In January 2016, the ‘No Jab, No Pay’ policy was implemented in Australia and currently requires that children under the age of 20 years are fully immunised before parents can receive the Family Tax Benefit.[1] Since then, Victoria, New South Wales and Queensland have also implemented a ‘No Jab, No Play’ policy which has the potential to exclude children who are not fully immunised from childcare centres and kindergartens.[2]
But what happens when separated parents disagree about whether to immunise their children? What happens when all other avenues of dispute resolution have been exhausted and the Family Court is left to make the decision?
There has been a string of Family Court cases which clarify the likely outcome if separated parents proceed to court over the issue of immunising their children. As per the Family Law Act, the best interests of the child are always paramount. The following guidelines have emerged in cases where disagreeing parents have asked the court to decide the question of immunisation:
- The specific circumstances of the child/ren will be considered;
- The views of each parent will be considered but the court is more likely to accept expert medical and/or scientific recommendations as to the child’s best interests; and
- Where there are competing expert opinions, the court will usually make a choice as to which opinion is preferable.
The 2012 case of Kingsford involved a child ‘T’, born in 2004 and aged eight years at the time of trial.[3] The court made orders in 2011 that the child live with the mother and spend time with the father on alternate weekends, for half of school holidays and with arrangements for special occasions.
The child lived with the mother in what the mother described as a “simple and healthy way of life” where they ate organic and unprocessed foods and avoided toxins as much as possible. The mother sought that the child be ‘homeopathically immunised’ by her and that the father be restrained from immunising the child.
Without the mother’s prior knowledge or consent, the father allowed his new wife (the child’s step-mother) to take the child to receive some traditional vaccinations in January 2010.
The court considered evidence of both Dr J, who had a Bachelor of Medicine and a Bachelor of Surgery and was a Fellow of the Royal Australian College of Physicians, and Dr G, who had an Honors degree in Economics and pursued a career in financial services before becoming a homeopathic practitioner. The court preferred the evidence of Dr J.
While the court criticised the father’s method of having the child immunised without the mother’s prior knowledge or consent, it ordered that the child undergo a program of traditional immunisation. Maintaining that the child’s best interests were paramount as per the Family Law Act, Judge Bennett considered “the different roles which each parent has in the child’s life”, “the relationship between the child and the other children in the father’s household with the stepmother” and “the benefits and negligible risks associated with traditional immunisation” amongst other factors.[4]
The 2014 case of Duke-Randall and Randall involved a couple who married in 2002 and separated in 2010.[5] They had two children, child ‘J’ born in 2002 and child ‘L’ born in 2004. Interim orders were made in February 2012 granting the father sole parental responsibility and for the children to live with him.
While the father considered that it was in the children’s best interest that they be traditionally immunised, the mother filed an application in late 2013 seeking to restrain the father from having the children immunised as she was concerned about potential allergic reactions.
The father reported that the children were no longer able to participate in gymnastics classes as unvaccinated children were excluded from the program. The children were unable to attend a wedding in Indonesia with their father as they would have needed to be vaccinated.
There was a single expert report of Professor K admitted to the court which concluded that the children were both healthy and able to receive vaccinations as per the recommended vaccination schedule. The court concluded that the mother had been “narrowly focused” on the issue, to the point that the best interests of her children had been subsumed.[6] The court found that it was in the best interests of the children that they be vaccinated traditionally.
In the 2017 case of Panno, the court made orders that the parents do all things and sign all documents required to have their children vaccinated.[7] The children, child X born 2009 and child Y born 2011, were seen by a registered paediatrician, Dr T, who reported that there was no “medical contra-indication to routine immunisation”.[8]
The mother was found to have contravened the initial orders by preventing the immunisation of the children and it was later ordered that the father temporarily have sole parental responsibility for the purposes of having the children immunised.
Immunisations are just one example of the parenting matters that may become contentious after divorce or separation. A Parenting Plan can be a useful way to set out the process through which you and your former partner might seek to resolve a dispute, should one arise.
If you are experiencing difficulty coming to agreement with your former partner in regards to immunisation or any other parenting or family law matter, please contact Rowan Skinner and Associates Lawyers for advice.
[1] http://www.ncirs.edu.au/consumer-resources/no-jab-no-play-no-jab-no-pay-policies/
[2] http://www.ncirs.edu.au/consumer-resources/no-jab-no-play-no-jab-no-pay-policies/
[3] Kingsford & Kingsford [2012] FamCA 889
[4] Kingsford & Kingsford [2012] FamCA at 122.
[5] Duke-Randall & Randall [2014] FamCA 126.
[6] Duke-Randall & Randall [2014] FamCA 126 at 142.
[7] Panno & Panno [2017] FCCA 305
[8] Panno & Panno [2017] FCCA 305 at 19.
Rowan Skinner is a highly skilled family lawyer with over 35 years of experience across various legal roles and jurisdictions. Rowan specialises in resolving family law disputes such as divorce, financial settlements, child custody and domestic violence cases. Through his diverse and extensive experience, Rowan has a deep understanding of the complexities and nuances involved in family law. Rowan is a skilled negotiator and litigator who follows a compassionate and client-focused approach which prioritises helping you navigate what can be an emotional and challenging time.
