The legalities of vaccination in the NSW Family Court

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The anti-vaxxers fear that vaccination may cause harm to their children. Pro-immunisation parents argue that unvaccinated children will spread disease, especially to vulnerable children like those with compromised immune systems. Then, there are those who worry about the social and educational isolation of children whose parents make a medical choice not to vaccinate.


Recent legislation in NSW imposes financial penalties on parents who do not vaccinate and restricts the ability of those children to participate in school and extracurricular activities. The NSW Family Court rarely gets involved, except of course, when a disagreement about vaccination becomes an issue in a divorce or separation. It’s no surprise that the issue can get heated.


What are the rules? Where are the bright lines in this quarrel?


A perennial argument


Those who oppose vaccination have argued for years that childhood immunisations may cause a host of debilitating conditions including autism. While the argument tugs at the heartstrings of protective mums and dads, there is little or no substantial medical evidence to support it.


In fact quite the opposite is true. Vaccines prevent the outbreak of diseases like polio, measles, whooping cough, diphtheria and smallpox that used to kill children or damage their lives with horrifying regularity.


Very young babies may be too young for certain immunisations and some children with rare medical conditions cannot be vaccinated or must delay them. In those situations the vaccination of their peers and the adults who care for them protects vulnerable children by preventing exposure to deadly disease. It’s a phenomenon known as ‘herd immunity,’ and it enables these children to participate more fully in normal activities.


When all the variables are weighed, it is clear that parents should follow the advice of a reputable physician when deciding whether and when to have their children vaccinated. This is a medical decision long before it is a legal one. The medical evidence is not ambiguous. The legal landscape features only a little more nuance.


The law in NSW


The law does not affirmatively require parents to have their children immunised. It simply withholds financial benefits for parents and blocks social opportunities for children who have not been vaccinated.

As of 1 January 2018, in an initiative that has been dubbed ‘no jab, no play,’ parents who refuse to vaccinate their children may not enrol them in childcare. Children on a recognised catch-up vaccination schedule and those who cannot be vaccinated for medical reasons may still be enrolled. A parental ‘conscientious-objector’ exception that existed under previous law has been repealed.


Directors of child care centres who do not comply with the new requirements under the Public Health Act will face a fine of up to $5500. The legislation will also allow public health officers to exclude unvaccinated children from secondary schools when there is a disease outbreak. This previously only applied to primary schools and child care centres.


As of 1 July, the federal government has also rolled out an even tougher “no jab, no pay” policy. Family Tax Benefit Part A payments will be reduced by about $28 a fortnight for each child who does not meet immunisation requirements. As above, exemptions apply for children who have medical contraindications or natural immunity and have been assessed by a general practitioner.


When it goes to Family Court


It will surprise no one to hear that the issue has become a subject of contention in Family Court.  But Family Court is not focussed on the complicated matter of parental choice. The principal concern in that venue is the best interest of the child, and recent decisions land squarely in favour of immunisation.


In Duke-Randall & Randall (2014), Family Court weighed competing claims of separated parents of two unvaccinated children. Evidence suggested that both children had already suffered from whooping cough. Interestingly though, the decision seems to have turned not on the present state of the children’s health but on their ability to engage the larger world.  Justice Foster noted that, with the benefit of vaccination, the children would:


  • be able to attend gymnasiums that they were otherwise unable to attend due to their unimmunised status.
  • be able to receive recommended vaccinations in respect of travelling to overseas countries in the future and be protected from the risk of disease and infection.  
  • be able to resume contact with extended paternal family members who were otherwise concerned about bringing members of their families into contact with unimmunised persons.


The welfare of the children, as the Family Court decided in that case, involved bringing them out of the bubble of worried, protective parental care and into the world of family, school and travel. It is worth remembering that decisions about the best interest of children are made on an individualized basis. They are likely to be highly specific to particular facts.


Do you have questions about vaccinating your children? There are lots of personal circumstances. Please call the attorneys at Owen Hodge Lawyers to schedule a consultation at 1800 770 780.


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