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Vaccinations For Children: Makinen & Taube

An issue between many separated couples at the moment is whether their children should or should not be vaccinated generally and, in particular, whether they should be vaccinated against COVID-19. This issue has been dealt with in parenting matters before the Federal Circuit and Family Court of Australia (FCFCA), including the 2021 decision of Makinen & Taube. This article summarises the court’s decision and its comments about vaccinations for children in that case.

Makinen & Taube

In Makinen & Taube [2021] FCCA 1878, the father filed an application for sole parental responsibility in respect of decisions regarding the immunisation and vaccination of two children, aged 12 and eight. The mother had opposed the children being immunised or vaccinated in any way and relied on literature as to “the harm vaccinations can bring to the children”.

As part of the mother’s argument, she quoted the Australian Immunisation Handbook, 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” and interpreted this to mean that a vaccine was not safe for her children. 

The independent children’s lawyer (ICL) argued the children should be vaccinated, relying upon government publications together with the family report, which stated the children not being vaccinated was contrary to the government health recommendations. Unvaccinated people can be excluded from services and travel opportunities because of the risk they pose to other people. The ICL stated, ‘[The mother] holds a firm opinion about vaccination based on the literature she has read but there seems to be no medical information to suggest [the children] are at any escalated risk of negative vaccine outcomes”.

Whilst the mother admitted in cross-examination that there was a pandemic currently in Australia no specific evidence was presented about COVID-19. However, the court took notice of the following facts: 

(a) That COVID-19 is a disease affecting adults and children which causes personal suffering and illness and, at worst, death; and

(b) That it is a contagious disease (particularly the Delta strain).

The above facts have been regularly broadcast to the Australian public by state and commonwealth government health officers from 2019 on and are common knowledge.

The mother’s evidence about vaccinations for children

The court reviewed the literature relied upon by the mother, which was extensive and dense. The themes of many of the articles were that:

(a) Vaccines contain aluminium in various concentrations;

(b) Research has shown some potential association between the injection of vaccines containing aluminium and the incidence of macrophagic myofasciitis (MMF), a condition understood to be an inflammatory mechanism affecting various parts of the body;

(c) The association between aluminium in various products/vaccines and neurological disorders is not yet well understood;

(d) Some literature suggests that autoantibodies, inflammatory conditions and overt auto-immune disease can be caused by vaccines, although this is rare;

(e) Vaccination may trigger auto-immune, inflammatory or neurological disorders in some patients;

(f) Greater caution is recommended when approaching the vaccination of children because they are potentially more vulnerable than adults; and,

(g) Most studies have involved limited epidemiological assessment and found inconclusive evidence of clear association between various vaccines and particular adverse events/diseases, and results of studies identify other variables as potential contributions to the occurrence of the diseases.

Vaccinations for children: the court’s decision

It was the court’s view that the literature which formed the basis for the Australian Immunisation Handbook should be given greater weight than the opinions expressed in the articles and literature attached to the mother’s affidavits.  

The Commonwealth government’s recommendations about vaccination contained in the Australian Immunisation Handbook and the advice on its website was developed and compiled over many years. It relied on published medical and scientific literature that included publications from widely known, reputable and leading scientific and medical journals. The recommendations and advice were also referenced to the World Health Organisation (WHO), which is commonly known as a UN body responsible for international public health and the court took judicial notice of this fact.

The court found that on the basis of the mother’s evidence that she had firm and strong bias against vaccination of any kind. On the evidence, the court found that she initially developed the belief that vaccinations were harmful from a friend or acquaintance prior to the children’s birth. That belief had become entrenched consequent to her own interpretation of various publications which she has sought out and read.

The court noted that whilst the mother was a professional, she was not a medical practitioner or impartial expert witness. Her interpretation of the scientific and medical literature attached to her affidavits in the court’s view were not wholly supported by the literature itself when read in context and overall. The literature the mother relied upon did not support the view she appeared to hold that generally her children should not be vaccinated against diseases because vaccines are harmful.

The court noted that while the mother may be more vigilant, active and diligent towards some matters relating to the children’s health and hygiene, her entrenched views against vaccination show that she will likely push back and reject having the children vaccinated, even if it recommended by a medical professional.

The mother had not presented any evidence that the risk of auto-immune disorders, disabilities or neurological disorders from vaccination (adverse outcomes) is greater than the risk of the children contracting any particular disease which vaccination is likely to prevent. The articles provided by the mother recommended further investigation and study of auto-immune and other reactions to vaccinations was required for the purpose of limiting the chance of persons developing adverse effects.

While the mother’s attitude against vaccination is based on her genuine beliefs, the court did not regard her attitude or beliefs to be reasonable on all the evidence, including the scientific and medical literature she had relied upon.

The court considered that in the absence of expert medical evidence directed to the children’s particular circumstances, their individual health and condition, including whether they have allergies or autoimmune conditions and the like, it would be wrong to make orders that particular vaccinations be given to the children.

It was the court’s view that the orders to be made in the circumstances of this case should allow for effective decision-making concerning vaccination of the children both now and in the longer term. Orders that ensure a decision is made about giving vaccines based on current medical advice are essential for the best interests of the children. This is consistent with maximising their welfare and being protective for the reasons above, also noting that qualified doctors owe professional duties of care that apply to giving vaccines as a form of treatment.

The court ordered that the father ought to have sole parental responsibility concerning vaccinations/ immunisation but only when in accordance with the National Immunisation Program or as recommended by the children’s general practitioner. This would ensure that vaccinations are given to the children when it is warranted, taking into account all relevant considerations affecting the child and contemporary mainstream medical and scientific knowledge.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Sarah Rodrigues - Senior Associate - Canberra

This article was written by Sarah Rodrigues - Senior Associate - Canberra

Sarah Rodrigues holds a Bachelor of Laws from Western Sydney University and a Graduate Diploma of Legal Practice from the College of Law. She was admitted to practice in the Supreme Court of New South Wales in 2015 and is also admitted to practice in the High Court of Australia. Since 2009, Sarah has worked in family law either in...

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