without the Mother’s knowledge.
The Mother filed proceedings seeking that the child receive homeopathic immunisations. The Father sought the child have traditional vaccines. During the proceedings, and before any Orders were made, the Father’s wife took the child to be vaccinated without the Mother’s knowledge. The Father was aware of his wife’s actions and that the Mother would object.
The Court ultimately held that it was in the child’s best interest to receive traditional vaccinations. However, they were highly critical of the Father’s unilateral behaviour. The Court stated that: -
The father’s behaviour in having the child immunised in secret reflects very poorly on his attitude to the responsibilities of parenthood. I reject his position that “the end justifies the means.”
[Kingsford & Kingsford at 124]
Even if the Court were to support vaccines, like in the case of Kingsford, such unilateral action may lead to the Court questioning a party’s parental capacity and jeopardise other aspects of their case such as Orders for the children to live with them.
These types of matters are complex. If you need advice, make an appointment with one of our solicitors by calling our office on (02) 6800 2660 or using our Online Service Portal.
Please note: the information in this article is general in nature. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.