T and M
[2002] FMCAfam 277
•30 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| T & M | [2002] FMCAfam 277 |
| CHILDREN – Parental responsibility – vaccination – Family Law Act 1975 ss.61C, 61D, 64B. Secretary, Department of Health and Community Services v. JWB and SMB (1992) FLC 92-293. |
| Applicant: | P J T |
| Respondent: | P J M |
| File No: | (P)ADM3640 of 2002 |
| Delivered on: | 30 August 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 21 August 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Applicant: | Mr T in person |
| Respondent: | Ms P M in person |
ORDERS
That the application filed on the 24th of May 2002 is hereby dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
(P)ADM3640 of 2002
| P J T |
Applicant
And
| P M |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are P J T and P J M. They are the parents of two children, J M-T born 12 May, 1998 and J R M born
18 February, 2001.
Mr T is the applicant in the proceedings before me. He has acted on his own behalf in the proceedings and prepared his application and affidavit in support of it. I will refer to him in these reasons as the “father”.
Ms M is the respondent to the proceedings. She, too, has acted on her own behalf in these proceedings and has also prepared her own material in response. I will refer to her in these reasons as the “mother”.
The parties have a lengthy history of proceedings before the Family Court at Adelaide. On the 8th of July 2002 Burr, J., following a trial that encompassed eighteen sitting days, made orders in respect of parenting arrangements for the two children concerned. During those proceedings both children were represented by Ms Dibden of counsel.
It seems that during the hearing of the parties competing applications in respect of the residence of J and J and other parenting matters, the father, on the 24th of May 2002 to be specific, filed the application currently before the Court. On that occasion, Burr J. referred the application to the Federal Magistrates Service. This application was given a return date of the 17th of July, 2002 before me, some few days after Burr J. had delivered his judgment in the substantive matter. One consequence of Burr J’s orders of the 8th of July 2002 was that the appointment of the children’s representative was to be terminated on the 8th of July 2003.
However, on the 17th of July 2002, Ms Dibden appeared before me and indicated that those instructing her did not have funds for her to appear in the current proceedings. Accordingly, she indicated that the children’s representative would not be appearing in the proceedings currently before me.
I was told by the father and, although I have no reason to disbelieve him, I have not been able to verify it by reference to a transcript, that Burr J. disqualified himself from hearing the present application as he (Burr, J.) apparently held strong personal views in respect of the subject matter of the application and accordingly it was not thought by him to be in the interest of justice that he adjudicate in respect of the application.
The matter before the Court has raised strong passions in both of the parties and is clearly a matter of some importance to both of them. It relates to whether or not J and J should be vaccinated against a number of life-threatening and endemic and, at least in this country formerly endemic diseases, namely diphtheria, tetanus, poliomyelitis, influenza, hepatitis, measles, mumps, rubella, chicken pox, whooping cough, meningococcal disease and tuberculosis. The father’s application seeks that the two children concerned be fully immunised and vaccinated against these diseases “as recommended by doctors”. The mother quite simply seeks that the father’s application be dismissed.
I accept that issues relating to the immunisation of children are the source of much controversy amongst certain sections of the community. There are vociferous proponents for and against such immunisation. It is a topic that also raises issues of general public importance. Clearly, it is in the interests of the community as a whole that endemic, life threatening diseases should remain eradicated in this country. For the last few decades the scourges of infectious diseases such as polio, tuberculosis and diphtheria and the horrifying birth defects arising from rubella have become relatively unknown in Australia. The community as a whole, and the parents of children in particular, have a legitimate interest in ensuring, as far as is possible, that this remains the situation.
Although no formal evidence was led before me in this regard, I think that is generally known that governments in Australia both at the Commonwealth and State level, are supportive of mass immunisation programs. To this end, the Health Insurance Commission administers the Australian Childhood Immunisation Register, which records details of vaccinations administered to children under seven years of age. Parents of such children are encouraged to vaccinate their children in respect of diphtheria, tetanus pertussis, polio, hepatitis B and haemophilias influenza type B. However, the fact is that at the present time such mass immunisation programs are not compulsorily mandated by the state for children. It remains therefore the prerogative of parents and where relevant the legal guardians of the children concerned, to determine whether a particular child should or should not be vaccinated against what, if any disease.
Clearly, in this case, given their ages, neither J nor J are in a position to determine for themselves whether they should be vaccinated or not. Accordingly, it falls to their parents to determine this issue and failing their parents, in appropriate cases, the Court.
Neither the father nor the mother is medically qualified or holds any particular expertise in respect of vaccination or childhood illnesses. No evidence was provided to indicate that either child concerned has any particular susceptibility to illness or has any unusual disability.
The father’s case can be put simply. He wishes the children to be vaccinated against as many diseases as possible for their own protection. He believes that if children are not vaccinated they are placed at risk of contracting disease. He also believes that for the greater good of the community, all children should participate in vaccination programs to ensure the maximum protection of the general population as a whole from epidemics of disease. These are sensible and compelling reasons in favour of his case. He himself developed some form of encephalitis as a result of contracting measles as a child. I have no doubt that, as a result of his own experience and because of his concern for the children, he is a passionate proponent of vaccination for children. However, he was not in a position to call any specific scientific evidence in support of his case.
The mother is opposed to vaccination. She deposed that she was extremely concerned about issues pertaining to the health and well being of the children concerned and had conducted her own research into issues related to the vaccination of children. As a result of her researches, she had formed the view that there were questions regarding the effectiveness of vaccination generally and issues relating to the possibility of some children sustaining severe adverse reactions to such vaccinations. She was not in a position to call any expert evidence in support of her position, although she did annex some pages from some unspecified texts regarding the issue to her affidavit. The father, quite rightly objected to this material and it was excluded. However, I have no reason to doubt that the mother fervently believes that there are many question marks surrounding vaccination for children. It is also the mother’s position, that as the parent who has been granted the responsibility for the long term and the day to day care, welfare and development of the children concerned that it is her prerogative to determine whether or not the children should be vaccinated.
As I indicated to the parties, I am not in a position to hold a scientific inquisition into the debate surrounding childhood immunisation programs and make some definitive finding in respect of them. I have before me only the untested assertion of each of the parties that their position in respect of the issue is to be preferred.
In my view, this complicated and difficult issue, which has aroused the passions of the parties, is to be determined in a more prosaic fashion then by the Court embarking on such an inquiry. In my view, the question falls to be determined according to who of the parties has the parental authority for making decisions concerning the care, welfare and development of the children concerned.
This was an issue that was adjudicated upon by Burr J in his judgment of the 8th of July 2002. By virtue of order 2 of the orders made by Burr J on that occasion it was ordered that:
“That the children J M-T (“J”) born 12 May 1998 and J R M (“J”) born 18 February 2001 do reside with the mother who shall have the responsibility for their long term and day to day care, welfare and development.”
It is apparent from reading Burr J’s reasons for judgment in this matter that there is a long history of mistrust and animosity between the parties. In reaching his conclusion that the mother should be unrestricted in both her long term and day to day responsibility for the care, welfare and development of the children, Burr J formed the view that the father was prone to be controlling of the mother. Accordingly, he formed the view that it was in the best interests of the children concerned that the mother, as the parent charged with providing the residence for the children, should have sole responsibility for both long term and day to day matters concerning the care, welfare and development of the children. In his reasons for judgment at page 20, Burr J recorded his findings as follows:
“Consequence on my findings as set out above as to the mother’s excellent parenting capacity, I believe that she ought to be unrestricted in her long term and day to day care, welfare and responsibility for the children and I would propose to make orders accordingly.”
Given that neither party was in a position to provide expert evidence in respect of the matter and given each of the parties’ positions was clearly defined in respect of the issue before the Court, I decided that it was appropriate that the matter be determined on the basis of the affidavit material alone, without the cross-examination of either party by the other. I could not see that there was anything to be gained from allowing such cross-examination. I formed the view that the position of each party in respect of the immunisation issue was genuinely and validly held. Accordingly, the matter proceeded on the basis of the affidavits of the father and the mother filed on the 24th of May 2002 and the 6th of August 2002 respectively and the submissions of each party. I also had access to the judgment of Burr J of the 8th of July 2002.
Although the child representative was not in a position to appear at the hearing before me on the 21st of August 2002, I was advised by Ms Dibden, at the first mention of the matter on the 17th of July 2002, that the child representative took the view that the determination of whether or not the children should be vaccinated hinged on who of the parents had parental responsibility for making decisions concerning the care, welfare and development of the children concerned. Ms Dibden herself, did not advocate a scientific inquisition into pros and cons of vaccination per se in a hearing such as this one.
As a result of the orders of Burr J made on the 8th of July 2002 it is clear that the mother has been conferred with parental responsibility in respect of both J and J. The concept of parental responsibility is dealt with in Division 2 of Part VII of the Family Law Act.
Section 61B defines parental responsibility as follows:
“parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Pursuant to section 61C each parent of a child under the age of 18 has parental responsibility for that child and such parental responsibility continues notwithstanding any changes in the relationship of the parents concerned. However, pursuant to section 61D a parenting order may modify parental responsibility which follows as a consequence of being the parents of the child concerned.
A parenting order is defined in section 64B and includes an order that deals with any aspect of parental responsibility for a child.
Section 61D reads as follows:
1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
a)Expressly provided for in the order; or
b)Necessary to give effect to the order.
In my view, it is clear that the orders of Burr J have modified significantly the parental responsibility that the father and mother each had upon the birth of J and J. As a result of the orders of the 8th of July 2002 the mother is conferred with sole responsibility for both the long term and day to day care, welfare and development of J and J. That authority extends to each aspect of the physical, mental, moral, educational and general welfare of the children’s lives. It includes the responsibility and power to authorise the administration or otherwise of medical treatment, including vaccinations.
On the basis of the evidence before me, which I concede does not contain any expert medical evidence, I see no reason to remove from the mother the responsibility vested in her by the orders of Burr J to make long term and day to day decisions concerning the children concerned. I am satisfied that this authority includes the power to make decisions in respect of whether or not they are vaccinated.
I accept that a court exercising jurisdiction under the Family Law Act has a jurisdiction similar to the parens patriae jurisdiction invested in superior courts of record (see Secretary, Department of Health and Community Services v. JWB and SMB (1992) FLC 92-293). As a result, the Court has a supervisory role in respect of the responsibilities of parents regarding the care of their children as well as, in certain cases the responsibility to care directly for children who are unable to look after themselves. However, the fact remains that it continues to be the prerogative of parents to determine whether or not their children are vaccinated. The state is encouraging and supportive of such vaccinations but has not as yet legislated to make them compulsory. In my view, bearing this in mind, vaccination is not an issue which, by its nature, involves the parens patriae jurisdiction. The mother has been invested with the authority to make this decision in respect of J and J. I can see no reason to look behind this authority. Accordingly, I have reached the view that the father’s application should be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 30 August 2002
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