Family Law Blog

To Vaccinate or not to Vaccinate - What Does the Family Court Say?

Posted by Karina Ralston on 27 Apr 2018

Assisted by Madison Kelly

There is no doubt that regardless of the general sturdiness of a relationship, at one time or another all parents find themselves in disagreements with regard to the raising of their children.  Arguments over how to best raise children are often more prevalent in the case of separating or separated parents.  One particularly hot topic, and an increasingly common area of debate amongst parents is the issue of child vaccinations.

It's quite likely that simply through being active on social media and paying attention to traditional news outlets, you will have already either read about or heard from the opposing sides of this ongoing debate - to vaccinate or not to vaccinate.  

The most common argument put forward by those parents in the anti-vaccination camp is that vaccinations may have harmful or adverse side effects on children.  In opposition to this, pro-vaccination parents fear that their children are at risk of contracting illnesses or diseases (or be unable to attend child care or other activities) should they be in contact with unvaccinated children.

So, how does the Family Court address this contentious debate?  Ultimately, the Judge will make his or her determination following a review of the particular facts and circumstances unique to each individual case.  Nevertheless, past cases help in giving us some insight into both the relevant and potential considerations of the Court.

One relatively recent case throughout which the issue was discussed in length is that of 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 anti-vaccination position, and the father agreeing to her view "for the sake of peace in the household".  In oral evidence, the father added that he was "simply unable to negotiate with the mother on this issue during cohabitation and still could not".

Following the divorce of the children's parents, the father grew 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 (in this case, gymnastics classes).  This was due to the activities' organisers being unwilling to allow unvaccinated children to take part in the club.  The father asserted that the health of the children would not be at risk should they be vaccinated. 

Ultimately after hearing expert evidence, Justice Foster determined that it was in the best interest of the children to be vaccinated, and that the risks of harm would be outweighed by the benefits of vaccination.

According to Justice Foster "there is no evidence before the Court that these particular children would be adversely affected by being vaccinated".  In turn it was noted that the children "will be able to attend gymnasiums that they were otherwise unable to attend due to their unimmunised status.  They will be able to receive recommended vaccinations in respect of travelling to overseas countries in the future and be protected from the risk of disease and infection.  They will be able to resume contact with extended paternal family members who were otherwise concerned about bringing members of their families into contact with unimmunised persons."

Whilst the Family Courts have favoured the view that vaccination of children is in their best interest, the court is not restricted to this position.  For example, the court may consider the child's allergies, the overall health of the child (e.g. low immune system) or even potential cultural concerns.  

Conclusion

The Family Court is a discretionary jurisdiction (meaning there is no 'black and white' approach to parenting matters) and ultimately they will aim to protect the best interest of the children.  

If you are experiencing any difficulties or disagreements regarding the immunisation of your children, please do not hesitate to contact one of our Accredited Family Law Specialists - or simply get in touch with: