COVID-19 vaccinations for children: when separated parents disagree

Jonathan Statham

09 Dec 2021

Topics

  • Family Law

With vaccinations currently dominating the media, it’s only fitting that we add fuel to the fire by discussing it further in the context of a recent family law decision before the Federal Circuit Court of Australia.

In Makinen & Taube [2021] FCCA 1878 (16 August 2021), Judge Taglieri heard a father’s application seeking sole parental responsibility in relation to vaccinating his children, aged 12 and eight years.

The mother’s evidence

The mother opposed the application, as she did not want the children being vaccinated against any disease. In support of this, she relied on:

  • The Australian Immunisation Handbook
  • Research in relation to ‘the harm vaccinations can bring to children’
  • Medical literature from France
  • Various studies dealing with the negative impact of vaccines on the immune systems of children and adults.

Regarding the Australian Immunisation Handbook, the mother relied on a specific statement; ‘it is usually not possible to predict whether an individual group will react to a vaccine, or whether a reaction will be mild to serious.’ In her view, this raised doubt in relation to how safe it was for her children to be vaccinated.

The Independent Children’s Lawyer

The children were legally represented by an Independent Children’s Lawyer (ICL). The ICL relied upon health advice from the Federal Government, as well as the Family Report (‘the Report’) in reaching their view.

The Family Report

The Report stated there was no evidence to show that children were at an increased risk of being vaccinated. Further, it stated that the mother’s failure to vaccinate the children was inconsistent with the recommendations of the government.

No expert medical evidence

Notably, neither party engaged a medical expert to assess the particular circumstances of the children, their individual health and condition, including whether they may suffer allergies or, for example, autoimmune conditions.

COVID-19

In these circumstances, her Honour took notice of the following points:

  • COVID-19 is a disease affecting adults and children that causes personal suffering and illness and, at worst, death.
  • It is a contagious disease (particularly the Delta strain).
  • These facts have been regularly broadcasted to the Australian public by State and Commonwealth government health officers since 2019 and are common knowledge.
  • The Commonwealth government’s recommendations about vaccinations were based on publications from widely known, reputable and leading scientific and medical journals.

Judge Taglieri took judicial notice of the source of the advice being from the World Health Organization (WHO), the United Nations body responsible for international public health.

Decision

Judge Taglieri did not consider it appropriate to order that a particular vaccination be given to the children. As the father was likely to heed medical advice about vaccinations, however, Judge Taglieri deemed it appropriate for the father to have sole parental responsibility in relation to vaccinating the children.

This decision was made in circumstances where:

  • There was no expert medical evidence addressed at the specific needs of the children as it pertained to vaccinations.
  • The literature relied upon by the mother did not support the view generally that her children should not be vaccinated against any disease because vaccines were harmful to them.
  • The mother did not provide any evidence about the risk of adverse outcomes being greater than the risk of the children contracting any particular disease that vaccination was likely to prevent.
  • The literature forming the basis for the Australian Immunisation Handbook held greater weight than the opinions expressed in the articles and literature relied upon by the mother.
  • The evidence relied upon by the mother simply identified a potential for adverse outcomes in certain cohorts when vaccinated.

Key message

If you do not want your children to receive vaccinations, consider expert medical evidence which proves that:

  • Your child is likely to suffer an adverse reaction due to vaccination
  • The risk of an adverse outcome is greater than the risk of contracting the disease which the vaccination is likely to prevent.

How can we help?

Should you require advice or legal representation in relation to disputes about vaccinating your children against COVID-19, please don’t hesitate to contact our Family Law Team on 02 6285 8000 or by email.