The Federal Circuit and Family Court’s approach to the COVID-19 vaccination of children was recently considered by a Judge at first instance in Makinen & Taube 
FCCA 1878 (16 August 2021)
The brief facts in this case were:
- The parents had agreed to final orders, whereby they would have equal shared parental responsibility of their two children, aged 12 (Child X) and 8 (Child Y); the children would live with their mother; and spend substantial and significant time with their father.
- The Mother opposed the children being immunised or vaccinated relying on literature as to “the harm vaccinations can bring to children,” and sought an injunctive order preventing the father from vaccinating the children.
The major arguments presented:
- The mother quoted various literature arguing that “it is usually not possible to predict whether an individual group will react to a vaccine, or whether a reaction will be mild to serious” . She also stated that as she suffers from a thyroid disease, her children would be susceptible to adverse effects from a vaccine . Her attitude was that “the cure of disease after it is contracted is better than prevention of the disease” [33(b)].
- The independent children’s lawyer (‘ICL’) and the father relied upon the recommendations of the family consultant who prepared the CDC memorandum and the Family Report, which stated that children not being vaccinated was “contrary to the State and Federal Government health recommendations” and that there is “no medical information to suggest [the children] are at any escalated risk of negative vaccine outcomes” .
The Court’s reasoning was:
- While the court reviewed the literature relied upon by the mother , Judge Taglieri held that greater weight ought be given to reputable medical and scientific journals over the opinions expressed in literature annexed in the mother’s affidavits .
- Taglieri found that the mother’s evidence demonstrated a strong bias against vaccinations of any kind, developed from hearsay information from a friend/acquittance prior to the children’s birth. Such entrenched views against vaccinations were held to demonstrate that she would likely push back and reject the children being vaccinated, even if it is recommended and deemed necessary by a medical professional.
- While Judge Taglieri acknowledged that the mother’s attitude against vaccinations is based on her genuine beliefs, Taglieri did not regard her attitudes or beliefs to be reasonable on all the evidence before the court. Rather, the literature she relied on simply identified a very rare “potential for auto-immune, inflammatory or neurological conditions”  when vaccinated.
- In upholding the best interest of the children, Judge Taglieri held that effective decision-making concerning vaccinations of the children must be “based on current medical advice,” noting that “qualified doctors owe professional duties of care that apply to giving vaccines as a form of treatment”.
The Court made orders including that:
- the father have sole parental responsibility for medical decision-making regarding vaccination/immunisations in accordance with the National Immunisation Program or as recommended by the children’s general practitioner .
- In Judge Taglieri’s view, the Australian Immunisation Handbook is the “basis for public health policy of the Commonwealth and State governments for the benefit of the community” .
- As risks associated with vaccines are “zero to negligible” , the act of being vaccinated achieves the greatest good for the greatest number of people, thus is for the benefit of the community. This reflects a utilitarian rule of law (Bentham, Austin, Mill) whereby citizens play an active role in the broader health and safety of those around them.
At O’Sullivan Legal, we are Sydney based family lawyers. Our practice is almost exclusively in the area of family law. The issue of parental responsibility will often present it itself in family law matters. If we can assist you, please call us (02) 8114 4511 or email us your enquiry to