Separated and immunising children?
10th July 2015
By Lisa Wagner
Separating parents can sometimes disagree on an immunisation schedule, or indeed whether to immunise their children at all. Separating parents can also argue when they are organising overseas travel with their children to a country that strongly recommends immunising against certain diseases.
The Family Court can step in with disputes over immunisation where parents assume differing positions in respect of whether or not to immunise their child. This is different to situations where parents jointly decide that their child needs a ‘special medical procedure.’ If you or your partner files an application to seek orders that a child be immunised, or seeks an injunction to prevent the other parent from immunising your child, you will find yourself before the Family Court.
What facts do you need to be aware of?
Immunisation can be an issue during the vulnerable period when parents are separating, given that the current immunisation schedule requires children to be immunised at 6 stages between birth and 12 – 14 years.
Immunisation is considered the best way to protect a child from serious diseases. If most children are immunised this in turn protects very young infants or those who can’t be immunised because of medical conditions. It is a common belief that the more parents who immunise their children, the greater our ability to control serious vaccine preventable diseases. According to NSW Health, 95% immunisation coverage is needed for effective disease control. Currently in NSW approximately 90% of children at 1 and 2 years of age are fully immunised. Some areas of NSW account for a much lower immunisation rate and these areas are at a greater risk of outbreaks of diseases like measles and whopping cough. According to the NHPA’s second report on childhood immunisation rates, (National Health Performance Authority, 27 March 2014, Healthy Communities: Immunisation Rates for Children in 2012-2013) the lowest rates of fully immunised five-year-old children in NSW were reported in areas such as Manly (NSW) – ranging from as low as 66.7% up to 83.1% of five-year-old children fully immunised.
The following local areas rated in the lower percentile band of the government’s target of 95% immunisation:
Kurraba Point, Neutral Bay and Neutral Bay Junction 83%
East Killara and Killara 83%
Centennial Park, Moore Park and Paddington 81.8%
Manly and Manly East 80.4%
Haymarket, Sydney, The Rocks 72.1%
What can you do about a disagreement with your partner on this important decision and when does the Court get involved?
In the situation where you and your partner find yourselves in dispute over immunisation and approach the Family Court for assistance, the court will ask “what is in the best interest of the child?
In the cases of Duke-Randall & Randall  FamCA 126, Kingsford & Kingsford  FamCA 889 and Redden & Mains  FMCAfam 1338, the Court has determined that, given there were no contraindications, it was in the best interest of the child to be immunised in each of those cases.
The most recent case that has come before the Court is the case of Duke-Randall & Randall  Fam CA 126. It is an interesting case as it demonstrates the difficulties faced by the Family Court when determining what is in the best interests of the child. This is especially so when both parents have differing views as to how to raise their children and are therefore unable to reach an agreed position. In this case, a father from western Sydney won the right to vaccinate his children after a long battle with the mother, who was opposed to immunisation. The Family Court rejected the mother’s claim that the children (12 and 14 years at the time), were at risk due to allergies. The mother had produced hundreds of documents discussing the risks of vaccination, including the link to autism. The father had agreed to the mother’s anti-vaccination view during their marriage to keep the peace but since their divorce he had changed his mind. Unfortunately the father was unable to negotiate with the mother on the issue. While the parents argued over the issue, the Court restrained both parents from vaccinating the children until the final hearing. However, Foster J later discharged the order and found that the mother had deliberately delayed proceedings and had ignored directions which lead to the “strong inference that she has done so to suit her own end that the issue as to vaccination be delayed for as long as possible.”
Evidence was accepted from an immunology specialist that both children were healthy and did not have any allergies or any other contraindications to vaccination. It was recommended that the children be caught up to the routine childhood immunisation schedule.
In another case, Kingsford & Kingsford  Fam CA 889, the Mother sought orders that the child be immunised in accordance with homeopathic principles. The Mother also sought to injunct the Father from using traditional methods of immunising the child without her written permission. The Court looked at medical evidence from two doctors as well as from the Mother and Father. The issue before the Court was whether it was in the child’s best interests to continue to be vaccinated traditionally, or to receive the alternative homeopathic vaccination program. The Court held that the best interests of the child was the paramount consideration, but not the only consideration. On the evidence the Court found that the use of homeopathic vaccines had not been adequately and scientifically demonstrated in preventing infectious diseases. The Court also found that as the child in this case was already 8 years old, the risk of her contracting any diseases, and there being a contraindication, although reduced, was not nil. Bennett, J accepted that both homeopathic and conventional methods of immunisation did carry some low levels of risk, but found that the risk of harm of a traditional vaccination program was not so great that it would outweigh the risk of infection.
Contraindication – what does this mean?
A contraindication is a specific situation where a drug, procedure or surgery should not be used because it may cause harm to a person. Contraindication is the opposite of indication, which is a reason to use a certain treatment. The Royal Children’s Hospital in Melbourne provides the following information regarding contraindications relating to immunisation:
Absolute contraindications include:
Unexplained encephalopathy after a previous pertussis (whooping cough) containing vaccine – no further doses of pertussis;
Anaphylaxis after a previous dose;
Immunodeficiency – for live vaccines such as Rotavirus, MMR, Varicella)
Relative contraindications include:
Undiagnosed neurological illness. This may be a reason to delay immunisation, however most children with neurological illness can be safely immunised;
Temperature greater than 38.5. It is usually wise to defer immunisation if children are acutely unwell with a fever. However, children with minor coughs and colds can be safely immunised.
“Special medical procedure” v Immunisation
The Court is able to make orders in respect of special medical procedures, based on section 67ZC of the Family Law Act. However, it is necessary to understand the difference between a ‘medical procedure’, which immunisation falls under, and a ‘special medical procedure’, to be able to determine when it is necessary for the Court’s jurisdiction to be enacted. The test for considering whether the Court has authorisation for a particular medical procedure is set out in Marion’s Case (1992) FLC 92-293. Essentially, the Court’s authorisation is required where the proposed medical intervention is:
Invasive, permanent or irreversible; and
Not for the purpose of curing a disease or disability.
Therefore, cases such as those involving sterilisation of intellectually handicapped children, or surgery for children experiencing gender dysphoria are examples of ‘special medical procedures’. In these examples the ‘special medical procedure’ is so invasive and irreversible that parents in these situations need to obtain the Court’s permission to proceed with the treatment.
In comparing ‘special medical procedures’ to immunisation, clearly immunisation of a child can be distinguished from the above mentioned examples. A parent does not need the Court’s authorisation to immunise their child. However, as discussed in the preceding paragraphs, the Court will become involved in immunisation debates when parents cannot agree as to whether or not they immunise their child.
If you and your partner are grappling with immunisation issues and your family is also experiencing a separation, you can be confident that Doolan Wagner Family Lawyers can assist you in navigating the best way forward for you and your child. Call Lisa Wagner on 9437 0010 or email firstname.lastname@example.org. We have Accredited Family Law Specialists and registered Family Dispute Resolution Practitioners here to help you.
These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.