When parties separate and there are children involved, there are often many parenting issues that parties do not agree on. Immunisations can be one of the contentious issues. If parties can not agree on this subject, it is an issue that can be decided on by the Family Court.
The Family Court is a discretionary jurisdiction, meaning that there is no ‘black and white’ answer but it will depend on the facts of the case. The Court will have regard to Section 60CA of the Family Law Act, which states that in deciding whether to make a particular parenting order in relation to a child, the Court must have regard to the best interest of the child as the paramount consideration. Parents can use this principle to either advance or oppose an argument for immunisation of their child. The Court may consider the child’s allergies, if the child has a low immune system or even possible cultural concerns when deciding if a child should have vaccinations.
Australia has one of the highest vaccination rates in the world, and it has generally accepted that immunisations are one of the most effective public health measures. However, some parents fear that vaccinations may have harmful or adverse side effects on their children.
The Family court have been faced with this decision and one of the most notable cases is Duke-Randall & Randall (2014) FamCA 126. This particular case was focused on two young children who went unvaccinated due to the mother holding a staunch ant-vaccination position, and the father growing increasingly concerned that his children were becoming notably disadvantaged due to the fact that they were not permitted to participate in certain extra-curricular activities as they were not vaccinated. The father stated that the health of the children would not be at risk should they be vaccinated. A single expert immunologist was appointed who provided evidence to the court that it was in the nest interest of the children to be immunised, and that there would be no adverse risk to either child.
The expert evidence was accepted, and it was held that it was in the best interest of the children to be immunised as there was no evidence to suggest otherwise. Just Foster determined that the risks of harm would be outweighed by the benefits of vaccinations.
In the case of Kingsford and Kingsford (2012) FamCA 889, parties disagreed as to whether their 8 year old daughter should be vaccinated through traditional methods or through homeopathy. The mother argued that homeopathy was the most effective way to treat her child, and argued against the father’s expert evidence of a doctor who supported traditional vaccinations. The risk/benefit of traditional vaccinations was considered, and the evidence was given that 2 out of 1000 children who contract measles experience inflammation of the brain, which can lead to seizures, brain damage or death. However this only occurs in one in a million cases where the child has been vaccinated.
The Court found that it was in the best interest of the child for the child to be traditionally immunised.
If you are experiencing any difficulties like this or if you would like further information in relation to family law matters, please contact our Family Law specialists at Peter Fisher Lawyers on 8296 2690, email us at firstname.lastname@example.org or visit our website www.peterfisher.com.au.