Australian vaccination legislation and the family court.
Whether one should vaccinate their child remains a very contentious issue in Australia, with strong views being held on either side of the debate. The State governments have started implementing ‘no jab, no play’ laws and the Family Court of Australia has also expressed views on the issue.
So, what does the law say in regards to the vaccination of children?
VACCINATION LEGISLATION ACROSS AUSTRALIA
Many States have begun introducing legislation preventing unvaccinated children from attending childcare services. Here is a brief overview of each of the State’s positions:
On 1 January 2019 phase 1 of the ‘no jab, no play’ policy was introduced in WA. Childcare services, kindergartens and schools will need to collect immunisation reports of all students and exclude un/under-vaccinated children from attending during disease outbreaks. Phase 2 of the policy, which will aim to ban unvaccinated children from attending childcare and kindergarten altogether, was introduced in July 2019.
The policy in Queensland allows childcare services to ask for a child’s immunisation record before they can enroll. The services can also choose to ban unvaccinated children from enrolling at their service. It is not mandatory for childcare services to adopt this approach, but they can lawfully choose to do so without breaching the Anti-Discrimination Act. If you live in Queensland, it is best to ask each childcare service what their policy is if you are unsure.
South Australia’s policy is very similar to that of WA’s. Before enrolling in a preschool, a child’s immunisation status must be provided and unvaccinated children will be required to stay away from the school during periods of disease outbreak. If a child’s immunisation record is not provided, they will be treated as being unvaccinated.
Victoria has the same policy as WA and SA. After enrolment, parents need to continue to provide up to date immunisation records to the childcare service.
NEW SOUTH WALES
As of 1 January 2018, a new law was introduced in NSW regarding the ‘no jab, no play’ policy. The new policy is such that unvaccinated children will not be able to enroll in early childhood education and care services unless they have a medical exemption or are completing a ‘catch-up schedule’. Under the new law, childcare services need to periodically request immunisation records for the children enrolled at their service.
Tasmania has the same policy as WA, SA and VIC.
VACCINATION LEGISLATION AND THE FAMILY COURT
The ‘no jab, no play’ policies in each State highlight the importance that has been placed on the vaccination of children in Australia. Ultimately, however, it is still up to each child’s parents or guardians to decide whether their child will be vaccinated.
PARENTAL DISPUTES RELATED TO IMMUNISATION
But what happens if the parents cannot agree on whether their child should be vaccinated or not. This issue is especially prevalent in cases of separation. The Family Court of Australia has heard cases involving vaccination disputes, some of which are outlined below.
EXAMPLES OF VACCINATION LEGISLATION AND THE FAMILY COURT
In 2014, the Family Court of Australia heard a matter involving a divorced couple with differing views on the vaccination of their children. The father wanted the children to be vaccinated because he did not want them to excluded from activities based on their immunisation status. For example, one of their children was not allowed to attend gymnastics lessons because they were not up to date with their vaccinations. The mother was opposed to vaccinating the children, however. The Court found there was no evidence the children would be adversely affected by being vaccinated and that the benefits of vaccination outweighed the risks of harm.
In another Family Court of Australia case, a father wanted their child to be immunised conventionally but the mother wanted the child to be immunised homeopathically. The Court ultimately decided that the scientific evidence showed it would be in the best interests of the child for them to be conventionally immunised.
Each case that comes before a Court will have different facts. When the facts of a case are very similar to those of a previous case, the precedent created in the previous case will often be followed. If, however, the Court is of the view that the current case differs in a fundamental way from the previous case, the precedent does not need to be applied.
BEST INTERESTS OF THE CHILDREN
When it comes to vaccination legislation and the family court, it is important to remember that each case will be decided based on its individual circumstances. There is no way of knowing exactly what the Court will decide on any given matter, but in matters involving children the Court will always consider the best interests of the child as a priority.
Although each case is different, it appears the Family Court of Australia is of the view that vaccination will be, save for exceptional circumstances, in the best interests of the child/ren involved.
This view also correlates with that of the State governments, who appear to be of the view that vaccination is important for the health and safety of the individual child and the community at large.
For more information on parenting after separation, keep reading here: What is a parenting plan and what should I include?