The vaccination debate in family law matters

Parenting a child involves big decisions: their religious orientation, the nature and quality of their education, their health care. When parents of a child are in a harmonious relationship, their respective stance on these big decisions are usually aligned.

After all, similar values and world views are often what attracts us to a partner. But things can change after separation. Parents’ views on fundamental aspects of parenting can diverge quickly, as their lives take different paths.

What happens when parents disagree about whether or not their child should be vaccinated?

The vaccination debate pits two mutually exclusive beliefs against one another and the stakes are high: a child’s health and well being.

With a potential Coronavirus vaccination on the horizon, we explore the Family Court’s approach to parenting disputes over vaccination of children.


What is vaccination?

 Healthy WA, a WA Department of Health initiative, explains:

vaccine is a product made from killed or live, weakened strains of viruses or bacteria.

When a vaccine is given it triggers an immune response in your body. This protects you if you come into contact with strains of that disease again in the natural environment.


What is the vaccination debate?

Most parents find comfort in vaccination, believing they are taking proactive steps to safeguard their children from disease and serious health problems.

Australia’s national immunisation program provides vaccination against 16 diseases, some of which have caused many deaths in the past.

While the uptake is relatively high, studies show that around 9% of Australian children aged 2 years old are not fully vaccinated. About half of this number is due to limited access and the other half is due to skepticism about vaccination.

Over the years, apprehensive parents have voiced concern over vaccination of their children. Common concerns include immunisation causing autism, causing SIDS, causing asthma and allergies, containing mercury, and weakening or overwhelming a child’s immune system.

Some parents have opted for alternative therapies and homeopathic remedies, over conventional vaccination. Parents already on the fence may be persuaded to side against vaccination because some of the diseases children are vaccinated against are now uncommon (albeit due to immunisation policies).

Studies of thousands of children worldwide have disproven the concerns mentioned above. Further, the overwhelming majority of authoritative bodies consider vaccination to be the most effective medical tool we have to prevent deaths and reduce disease.


The Family Court’s approach

The Family Court is guided by the principles of the Family Law Act 1975 (Cth).

Section 60CA of the Act states that:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Parents use this principle to either advance or oppose an argument for vaccination – depending on which course of action they believe is in the best interests of the child.

The Family Court cannot simply rely on common knowledge about the benefits of and concerns about vaccination. The Family Court must consider medical and scientific expert evidence that is presented in each case and the recommendations made about which course of action – vaccinating or not vaccinating – is in the child’s best interests.


What orders can the Family Court make about vaccination?

Depending on the determination of the Family Court, orders may be made:

  • granting one parent sole parental responsibility, allowing them to make unilateral decisions in relation to all major long term issues affecting a child;
  • granting one parent sole parental responsibility in relation to medical decisions or vaccination only;
  • for one or both parents to do all things necessary to facilitate a child’s vaccination (whether conventional vaccination or alternative therapy); or
  • for an injunction that restricts a child’s vaccination (whether conventional vaccination or alternative therapy).


Disputes over vaccination in case law

Case law provides us with some useful insight into the relevant considerations of the Family Court in matters involving vaccination.

In the case of Kingsford & Kingsford [2012] FamCA 889, the Family Court was asked to decide whether a child should be immunised according to homeopathic principles or by conventional vaccination.

The mother brought an application after the father’s wife had the child conventionally vaccinated at a medial centre, in the usual manner for a child of her age. Up until this point, the mother had followed a homeopathic immunisation approach. The mother argued that the child should continue to be homoeopathically immunised and that the father should be restrained from otherwise immunising the child. The father opposed this.

The mother presented expert evidence of a homeopathic practitioner, not a medical doctor, who had an Honours degree in Economics and former career in financial services. The father presented expert evidence of a medical doctor with a Bachelors degree in Medicine and in Surgery, with further medical qualifications.

After considering expert evidence from both sides, the Family Court found that “the efficacy of homoeopathic vaccines in preventing infectious diseases has not been adequately scientifically demonstrated.” While it was acknowledged that both forms of immunisation carried risks, the risk was fairly low in both forms and the risk of harm from conventional vaccination did not outweigh the risk of infection. The Family Court ordered that the child be vaccinated in the conventional manner.

In the case of Duke-Randall & Randall [2014] FamCA 126, the Family Court was asked to decide whether two unvaccinated children should be conventionally vaccinated. At the time of the hearing, the children aged 7 and 8 respectively had each suffered from multiple incidences of whooping cough in the past.

The mother maintained an anti-vaccination position. The father argued that while during the relationship he had agreed to her position so as not to cause any conflict, he was now concerned for the health of the children and the greater impact it may have on their lives.

A Senior Consultant Physician in Immunology and Allergy was appointed to provide expert evidence to address whether there was any medical reason for the children not to be vaccinated. The medical expert found there was not, and recommended that the children have their immunisations brought up to date.

After hearing evidence from all parties and the medical expert, the Family Court decided that the children should be vaccinated. It found that the mother had failed to present any evidence that the children would be adversely affected by vaccination and following vaccination, the children would be able to participate in activities they were unable to participate in when not immunised.


What about a dispute over the Coronavirus vaccination?

Experts from around the world are working on developing a Coronavirus vaccine. Until it becomes available, we cannot be certain how any parenting disputes over its use in children will play out.

Studies have shown that the virus can infect children, however, they are less likely to have symptoms. Symptoms in children are more mild, they are less likely to develop severe illness and mortality in children due to Coronavirus is rare. Perhaps it might be argued that in children, the risk of harm from infection of Coronavirus does not outweigh risks of a new and relatively under-trialed vaccine?

A long established principle is that vaccination on a widespread scale helps to protect people who are not vaccinated through a process called “herd immunity”. This is where enough people are vaccinated against a disease to stop the infection from spreading.

Once a vaccine becomes readily available, a child’s vaccination may well become a precondition – for eligibility to travel, participate in sport or even attend school in person – to establish this “herd immunity”.

Perhaps it might be argued that by not vaccinating a child against Coronavirus, a parent is restricting a child’s participation in a range of activities without tangible benefit?

We will all have to wait and see on this one.


If you are not sure about how this could apply to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment.

Posted in: Mediation  Separation & Divorce  The Children