The Vaccination Debate

Has A Dispute Played Out in Court and How Did the Court Handle the Competing Positions of an Anti-Vaccination Mother and a Pro-Vaccination Father

With the recent media attention upon Vaccination and the Government legislating in relation to the issue so as to try and force people to vaccinate their children or face financial penalties, we decided to check whether Australia’s family law system had considered the issue or been called on to decide a case involving a fight over whether or not to immunise children.

After a short search, we located the decision of the Court in Duke-Randall & Randall [2014] FamCA 126 (delivered by Judge Foster of the Family Court of Australia on the 12 March 2014).

The facts of that case involved:-

• The Mother who held an anti-vaccination position;
• The Father who was pro-vaccination, but had acquiesced in relation to vaccinations during the couple’s relationship given the Mother’s staunch and unwavering beliefs;
• The couple’s two children, who were 12 yrs and 10 yrs of age at the time of determination of the matter; and
• A focus at the hearing of the matter (i.e. the trial) upon the discrete issue of whether the children should be vaccinated in the absence of the parents’ agreement.

Despite the sensational media coverage about the competing positions in the public arena, the Court adopted a logical and orderly approach to the issue, simply by taking up the process set out in the Family Law Act 1975. In other words, it was “back to first principles”.

The Court restated the position that the welfare of the children was its paramount consideration and that it ought proceed to make Orders which it was able to determine are in the children’s best interests.

Judge Foster pointed out that he considered the matter to have arisen in the context of the Court’s protective concerns.

Judge Foster was at pains to point out that the Court had managed the issue in the following way to the point of him making his decision:-

• The Father had consented to an injunction restraining immunisation happening until the Court heard a full argument of the competing positions;
• The Court appointed an Independent Children’s Lawyer to represent the interests of the children and present a case on their behalf – so as the children had an “honest broker” who could advocate for their interests, independently of the positions of the parents;
• The Court appointed a Professor to act as a Single Expert, to examine and review the children, their medical histories and to give evidence about the appropriateness of immunising those particular children (remember, this will be a subjective assessment from case to case and outcomes may vary if there are indicators that children should not be vaccinated);
• The Court permitted the Mother between July 2013 and the December, 2013 hearing, time to file medical evidence which provided an alternate opinion to that expressed by the Single Expert Medical Professor; and
• Despite the elapse of time, the Mother filed no such evidence.

We can speculate all we like about why the Mother didn’t do this….it may have been that she could not find someone who would, as a medical practitioner, be prepared to express in Court in parenting proceedings, an opinion that vaccination was contrary to a child’s best interests. There may have been an alternate reason – but the case does not explain what it was.

Based on the Medical Professor’s Single Expert evidence, which was unchallenged, the Court determined that immunisation of these children, including a regime for “catching up” the missed immunisations from earlier in their childhood, was appropriate.

The injunction was lifted and the Father was at liberty to engage in the schedule of immunisations which the Professor had recommended.

Based on this case and its management, the following is clear:-

• The question to be answered from case to case, is whether immunisation is in best interests of the children the subject of the proceedings;
• The question won’t be determined on competing views or the dialogue under exchange and comment in the media. Instead, it will be determined by a medical expert;
• If you are against vaccinations, expect to be required to locate and pay for an expert to present cogent evidence why vaccination is not in your child or children’s best interests; and
• If there are competing opinions between experts, expect that the Court will need to determine which expert’s opinion should be followed.

Cases about vaccination are likely to be expensive, given the cost of medical testing and expert medical reports. Be prepared to spend at least within the range of between $10,000 and $15,000 using experts and lawyers to argue or defend the case, unless you choose to act on your own behalf.

Do not expect the Court to be involved in the “hype” about the topic in the media or to adopt the opinions of campaigners who advocate one way or the other – that evidence will not “cut it”. Instead, the Court will need qualified experts who have examined the children and who are prepared to critique the opinions of the expert who advocates against your position and be prepared to appear in Court to back the opinion up. The more impressive and experienced expert witness may be the more persuasive, so consider their “bed side manner” and their likely “presentability” as a witness when the time comes.

A waifish alternative hipster medical practitioner without pre-requisite experience will not be likely to win the case for you.

Our reminder is not to get carried away with the “movement” or the debate and to focus on how an ordinary case proceeds via the legislative pathway and framework established by the Family Law Act 1975.

As Ms Duke-Randall found out in her case, she needed concrete evidence which supported the position that it was not in her children’s best interests to be vaccinated so as to maintain her position. She simply failed to produce any evidence that there was risk to her children of vaccination.