FEDERAL CIRCUIT COURT OF AUSTRALIA
Makinen & Taube [2021] FCCA 1878
File number(s): HBC 837 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 16 August 2021 Catchwords: FAMILY LAW – final orders – parental responsibility for medical decision-making regarding vaccination – where mother seeks injunctive order that father not vaccinate the children – order that the father have sole parental responsibility for medical decision-making regarding vaccination Legislation: Evidence Act 1995 (Cth), s 144
Family Law Act 1975, ss 60CC, 69ZT
Cases cited: Arranzio & Moss [2015] FamCA 544
In the Marriage of McEnearney [1980] FamCA 43
Kingsford & Kingsford [2012] FamCA 889
MRR & GR [2010] HCA 4
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCACF 16
Number of paragraphs: 80 Date of hearing: 9 August 2021 Place: Hobart Solicitor for the Applicant: Tremayne Fay Rheinberger Counsel for the Applicant: Mr M Trezise Solicitor for the Respondent: The Respondent in person Counsel for the Independent Children's Lawyer: Mr T McKenna Solicitor for the Independent Children's Lawyer: Ogilvie Jennings ORDERS
HBC 837 of 2020 BETWEEN: MR MAKINEN
Applicant
AND: MS TAUBE
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
16 AUGUST 2021
BY CONSENT, THE COURT ORDERS THAT:
1.There be orders, declarations and notations made in terms of the document entitled “Minute of Consent Orders”, attached hereto and marked “A”, signed by the parties and the Independent Children's Lawyer.
THE COURT ORDERS THAT:
2.In respect of all decisions relating to the children’s immunisation and vaccination, the Applicant Father Mr Makinen (“the father”) have sole parental responsibility for X born in 2009 and Y born in 2013 (“the children”).
3.The father forthwith do all acts and things necessary to ensure that the children receive the childhood vaccinations/immunisations as are recommended by the children’s treating general practitioner by reference to the current National Immunisation Program Schedule published by the Australian Government, Department of Health and Ageing.
4.The father do all acts and things necessary to ensure that the children continue to receive into the future such immunisations as are recommended by the children’s treating general practitioner by reference to the National Immunisation Program or its successor, for children of their respective ages.
5.For the purpose of implementing the obligations of the father which arise pursuant to orders 2 to 4, inclusive, of these Orders:
a.The father do all acts and things necessary to obtain from the children’s treating practitioner his/her recommendations in writing (“the recommendation”);
b.The father provide the Respondent Mother Ms Taube (“the mother”) with a copy of each recommendation of the children’s treating practitioner with 48 hours of receipt of the same;
c.The mother may, within 7 days of receipt of the recommendation, provide to the child’s treating general practitioner and contemporaneously copy to the father a one-page written document setting out:
i. Additional medical history relevant to the children for the purpose of vaccination; and
ii. Any statement of her concerns about the recommendation (“the mother’s consultation and input”).
d.After receipt of…
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- Makinen & Taube [2021] FCCA 1878
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CaseChat Overview and Summary
The primary legal issue before Judge Taglieri was to establish who held parental responsibility for making decisions regarding the children's vaccinations and to outline the process for implementing those decisions. This involved determining whether one parent should have sole responsibility or if a shared approach was appropriate, and if so, how that shared responsibility would operate in practice.
The court's decision was made by consent of the parties and the Independent Children's Lawyer. The court ordered that the father, Mr Makinen, have sole parental responsibility for all decisions relating to the children's immunisation and vaccination. The father was directed to ensure the children received childhood vaccinations as recommended by their treating general practitioner according to the National Immunisation Program Schedule, and to continue future recommended immunisations. The orders detailed a specific process for obtaining recommendations, providing information to the mother, allowing for her input, and ensuring the father made decisions in consultation with the treating general practitioner. The mother was to cooperate by providing the children's health records and was restrained from providing advice contrary to the general practitioner's recommendations.
Orders
Orders of the court
BY CONSENT, THE COURT ORDERS THAT:
1. There be orders, declarations and notations made in terms of the document entitled “Minute of Consent Orders”, attached hereto and marked “A”, signed by the parties and the Independent Children's Lawyer.
THE COURT ORDERS THAT:
2. In respect of all decisions relating to the children’s immunisation and vaccination, the Applicant Father Mr Makinen (“the father”) have sole parental responsibility for X born in 2009 and Y born in 2013 (“the children”).
3. The father forthwith do all acts and things necessary to ensure that the children receive the childhood vaccinations/immunisations as are recommended by the children’s treating general practitioner by reference to the current National Immunisation Program Schedule published by the Australian Government, Department of Health and Ageing.
4. The father do all acts and things necessary to ensure that the children continue to receive into the future such immunisations as are recommended by the children’s treating general practitioner by reference to the National Immunisation Program or its successor, for children of their respective ages.
5. For the purpose of implementing the obligations of the father which arise pursuant to orders 2 to 4, inclusive, of these Orders:
a. The father do all acts and things necessary to obtain from the children’s treating practitioner his/her recommendations in writing (“the recommendation”);
b. The father provide the Respondent Mother Ms Taube (“the mother”) with a copy of each recommendation of the children’s treating practitioner with 48 hours of receipt of the same;
c. The mother may, within 7 days of receipt of the recommendation, provide to the child’s treating general practitioner and contemporaneously copy to the father a one-page written document setting out:
i. Additional medical history relevant to the children for the purpose of vaccination; and
ii. Any statement of her concerns about the recommendation (“the mother’s consultation and input”).
d. After receipt of the mother’s consultation and input referred to in Order 5(c), the father is to consult with the treating general practitioner and make decisions about vaccination of the children according to the recommendation or any updated recommendation by the children’s general practitioner.
e. The father will ensure that all immunisations be administered by the children’s treating general practitioner, or, in the event that he/she is unavailable, by his/her appropriately qualified nominee;
f. The father is to ensure the children are given age appropriate information from the children’s general practitioner about the recommended vaccinations to be given to the children prior to them being administered.
g. The father provide to the mother, with not less than 14 days’ notice in writing of the date and the time of the children’s immunisation appointments which, for the avoidance of doubt, may fall within the time which the children spend with either the mother or the father pursuant to the orders by consent contained in Annexure “A”.
h. The father pay and be solely responsible for the reasonable cost of obtaining the general practitioner’s recommendation(s) and the administration of the immunisations by the children’s treating general practitioner of his/her nominee;
i. The dosages of vaccine and immunisations, including whether they be combined vaccinations, be as recommended by the children’s treating general practitioner.
6. The mother do all acts and things necessary to:
(a) Deliver the children’s Personal Health Record blue book (“the blue book”) to the children’s treating general practitioner not less than 24 hours prior to any vaccination appointment (notified to her pursuant to order 5(g) of these Orders);
(b) Provide the father with a copy of the blue book initially ;
(c) Provide the father with a copy of further endorsements of the blue book referable to immunisations received from time to time.
7. The mother is restrained from giving the children advice, statements, opinion or comment contrary to the recommendation(s) of the children’s general practitioner.
8. A copy of this order be provided to the children’s current general practitioner and any other general practitioner who treats the children or vaccinates them from time to time.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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