Vaccination

Parenting after separation raises all kinds of issues for parents – some I have touched on previously, such as my recent post on technology use. But some of these issues cannot be resolved between the parents and require a Judge to make a determination as to a course of action. The most common that come before the Court relate to schooling or medical issues.

A recent example, from the past month, is a case decided by the Family Court in relation to the vaccination of the parties’ children.

The case of Duke-Randall & Randall [2014] FamCA 126 is part of a long history of litigation between the parents in relation to their two children - anonymoused as J (born 2002) and L (born 2004). The mother (“Duke-Randall”) commenced proceedings in June 2011. Interim Orders were first made on 13 December 2011 with the children living with both parents on a week-about basis. Further Interim Orders were made on 13 February 2012 that allocated sole parental responsibility for the children to the father and for the children to live with him. The final parenting arrangements are still pending determination by the Court.

On 11 March 2013 the Court made an Interim Order – on the instigation of the mother – that both parties were restrained from vaccinating the children prior to the issue being determined by the Court.

It was the mother’s position that the children should not be vaccinated as they were at risk of negative reaction to the vaccination. Since 2011, when she first raised the issue, the mother maintained that medical evidence would support her position. However, the mother acknowledged that she had not filed relevant affidavit material, she had also failed to organise for the Court appointed expert to be available for cross-examination and had failed to organise an affidavit from her own expert.

The father’s position was that it is in the best interest of the children to be vaccinated in accordance with the recommendation of the Court appointed expert. The father stated to the Court that had he not been restrained by Court Order, he would have attended to having the children vaccinated. He also stated: that the children were excluded from YMCA holiday care if not vaccinated, a member of his family has expressed reluctance to allow her children contact with his children if they are not vaccinated, and their school requires the children to be vaccinated in accordance with NSW Health Guidelines a conscientious objection form lodged – he is not a conscientious objector and is concerned as to the children being excluded from school during any infectious outbreak.

The Court appointed expert, Professor K, concluded that neither child presented with any known contraindication to vaccination. The Court found Professor K’s evidence to be “a personal history of allergies, except for some specific instances, is not a contraindication for vaccination, nor is a family history of adverse reactions to vaccines. Specific instances include egg allergy, known sensitivity to neomycin or streptomycin and gelatine allergy. Children with impaired immunity or immunosuppression should not be given live vaccines, but it was the Professor’s opinion that this did not apply to the children in question.” The Professor concluded that “the children are both healthy and able to receive vaccinations as per the recommended vaccination schedule. The children do not have any increased risk of side-effects or adverse events than the general population. Therefore, whether or not to go ahead with vaccination remained a philosophical question for those making the decision and not one based on any increased risk in this case.” The Professor recommended a catch up schedule for vaccination for the children.

Justice Forest stated that “since the mother has raised the immunisation issue, she has been narrowly focused on it, perhaps to the point where the best interests of her children have been subsumed.” The Judge went on to say that the Court had given the mother “ample opportunity to put on evidence in support of the children not being immunised and as to any risk of vaccine damage, she has not done so. Instead she has created only delay, which has been to her benefit in postponing the Court’s determination of this issue.”

The Court determined that it is in the best interests of these children that they be vaccinated:  there is no evidence before the Court that these particular children would be adversely affected by being vaccinated and there is no evidence of any risk to the children in being vaccinated against otherwise preventable diseases by routine vaccinations. The Court made orders accordingly.