Separated parents and child immunisation: who has the right to decide?

The immunisation/vaccination of children can be a source of conflict for parents experiencing a separation. The purpose of immunisation is to protect individuals from illness caused by infection and against the complications caused by those infections including in serious circumstances, chronic illness and death.

Parental beliefs about the side effects that immunisations may have on children are one of the main reasons for incomplete immunisation schedules in Australia. In an attempt to increase vaccination levels, the Australian Government introduced the ‘No Jab, No Play’ and ‘No Jab, no Pay’ laws, which came into effect 1 January 2016 [1]. In NSW this means that children who are not fully immunised may be excluded from childcare services and schools. In addition the Family Tax Benefit part A can be withheld from a parent if a child is not immunised in accordance with the NSW Immunisation Schedule.

The Family Court and Federal Circuit Courts have seen a number of cases relating to conflict between parents over the immunisation of their children in recent years with parents relying on the evidence of specialist witnesses in support of their respective applications.

In the matter of Duke-Randall & Randall [2014] FamCA 126, the father sought to have his children vaccinated, which the mother opposed.

Primarily, the father relied on medical evidence of Professor K (Senior Consultant Physician Immunology and Allergy) whose evidence indicated the children did not have increased risk of side-effects or adverse effects to vaccination than the general population (the children had had skin and allergy related problems when they were younger).

Foster J at [158] of his judgment stated “once vaccinated, the children will no longer be restricted in various ways which they appear to have been to date”.

As with all parenting matters before the Court, the overarching consideration when determining whether a child should be vaccinated will be determined on what is in the best interests of that child.

If you and your former partner are in disagreement as to whether your child/ren ought to be vaccinated, we recommend that you seek the expert advice of one of our family lawyers.

This article was co-authored by Law Cadet Tessa Noll.

[1] Public Health Act 2010 (NSW) Part 5, Division 4 Vaccine Preventable Diseases.

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