Monday, 14 May 2012
In the case of Redden & Mains  FMCAfam 1338 (9 December 2010) this issue was addressed. From the earliest orders relating to the parenting of the children in the matter, there had been an important, but often overlooked, order in place preventing the children from being immunised. It was the father’s evidence that he only consented to the Injunction to immunisation so he could begin spending time with his daughter.
The father’s new wife was pregnant at the time of the hearing and therefore the issue of the immunisation of his daughter with his former partner had even greater significance, given the health risk of not immunising the first child would pose to his new-born.
Both parties relied on expert medical evidence. The father called a staff specialist (Doctor W) in paediatrics at a hospital who swore two Affidavits and was cross examined. The Mother called a Doctor (Doctor D) at a general medical centre with 27 years experience in clinical practice. Doctor D swore an Affidavit and gave oral evidence.
The mother also called Dr S who held a PHD but had no medical qualifications nor any immunology qualifications. Dr S was an “immunisation sceptic” and the Federal Magistrate believed her evidence to be entirely unhelpful as she was closed to any interpretation other than immunisation having negative consequences. Dr S made outlandish comments during the cross examination such as “Small Pox was not wiped out by vaccination” however could not produce medical journals evidencing same.
Dr S also engaged in conspiracy theories saying “The World Health Organisation is tainted in its recommendations for vaccination because of connections with drug company money”. Dr S refused to consider, nor produced, any material that was pro-immunisation.
The Federal Magistrate stated that the fact that the Mother called Dr S as part of her case gave rise to a significant concern, in that it indicated the propensity of the Mother to go to any length to support her view that immunisation is not in the child’s best interest.
The Federal Magistrate also said that the calling of Dr S detracted from the Mother’s Counsel’s submissions that the mother was a concerned parent who had had a bad reaction to immunisation in the past.
The Mother’s evidence with respect to whether she would agree to have her daughter immunised against the Human Papillomavirus injection was that she would discuss it with the child at 11 or 12 years of age, the risks of contracting a sexually transmitted disease and the pros and cons of being vaccinated and then leave it to the child. His Honour believed this to be an abrogation of the Mother’s parental responsibility as the child would not be at an age to have a proper appreciation of the risks, or the benefits. His Honour said that the mother was clearly unable to make that decision as she was vehemently anti-immunisation.
After extensive evidence provided by Dr W and Dr D His Honour balance the risk ratio of the child being immunised or not. He decided that it would be in the child’s best interests if “she was immunised for Measles, Mumps, Rubella, Diphtheria, Tetanus, Pertussis, Varicella and Human Papillomavirus”.
His Honour went on to say that “Given that there is little likelihood of Diphtheria, Tetanus, Pertussis contracting Meningococcal C, Hepatitis B or Polio, on the same risk benefit analysis, such vaccinations are unnecessary.
By being immunised for Measles, Mumps, Rubella, Diphtheria, Tetanus, Pertussis and Varicella, the child will not need to be withdrawn from school, or from visits with her father, her step-mother and any potential further child they might have.
There will also be an order made now for the child to receive the Human Papillomavirus immunisation at the appropriate age, so as to avoid the necessity for the parties to re-litigate, although it is unknown what the child’s sexual history will be, the benefit of avoiding the possibility of cervical cancer if she were to have multiple sexual partners far outweighs the risk to her of receiving the immunisation at the appropriate age.
It will be in the best interest of the child, and that is the paramount consideration, for the above immunisations to be given.”
That case, however was appealed by the Mother in the case Mains & Redden  FamCAFC 184 (9 September 2011).
The appeal was ultimately allowed, however the following important comments were made by the Full Court:
- That there was nothing to which this court had been referred establishes that that the learned Federal Magistrate’s finding was not reasonably open to him. This challenge is accordingly not made out.
- Such quantitative evidence as there was before his Honour suggested that the child suffering an adverse reaction to immunisation was extremely unlikely. If it was to succeed, it could only do so in reliance upon further evidence sought to be adduced pursuant to s93A of the Family Law Act 1975.
- As no finding of fact made by him has been disturbed, this court did not conclude that, had their operation been raised before him, the learned Federal Magistrate should have applied the Medical Procedure Application Rules.
- Applying s93A to the further evidence before this court has much to commend it. On a re-hearing of the proceedings, hopefully with the benefit of further testing, the results of which will better inform the expert opinion evidence of the doctors, the issue can be more effectively agitated, and determined.
If you require any assistance in relation to this area of the law please do not hesitate to contact Ms Ludeke of Wiltshire Lawyers.
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