29 Apr 2015
Immunisation in Australia

Vaccine preventable diseases in children include:
• Haemophilus influenzae type b (Hib)
• Hepatitis A
• Hepatitis B
• Diptheria
• Tetanus
• Human papillomavirus (HPV) (12-13 years of age)
• Influenza
• Meningococcal disease
• Pneumococcal disease
• Pertussis (whooping cough)
• Poliomyelitis
• Rotavirus (cause of severe gastroenteritis in children)
• Varicella-zoster (chickenpox) 
• Mumps
• Measles
• Tetanus
Children are immunised at birth and at the 6 month, 12 month, 18 month and 4 year mark.  Now too children are immunised against HPV at the 12 – 14 year mark.
The Australian Childhood Immunisation Register, along with a number of other organisations, monitors rates of immunisation in each state and nationally.  The coverage data for the December 2013, March 2014, June 2014 and September 2014 quarters across Australia (in relation to fully immunised non indigenous children) is as follows:
– 12 – < 15 months – 90.57% 
– 24 – < 27 months – 92.48%
– 60 – < 63 months – 91.98%
The number of parents choosing to not immunise their children (called conscientious objection to immunisation) has risen significantly in recent times.  Over the past 14 years the number of conscientious objectors (that is, the number of children for whom parents have completed the Australian Childhood Immunisation Register Conscientious Objection Form (“CI Form)  has risen as follows:
Number children with conscientious objection recorded
31 December 1999 – 4,271
31 December 2007 – 20,737
31 December 2013 – 35,698
These figures of course reflect only those parents who have completed a CI Form.  It is logical that there may be others who have chosen to not immunise and have not completed a CI Form.  By way of background, the CI Form (IMMu12), must be signed by a doctor and sent to the Register where a conscientious objection is recorded on the ACIR – the form is required so that the child can meet the immunisation requirements for receipt of family assistance payments where their parents do not want them to be immunised.  
What is the issue for family law?
It is becoming more commonplace for separating or separated parents to disagree on the issue of whether to immunise their children, or whether to continuing to immunise their children once they have commenced the program of immunisation.  
A parental conflict over immunisation also comes into play when parents seek to travel with their children to a destination that carries a strong recommendation regarding immunisation against certain diseases.  
If either parent files an application in the Family Court seeking orders that a child be immunised, or alternatively seeking an injunction preventing the other party from immunising a child the conflicted couple will find themselves before the Family Court.
What will the Court decide in situations where parents can’t agree on immunisation?
There have been a number of Family Court decisions in recent years dealing directly with immunisation in the context of an overarching parental conflict.  The decisions in these cases provide very helpful guidance to parents who find themselves involved in proceedings over the issue of immunisation.  Two are highlighted below.
Kingsford & Kingsford [2012] FamCA 889
In this case the Mother sought orders by way of an amended response that the child be immunised in accordance with homoepathic principles (called homeoprophylaxis).  She also sought an injunction preventing the Father from immunising the child without her written permission.  The Mother’s amended response arose out of an incident involving the Father’s wife (Mrs Kingsford) where she took the child to a medical centre and the child was immunised in the usual fashion for a child of her age.  Up until that point the Mother had followed the homeoprophylaxis immunisation approach.
The court considered medical evidence presented by two doctors and the mother and father.  The question before the Court was whether it was in the child’s best interests to continue to be traditionally vaccinated, or to continue to receive homeoprophylaxis.  The court confirmed the approach – that the best interests of the child was the paramount consideration, but not the only consideration.
The Court considered the evidence of Drs G and J and found that the efficacy of homeopathic vaccines in preventing infectious diseases had not been adequately 
and scientifically demonstrated.  Further the Court stated that as the child was already 8 years old, the risk of her contracting vaccine preventable diseases was reduced but was not nil.  Her Honour Judge Bennett did accept that both forms of immunisation carried some low level of risk, but found that the risk of harm of a traditional vaccination program was not so great as to outweigh the risk of infection.
Duke-Randall & Randall [2014] FamCA 126
This decision involved two children, aged 8 and 7.  Neither had been vaccinated, and both had suffered bouts of whooping cough.  Interestingly the Father gave evidence that during his cohabitation with the mother there has been a lot of debate about the issue of vaccination and that during the marriage he had agreed with the mother’s anti-vaccination views to keep the peace.  
Professor K assessed both children for allergies and sensitivities and provided a report to the court.  Professor K’s findings included that vaccination was not contraindicated in either child and she recommended a catch up schedule for vaccination for both children.  The Mother did not contest this evidence.
Evidence was presented by the Father that the children had been restricted in their activities as a result of not being immunised.  He provided the example of the PCYC policy that a child’s immunisation history must be provided to the service upon enrolment – such a policy would preclude the children participating in PCYC events.
Again, the judgement highlighted that the best interests of the child were paramount, and that the best interests principles and pathway was well established.  Judge Foster found that there was no evidence before it of any risk to the children in being vaccinated against otherwise preventable diseases by routine vaccinations, and made orders that the children be vaccinated.
Summary

Thus far Family Court decisions on the issue of vaccination have considered it in the best interests of children to be vaccinated against preventable diseases with traditional vaccinations.  Parents should therefore expect that future cases will result in orders for immunisation unless there is clear scientific evidence of an increased risk to a child from immunisation, and that evidence is before the court.
For other cases involving immunisation see:
Redden & Mains [2010] FMCAfam 1338 (9 December 2010)
Flynn & Jeffcott [2011] FMCAfam 1239 (25 November 2011)
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

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