To Vaccinate or not to Vaccinate, that is the question – A closer look at Mackinen v Taube

7 December 2021
To Vaccinate or not to Vaccinate, that is the question – A closer look at Mackinen v Taube

To Vaccinate or not to Vaccinate, that is the question – A closer look at Mackinen v Taube
Jordan Ingleton | 26 November 2021

The Family Law profession has been waiting with bated breath for an expected influx of cases concerning the issue of parental responsibility, and the vaccination of children, particularly in light of the Covid-19 pandemic. There has been and continues to be great interest and debate as to how the Court will consider and weigh the available evidence regarding the alleged risks arising from vaccinations, as against the benefits afforded by vaccines in terms of preventing serious illness or diseases, such as Covid-19.

A recently decided first-instance case, Mackinen v Taube [2021] FCCA 1878, was heard in the Federal Circuit Court in Tasmania on 16 August 2021 with Taglieri J presiding. The issue in question required the Court, to determine between competing proposals regarding the vaccination of two children, who were 12 and 8 years of age respectively.

The issues at hand

On one side, the Mother’s proposal was that both she and the father continue to share parental responsibility for all matters, including vaccination of the children, and sought an injunctive order restraining the father from vaccinating the children. Amongst other things, the mother also sought an order that the children’s views concerning vaccination should be respected, including their right to refuse a vaccination.

The father’s position, identified by Taglieri J as being “diametrically opposed” [to the mother’s], was that he be granted sole parental responsibility with respect only to the vaccination of the children. Conciliatorily, the father also sought an order that required he provide the mother with prior notice of recommendations made by the children’s treating general practitioner regarding vaccines proposed for the children, and prior notice of the making of appointments for the children to receive immunisations.

The Recommendations of the Family Consultant

The Family Consultant’s memorandum observed that “the children not being vaccinated is contrary to the State and Federal health recommendations” and importantly, that “[The mother] holds a firm opinion about the issue of 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”.

The Family Report suggested that the Court “consider medical information that [the mother] believes is supportive of her vaccination position, and the medical information that has informed the State and Federal Government health vaccination recommendations”. In essence, asking the Court to weigh the competing information and determine which it would give preference to.

The Mother’s Evidence

The mother’s case primarily relied on the following points in support of her position:

1. That the Australian Immunisation Handbook supported her claim that a vaccine is not safe for her children, relying on the quote “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”;

2. Noting that she suffers from an auto-immune disease of the thyroid, that she had studied ‘substantial amounts of published medical research which concludes that there is a genetic susceptibility to adverse effects from vaccination in children who have a parent with an auto-immune disease’;

3. That ‘standard childhood vaccination programs constitute [a] serious health risk to the children, because she has studied medical literature and research’;

4. That the literature and research shows that it is widely accepted that vaccinations can cause serious illness involving auto-immune disorders/disabilities and neurological disorders, and relied on the Australian Immunisation Handbook in support of that position, despite that publication describing adverse reactions to vaccination as ‘rare’ or ‘extremely rare’, that this was not supported by ‘scientific research published around the world which suggests otherwise’. On this point, the mother also disagreed that adverse auto-immune or neurological orders are not rare, and that she had ‘not found it to be disproven that a significant proportion of those cases are caused by vaccinations’; and

5. The mother also raised concerns about the children being ‘forcibly vaccinated’ and the risk of psychological harm arising from that action.

Under cross examination, the mother conceded that she had been previously vaccinated, and that she felt it more appropriate to treat diseases where treatment exists, stating that there was ‘no need to vaccinate for illnesses that the children are unlikely to contract and that the risk of vaccinating may induce ill effects and make them sick, which is not warranted’.

Counsel for the Independent Children’s Lawyer put it to the mother that one of the children had been prescribed antibiotics, and identified the risks of harm associated with antibiotic use. The mother’s position in response was that ‘the antibiotics were in effect necessary to treat a greater harm’, before agreeing to the Court’s inquiry that her attitude was one of reaction, rather than prevention.

The mother maintained under cross examination, that she believed the risk of the children contracting Covid-19 in Tasmania was ‘very low’ and that the children were at ‘little risk’ as the disease ‘mainly affected the elderly and those who are immunocompromised’.

Under cross examination from counsel for the father, the mother gave evidence that her opposition to vaccination first arose in Western Australia, where she had been told by a friend that a vaccinated child of another person had ended up having a severe mental and physical disability, and that she had ‘read a similar story’ previously.

Interestingly, the mother went on to appear to agree with the Australian Immunisation Handbook that reactions of a serious nature to vaccines were very rare.

The Father’s Evidence

The father’s evidence focused on the fact that the Australian government publications in evidence endorsed the benefits of vaccination, which supported an assertion that it was in the children’s best interests to be vaccinated.

The Father agreed with the mother’s evidence that the risk of contracting serious diseases was generally low, but that it ignored that this is the case because mass vaccination against serious diseases in the community works.

Counsel for the father reiterated that if the children were deprived of vaccination, they faced potential deprivation of benefits, such as “no jab no pay” or ability to travel or enter certain premises, and or obtain certain employment in the future.

The position of the Independent Children’s Lawyer

Critically, the Independent Children’s Lawyer’s proposition was that there was a likelihood that the children would be exposed to a preventable disease [Covid-19] which created a risk of contracting it, particularly in light of events in New South Wales and Victoria with the spread of the Delta variant.

Counsel for the ICL submitted that ‘the risks of infectious diseases are ones that should be minimised by being immunised’, but acknowledged that immunisations carry risks. It was submitted, that on the evidence, these risks were low, and therefore that it was not appropriate to make an injunctive restraint against vaccination as sought by the mother.

The Findings of the Court

Taglieri J reviewed the material submitted by the mother in support of her application in detail, and provides a summary of his reading of the material at paragraph 52 of the judgment.

Her Honour determined that the literature relied upon by the mother ‘does not support a contention that no children should ever be vaccinated’.

Usefully, Taglieri J decided to take judicial notice of a number of facts raised by the parties and Independent Children’s Lawyer, the most pertinent of which are summarised below.

1. All diseases we vaccinate against can cause serious ongoing health conditions, and sometimes death. Immunisation is a safe and effective way of protecting you and your child against these diseases;

2. Children and adults may need several doses of a vaccine to induce a protective immune response”;

3. Rigorous processes ensure vaccine safety and effectiveness. By law, vaccines must meet strict manufacturing and productions standards. Vaccine safety is tested at all stages of development, and after vaccines are registered for use in people;

4. Before a vaccine is used in Australia, the Therapeutic Goods Association (TGA) assesses its safety and effectiveness;

5. Once vaccines are in use in the population, the TGA and other organisations monitor their safety and effectiveness. Safety monitoring includes passive and active surveillance for adverse effects following immunisation; and

6. The TGA regulates all medicines in Australia, including vaccines. Vaccines are rigorously tested in human clinical trials to confirm that they are safe and effective before they can be used.

Taglieri J found that because the parties had such opposing views, that he was satisfied that they could not effectively agree to a course of action regarding vaccination of the children.

He identified flaws in the mother’s interpretation of the literature she provided, noting that the mother’s initial views on vaccines developed from hearsay information, which was then entrenched by the mother’s own interpretation of various publications that she sought out and read, noting that as she is not a medical practitioner, he interpretations were not, in Her Honour’s views, “wholly supported by the literature itself when read in context and overall”.

Her Honour took care to identify the fact that “The literature [the mother] relies upon also does not support the view that [the mother] appears to hold that generally her children should not be vaccinated against any disease because vaccines are harmful to them”.

When faced with having to balance the competing proposals, Her Honour found that the father was more likely to accept and act upon external medical advice, and that the capacity to have the children vaccinated (if recommended by a health professional) will be protective of the children’s physical and emotional health, which is required by the Family Law Act 1975.

Her Honour’s states at paragraph 71 “Further, where parental responsibility concerns a specific issue such as the health, the welfare of the children and what is in their best interests requires consideration of the longer term view and foresight about what harm may emerge in the future as the children age and mature. It requires preventative steps or actions by parents, not only reactive ones, in order to be protective of children’s health and physical or psychological state” (emphasis added).

Noting the risks that the mother would potentially frustrate decision making because of her strong, inflexible and entrenched views against vaccination, Her Honour made the following orders:

1. That the father have sole parental responsibility only in relation to the children’s immunisation and vaccination;

2. That the father do all things necessary to ensure the children receive the childhood vaccinations as recommended by the children’s treating general practitioner;

3. That the father continue to do all things necessary to ensure this continues into the future;

4. That the father obtain written recommendations from the children’s treating general practitioner;

5. That the father provide the mother with a copy of the written recommendation within 48 hours of its receipt;

6. The mother may provide to the treating general practitioner, copying in the father, a one-page written document which sets out:

a. Any additional relevant medical history of the children; and
b. A statement of her concerns about the recommendation of the GP.

7. Upon receipt of the written document from the mother, the father is to consult with the treating general practitioner, and make decision about immunisation based on the practitioners recommendation, or updated recommendation.

8. The mother be restrained from giving the children advice, statements, opinion or comment contrary to the recommendations of the children’s general practitioner.

Her Honour went on to make a series of further orders to facilitate the above. The orders are transcribed in their entirety on Page 28 of the judgment.

Observations & Last Thoughts

Given the specter of Covid-19, this case is just one of many that will find their way through the Family Court system over the coming months, and years, concerning the issue of vaccines in contested children’s proceedings.

At this early stage, noting that the decision in this regard is a first-instance decision and therefore not binding, is at least informative as to how the Family Court will likely interpret the issue, against the backdrop of a determination of what is in the best interests of the child.

The order to restrain the mother by injunction against “giving the children advice, statements, opinion or comment contrary to the recommendations of the children’s general practitioner” is a surprisingly blunt injunction. It shows that the Court’s position, at least at present, is that it is not in the best interests of children to even be potentially exposed to misinformation, or misinterpretations of information surrounding the safety and efficacy of vaccines, preferring that the advice of qualified medical professionals be prioritised, and respected instead.

In this matter, while the parties resolved all other matters by consent, including for both the mother and father to have equal shared parental responsibility, it was determined that due to the mother’s distrust of vaccines, that the father would have sole parental responsibility solely with respect to that issue.

As we begin to see the vaccine mandate deadlines pass, and restrictions come into force with respect to unvaccinated individuals affecting their ability to work, travel and more, it is anticipated that the Family Court will be more minded to protect and uphold children’s rights to be afforded the protection that vaccines offer against preventable diseases.

We continue to watch this area of law with great interest.

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