judgement immunisation

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FamCA Coversheet and Orders Page 1

FAMILY COURT OF AUSTRALIA

KINGSFORD & KINGSFORD [2012] FamCA 889

FAMILY LAW CHILDREN immunisation traditional or homeopathic

best interests overarching parental conflict

Family Law Act 1975 (Cth)

B & B: Family Law Reform Act(1997) FLC 92-755

APPLICANT: Mr Kingsford

RESPONDENT: Ms Kingsford

INDEPENDENT CHILDRENS LAWYER: Ms Marie Casey

FILE NUMBER: MLC 9459 of 2009

DATE DELIVERED: 19 October 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 27 28 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self Represented

SOLICITOR FOR THE APPLICANT: Self Represented

COUNSEL FOR THE RESPONDENT: Ms Swart

SOLICITOR FOR THE RESPONDENT: Trapski Family Law

COUNSEL FOR THE INDEPENDENT

CHILDRENS LAWYER

Ms Byrnes

SOLICITOR FOR THE INDEPENDENTCHILDRENS LAWYER

Victoria Legal Aid


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(f) The father pay and be solely responsible for the reasonable cost ofobtaining the recommendation from Dr J and the administration of the

immunisations by Dr O or his nominee;

(g) The dosages of vaccine and inoculations, including whether they becombined vaccinations, be as recommended by Dr J;

(h) The mother do all acts and things necessary to:-(i) deliver the childs yellow/red booklet entitled My Health and

Development Record to Dr O not less than 24 hours prior to

any vaccination appointment (notified to her pursuant to sub-

paragraph (e) hereof);

(ii) provide the father with a copy of the said booklet initially;(iii) provide the father with a copy of further endorsements in the

said booklet referrable to immunisations received from time to

time.

(4) I DIRECT that the independent childrens lawyer provide a copy of this Orderand my reasons for decision to:-

(a) Doctor J;(b) Doctor O, and(c) such other medical or like health professional as she considers, in

furtherance of the childs best interests, ought to have that information

and, for that purpose, the independent childrens lawyer be provided with three

extra copies of this Order and my reasons for decision.

(5) For the avoidance of doubt, the mother is at liberty to provide a copy of myreasons for decision to Dr G.

(6) I reserve liberty to the parties to apply in relation to the implementation of thisOrder.

(7) I reserve liberty to the parties to apply in 2016 in relation to the childreceiving the Human Papillomavirus vaccine (Gardasil) or like treatment for

the prevention of cervical cancer and for that purpose the matter may, if one

of the parties so seek, be listed before me on its first return date for directions.


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(8) Unless a Notice of Appeal is filed, upon compliance by the independentchildrens lawyer with paragraph 4 of this Order, the order requesting the

appointment of an independent childrens lawyer be, and is hereby,

discharged.

(9) All exhibits and documents produced on subpoena be returned to the persontendering or producing same.

(10) All extant applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym

Kingsford & Kingsfordhas been approved by the Chief Justice pursuant to s 121(9)(g)

of the Family Law Act 1975 (Cth).


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FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9459/09

Mr KingsfordApplicant

And

Ms KingsfordRespondent

REASONSFORJUDGMENT

INTRODUCTION

1. This is an application for parenting orders in relation to the child T bornin August 2004. She is eight years old. Her parents are separated, and,

in accordance with orders made by consent before me on 8 September

2011, the child lives with her mother and spends time with her father

during school terms on alternate weekends, for half of school holidays,

and by telephone twice a week with arrangements for contact onbirthdays, Christmas and other special occasions. The question of

whether the child is to be immunised by way of homeopathic or

traditional vaccination remains outstanding, and that is the issue before

me today.

2. The mothers position is in her amended response to the fathersinitiating application filed 23 December 2011. The orders sought by the

father were resolved by the parenting orders described above. By way of

the outstanding matter, the mother seeks that the child be

homeopathically immunised by her and that the father, his servants andagents, be restrained by injunction from otherwise immunising the child,

or allowing anyone else to do so, without the express written permission

of the mother.

3. The mothers amended response followed an incident on 20 January2010 when the fathers wife, Mrs E Kingsford, took the child to the N

Medical Centre, where the child received traditional vaccinations for

diphtheria, tetanus, pertussis, hepatitis B, polio, HIB, measles, mumps,

rubella and meningococcal C. Prior to this incident, the child had been

immunised according to the homeopathic regime of vaccination. The


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traditional vaccination of the child at the Medical Centre occurred

without the mothers prior knowledge or consent.

BACKGROUND

4. The father was born in Australia in 1954. The mother was born overseasin 1968.5. In 2000 the parties met at a development course while the mother was

travelling in Australia but still residing in the United Kingdom. The

parties lived together briefly. In interview with the family consultant the

father described this early romance as rather rushed, and the wife, in

her affidavit filed 28 October 2009, described it as a whirlwind. The

mother then returned to the United Kingdom and the parties continued

to correspond. The father proposed to the mother over the phone in

early 2001, and the parties were married in the United Kingdom in 2001.

6. In June 2001 the mother arrived in Australia to live permanently. Bothparties described in interview with the family consultant that there were

difficulties with the marriage from the outset. The father reported that

the parties argued, that the mother was unsettled, unable to finish

courses and establish a career direction, neglectful of domestic duties

and generally unmotivated and that he felt controlled and oppressed.

The mother reported that the father told her during their honeymoon that

he viewed the marriage as a mistake and that this, combined with what

she perceived as racism against her English heritage, made heradjustment to living in Australia very difficult. The parties separated on

several occasions.

7. The mother then became pregnant. She reported to the familyconsultant that after she told the father of her pregnancy he said that he

was thinking of leaving her, which led to the eventual demise of their

relationship. The child T was born in August 2004.

8. In October 2004 the parties separated finally. At the time of theseparation there was an informal arrangement for the father to spend

time with the child, which arrangement was combined with his use of a

business office in the family home. The father described his initial

contact with the child to the family report writer as being ad hoc and

largely controlled by [the mother]. The mother described that the

father was disinterested in the child, and thus that she had to drive the

arrangements to foster the father-daughter relationship, going so far as to

remain in Australia rather than returning to the UK so as to encourage

that bond.

9.

In 2005 the mother returned to France to see the maternal grandparents,who travelled back to Australia with the mother for an extended holiday.


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Around this time the father moved his office out of the family home and

re-partnered with Mrs Kingsford, who had two sons from a previous

relationship. The father described to the family report writer that the

relationship between the father and mother deteriorated markedly after

this.10. It is fairly obvious that the parents had no previous experience of unity

or harmony when they separated and the child was then only two

months old. By the time that the father commenced to live with Mrs

Kingsford and her boys, the child was one year old. Unfortunately, there

was no positive adult relationship upon which the mother and father

could graft a successful parenting relationship into the future. Each

retreated from the other and, it appears to me, have continued to do so.

The father now disavows the parenting styles to which he acquiesced

prior to forming a new household with Mrs Kingsford. Having heard theevidence and seen the parents over a number of interlocutory hearings,

including the interim hearings about choice of school, time spent and

communication, I conclude that the child has been disadvantaged and

has suffered as a result of her parents behaviours and rigid attitude of

non-engagement. I will say a little more about this later but note, at this

introductory point in my reasons, that whether the child is immunised by

homeopathic or traditional method is not the most pressing issue relating

to her wellbeing. The most disturbing aspect of this case is parental

conflict.

11. On 16 April 2009 the parties divorced.12. On 21 October 2009 the father filed his initiating application and

affidavit in this court, and on 30 October 2009 Senior Registrar

Fitzgibbon made orders, inter alia: that the child be enrolled at C

School; that the matter be referred to the Child Responsive Program;

and listing the matter for 11 December 2009 at 9.45am, on which date

interim orders were made by consent for the father to spend time with

the child.

13. In March 2010 M was born to the father and Mrs Kingsford. Prior to thebirth, the fathers wife took the child T to the N Medical Centre on 20

January 2010 where the child was given traditional vaccinations for

diphtheria, tetanus, pertussis, hepatitis B, polio, HIB, measles, mumps,

rubella and meningococcal C. This occurred without the mothers prior

knowledge or consent. I am satisfied that the father knew beforehand

and acquiesced to the event. He is unapologetic.

14. On 2 February 2011 the family report of Mr H was published.15. On 29 June 2011 the report of Dr J was published, which reportrecommended that the child be traditionally immunised through a


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program of catch-up vaccinations to bring her up to the standard level

of vaccination for a child of her age.

16. On 16 August 2011, pursuant to orders of 12 July 2011, the partiesattended a Roundtable Dispute Management Conference, and agreed on

parenting arrangements for the child in all matters other thanimmunisation. Those arrangements were made into orders by consent

by me on 8 September 2011.

17. On 5 January 2012 Dr Gs affidavit on homeopathic and traditionalvaccination was filed by the mother, which report recommended

generally that parents be free to choose either homoeoprophylaxis or

traditional immunisation for their children.

18. The mother, according to her affidavit filed 20 December 2012, liveswith the child in what she describes as a simple and healthy way oflife. They eat organic and unprocessed foods when possible and use

non-toxic cleaning and personal products. The mothers evidence is:

16. I currently work part time from home in a health and well-being industry, focussing on eliminating toxins from our

homes and environment as well as educating people in food

and nutritional support. In my line of work I recommend

naturopaths, homeopathic doctors as well as integrative

General Practitioners for people with specific health

challenges or who want a professional opinion or consultation.

17. As part of my work it is important that I attend regular healthtalks with naturopaths and other healthcare professionals to

keep up to date with new research and health information. I

attend seminars, workshops, listen to audio CDs created by

healthcare professionals, and read scientific and medical

articles and books.

18. [The child T] has been part of the Steiner Education fromplaygroup, kinder, prep and now school. Within the Steiner

community the lifestyle imbues the way we live. The toys are

made from natural products such as wood, wool, wax, silk etc.

I believe most families who attend our school, as like us, will

use natural and non-toxic products in the home and focus on

building up the immune system of the child through

homeopathics, as well as eating organic and biodynamic food.

I believe from speaking with parents and teachers that a large

number of children who attend some form of Steiner school

are not vaccinated conventionally.

19. The father did not file affidavitory evidence on the issue to be decided.He relied on the evidence of Dr J, single expert witness. The father was

cross-examined.


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RELEVANT LAW PARENTING ISSUES

20. These proceedings are brought under Part VII of the Act. Pursuant to s60CA, in deciding to make any parenting order in relation to the child, I

must regard the childs best interests as the paramount consideration and

that is how I approach these proceedings.

21. Subject to the best interests of the child being the paramountconsideration,

s 60B sets out the aims and principles of Part VII. The section provides

the context within which the relevant best interests factors listed in s

60CC are to be examined and ultimately weighed.

22. In determining the best interests of a particular child, I am required toconsider two primary considerations and several additional

considerations, listed ins 60CC of the Act.

23. The primary considerations are set out in s 60CC(2) and are described asfollows:-

(a) the benefit to the child of having a meaningful relationship with

both of the childs parents; and

(b) the need to protect the child from physical or psychological

harm from being subjected to, or exposed to, abuse, neglect or

family violence.

24. The additional considerations listed in s 60CC(3) of the Act arenumerous but not exhaustive. S 60CC(3)(m) of the Act requires me to

take into account any other fact or circumstance that the court thinks is

relevant. This ensures that the infinite variety of individual childrens

circumstances can be addressed.1

I will have regard to the primary and

additional considerations, however this is a narrow issue.

25. In this case, under orders made by consent before me on 8 September2011, the parties have already reached an agreed resolution to the

majority of the parenting issues, including that each has equal sharedparental responsibility, and the child live with her mother and spend

time with her father. It is not necessary for me to revisit the

appropriateness or otherwise of the shared care or substantial time in

light of the arrangements to which the parties recently consented and

which they agree continue to be appropriate.

1B & B: Family Law Reform Act(1997) FLC 92-755.


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THE EVIDENCE

26. As suggested by the Mr H in his report on the family, it appears that thequestion of the immunisation of the child has, for these parents and the

fathers new wife, transformed from a question about the health of their

daughter (or, in the case of the fathers new wife, her step-daughter) intoa forum for the more fundamental parental conflict. Mr H wrote:

45. This issue more than any other illustrates the struggle between

the parties for initiative and control over the arrangements and

philosophical guidelines of [the child Ts] life. Given that [Mrs

Kingsford] has responsibility for the day to day running of her

families [sic] domestic life it is likely that [the child] will become

increasingly triangulated between the different parenting

philosophies of these two strong willed women. The prognosis for

[the childs] ongoing psychological and emotional health is poor if

the parties fail to reach a rapprochement and come to terms with the

need for a more cooperative and authentic approach to the joint

parenting of [the child].

27. Mr Hs observations and conclusion accord with my own. The parentshave not reached a rapprochement and nor have they come to terms with

the need for a more cooperative and authentic approach to the joint

parenting of the child. That the question of the immunisation method for

the child has become the site for broader parental conflict was evident in

the evidence of both parents, both on affidavit and in the witness box.

28. In relation to immunisation, Mr H opined:43. As stated, the writer was keen to facilitate a meeting between

[the mother] and [the fathers new wife] to explore the issues of

communication and immunization but this did not occur. The

views of the parties are unchanged on this issue. Each party

wishes to continue on with their respective immunization

program. The writer does not have the medical expertise to

comment on this issue and there are fundamental ideological

differences between the parties. The result being that [the

child] remains only partly immunized by both programs.44. The writer respectfully recommends an Order for the parties to

seek the opinion of a specialist Paediatrician and for the parties

to abide by the opinion of the specialist. The specialist should

address the efficacy or otherwise of the two approaches and the

implications for [the child] of continuing or discontinuing

either approach.

The Mother

29. The mother presented as a genuine witness who gave truthful andconsidered answers. She appeared not to have much comprehension that


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her case may not succeed and obviously had given little or no

consideration to the conditions in which an order for traditional

immunisation could be implemented.

30. In the mothers affidavit, she sets out her position that the child shouldnot be traditionally vaccinated, and should continue to receivehomoeopathic immunisations:

12. The homoeoprophylaxis is administered from birth to 84months. [The child] has only two further vaccinations required

to complete the entire regime.

13. I do not see that there is any point in exposing [the child] torisk by now making her receive the more conventional

vaccinations. I say that the homoeoprophylaxis regime is more

than adequate for her needs, provides her with immunity

against childhood diseases, and does so in a far safer and morerisk adverse way.

31. Despite maintaining that the child should be homoeopathicallyimmunised, the mother, in her oral evidence, responded to some

questions about what she would seek in the event that I order, contrary

to her wishes, that the child receive conventional immunisations.

32. The mothers position was that she would like to be the one who takesthe child to her immunisation appointments. When I asked the mother

what she would say to the child in relation to traditional immunisation,

she struggled to respond, restating her commitment to homeopathicimmunisation. She then suggested that she might tell the child that she

could now have the traditional immunisations because the was big girl

and was strong enough for them. Finally the mother suggested that

she would have to say that the immunisations were good for her, and

that she was brave enough to have them now.

33. The mother also deposed that she would like to be the one to take thechild to the appointments so that she could monitor the childs health

before and after the vaccinations. However, my impression is that the

mother will be unable to convey to the child that the immunisations are

of benefit to her. My impression is that the mother will be unable to

conceal from the child her genuine belief that traditional immunisation

is harmful and, having regard to her belief in the homeopathic

alternative, unnecessary.

34. The mother conceded that it would probably not make a difference tothe child for the mother be the one to take her to the appointments, but

that it would make the mother feel better about the process if it is she

who attends. I accept that is so. The mother is the childs primary carer

whose emotional wellbeing impacts directly on the child so I take into


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mother gave evidence honestly on this point but do not accept that it is

accurate. In my view, the mother gives insufficient weight to the fact

that the child is exposed to views and attitudes from two households as

well as from school friends and the parents of school friends who, on the

mothers evidence, have views on homeopathic immunisation whichaccord with her own.

39. The mother expressed concern about the secret immunisation of thechild, both in terms of her personal feelings of disempowerment in

relation to the incident, but also in terms of potential negative health

consequences for the child as a result of having an unknown vaccination

status, risking, for example, accidental double vaccination. The mother

further expressed some concern that, after her first set of traditional

vaccinations, the child appeared to have a bit of a runny nose, a cold and

mood swings, but the mothers evidence was that she could notdefinitively link that to the vaccination. As I indicated above, I am

satisfied that the mothers views are genuinely held. I deal later with the

evidence of the experts.

40. In relation to psychological distress as a result of the first set ofvaccinations, the mothers evidence was that the child had said that it

hurt and that she didnt want the stepmother to take her to have needles

again, but the mother conceded that the child did not cry when reporting

the incident to her and that there were no further discussions about it.

41. The mother denied allegations that she was hypochondriac in regardsto the childs health.

42. Like the father through his new wife, it appears that the mother has donea great deal of independent research on the question of traditional versus

homoeopathic immunisation, in the mothers case, through the internet,

books and talking to other supporters of homeopathic immunisation.

43. Although the mothers evidence is that she believes that she may havebeen traditionally immunised, that she has taken antibiotics, that she has

previously been a smoker, and that she administers Ventolin to the childand has given her antibiotics, the mother maintains that she opposes

traditional immunisation for the child because it would expose her to

harmful toxins. The mother said that she did not see any inconsistency

between her objection to the toxins in vaccinations and her willingness

to give the child other traditional medicines such as antibiotics or

Ventolin.

44. In relation to the childs diagnosed infection with whooping cough whenshe was in kinder, the mothers evidence was that it had not shaken her

confidence in HP immunisation, but that she appreciated that bothhomoeopathic and traditional immunisation are not 100 per cent


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from the child T in respect of which an immunisation could have been

given and was, therefore, avoidable.

49. The father alleged that the mother was a hypochondriac with respect tothe childs health, and that she was inconsistent in relation to toxins

and was happy for the child to be exposed to all sorts of foreignmaterial, but drawing the line at immunisation.

50. The father also expressed concern that the child was not properlyeducated and could not read or write.

51. The fathers evidence was that the child had, despite beinghomeopathically immunised, previously contracted whooping-cough.

The father oscillated on the question of whether the childs whooping

cough was linked to a bad cough that he had twelve months later, and it

is of note that the father had been traditionally immunised againstwhooping cough.

52. The fathers position was that he had the child conventionallyimmunised because: she was starting school and thought that it would be

required; her non immunised status could have exposed his unborn

daughter M to potential dangerous infections during her infancy prior to

her vaccination; and that immunisation might stop the child T dying of

an infectious disease. The father agreed that the risk to the child of

contracting a fatal infectious disease in Australia was low, but his

opinion was that it was not zero, and he did not want to play Russianroulette with her health.

53. The fathers evidence was that he did not consult with a doctor aboutimmunisation for the child prior to her being immunised, although it is

clear from his evidence that he has done significant subsequent research.

54. The fathers evidence was that if the child had not been immunised, hiswife may have prohibited the child from spending time with her half-

sister M as a baby. However he conceded that as M and the other

children in his household have now been immunised, this would be

unlikely to still be an issue.

55. The fathers position was that he felt that it had been in the childs bestinterests to be immunised by stealth because the end justifies the

means.

Doctor O

56. Doctor O was not required to give evidence in person, however theIndependent Childrens Lawyer informed the court that Dr O said he

would abide any order of the Court for traditional immunisation if


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requested by the parents to do so. There was no issue raised by either

parent and I accept the statement of the Independent Childrens Lawyer.

I consider that Dr O is eligible to conduct a program of traditional

immunisation for the child.

Doctor J

57. Doctor J has a Bachelor of Medicine and Bachelor of Surgery fromMelbourne University and is a Fellow of the Royal Australian College

of Physicians. He was an impressive witness. He balanced considerable

knowledge with considerable compassion for the mothers position and

beliefs. He was respectful of Dr G but did not share his views.

58. At the Royal Childrens Hospital in Melbourne Dr J is a principalspecialist, a consultant in the Emergency Department and a senior

paediatrician in the Child Behaviour Clinic. He has been in specialistpaediatric practice for over twenty years, and is in private practice as a

consultant paediatrician at the Royal Childrens Hospital and two other

medical centres.

59. Dr J prepared a report dated 29 June 2011 in relation to traditionalimmunisation and homeopathic immunisation for the child T. It was Dr

Js recommendation in that report that the child be immunised

traditionally and that she undertake a program of catch-up

immunisation to bring her up to the standard level of traditional

immunisation for a child of her age.

60. In reaching this conclusion, Dr J considered both the history of thefamily and also research into homeopathic as compared to traditional

immunisation.

61. Dr J noted that, despite the child having followed a program ofhomeopathic immunisation, whereby she received a total of twenty-

eight separate homeopathic remedies to protect her from serious

infectious disease, she was diagnosed with whooping cough (pertussis)

at the age of five, which diagnosis was confirmed with formal testing.

62. By way of context, Dr J also described accurately that the father and hiscurrent partner, on becoming concerned that the child was not protected

from preventable diseases and that she was also placing their new baby

at risk, had taken the child to a general practitioner who had commenced

the traditional program of vaccination for her by way of a series of

injections and oral treatments. Dr J acknowledged that this was done

without the mothers knowledge or consent. Dr J also noted the

mothers claim that she is not averse to using traditional western

medicine to treat the child and had, for example, administered Ventolinwhen the child had asthma. Dr J stated that the mothers assessment


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was that the child has been healthy throughout her life with minimal

illness.

63. Dr J assessed the child as being of average height and weight for her ageand presenting as developmentally normal.

64. Considering the relative merits of homeopathic prevention versustraditional medical vaccination Dr J stated that he had discussed the

childs situation with Dr R, an immunisation specialist from the Royal

Childrens Hospital in Melbourne, and that he had also consulted a fact

sheet on homeopathy and vaccination provided by the National Centre

for Immunisation Research and Surveillance (NCIRS) dated December

2009 and information provided by the mother on homeopathic

prophylaxis (also known as homoeoprophylaxis or HP) authored by

homeopath Dr G.

65. Dr J posed the key question to which his expertise should be directed is:whether there is sufficient scientific evidence to indicate that

homeopathic prophylaxis or HP actually works. I agree.

66. Dr J described that Dr G had referred to two studies from Brazil andCuba which indicated that HP was effective in preventing

Meningococcal Meningitis and Leptospirosis. Dr J stated that only one

of those diseases, Meningococcal Meningitis, is part of the mainstream

immunisation program, and that even if it is accepted that HP is

effective in preventing Meningococcal Meningitis, there is no evidenceto Dr Js knowledge that HP is effective in preventing any of the other

vaccine preventable diseases covered by the traditional immunisation

program. Dr J noted that this is also the position of NCIRS.

67. Dr J further stated that the NCIRS fact sheet, the British HomeopathicAssociation and the National Register of Homeopaths recommend that

people should receive conventional vaccinations and that homeopathic

preparations should not be recommended as a substitute for

conventional immunisation.

68. While acknowledging that traditional immunisations do not guaranteeprotection against vaccine preventable illnesses, Dr J stated that:

incontrovertible evidence from numerous scientific studies attests to

the safety and effectiveness of our current traditional vaccination

program.

69. Dr J concluded that although he was sympathetic to the mothersposition, he hoped that she could view his recommendation in the light

that both the British Homeopathic Association and the Australian

Register of Homeopaths see traditional immunisation as

complementary to homeopathic treatments.


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70. Dr J recommended that, as suggested by immunisation specialist Dr R,the child should be given the four month, six month, 18 month and four

year vaccination protocols at two monthly intervals until she has caught

up completely with the standard level of immunisation for a child of her

age, even though she has confirmed the natural pertussis infection. Dr Jstated that it would seem to be inappropriate to leave her only partially

protected by traditional immunisations.

71. Dr J also gave oral evidence on 28 March 2012, responding to the oralevidence of Mr G for whose oral evidence and cross examination he was

present in court to hear.

72. In his oral evidence, Dr J maintained his recommendation in hispublished report that the child be traditionally vaccinated, however he

noted the need to change the schedule of vaccinations as the child is

now almost a year older than at the date of his report.

73. Considering the risk-benefit ratio of traditional vaccination, Dr Jstressed that the risks of vaccination are outweighed by the risks of

natural infection with the diseases vaccinated against. He stated that, for

example, two out of 1000 children with measles have inflammation of

the brain, which can lead to seizures, brain damage or death. He noted

that measles vaccination can also cause severe reactions and brain

inflammation, however that this occurs in less than one in a million

cases. Dr Js evidence was that vaccination is one of the most

significant advances in childrens health in the last hundred years.

74. Dr J was at pains to stress that he did not philosophically or morallyoppose homeopathic medicine and homoeoprophylaxis. His argument

was that there is insufficient evidence as to the effectiveness of HP to

justify its use as a replacement for traditional vaccination at the current

time.

75. Dr J suggested that the Cuban study of HP vaccination againstleptospirosis, referred to and relied upon by Dr G, represented one of the

weakest types of scientific analysis, and that while HP vaccination mayhave been associated with the drop in rates of infection in that study,

causality had not been demonstrated. He also noted that in his twenty

years of medical practice he had never personally encountered a case of

leptospirosis. There were no inroads into this evidence in cross

examination of Dr J by counsel for the mother.

76. In relation to Dr Gs evidence as to the risks of traditional vaccination,Dr J said that he was not aware of any link between traditional

vaccination and allergies. He conceded that there was a hypothetical

risk that introduction of foreign proteins in vaccinations early in lifemay increase the risk of later allergic reactions to those proteins, but also


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gave evidence of a new school of thought emerging which suggests that

introducing foreign proteins early in life in fact guards against later

allergies. In relation to a link between traditional vaccination and

epilepsy, Dr J conceded that vaccines may lead to encephalitis as a result

of fever and febrile convulsions in one in a million cases, but he stressedthat the risk of encephalitis from fever was far greater as a result of

natural infection. In relation to Dr Gs suggestion that traditional

vaccination is linked to ADHD, Dr J stated that ADHD was a particular

area of interest of his, that ADHD has many causes and he was not

aware of a causative link between vaccination and ADHD in post

vaccination surveillance studies. In relation to an alleged link between

traditional vaccination and autism, Dr Js evidence was that that debate

was over, and that large Scandinavian studies, as well as studies in

France and the United States, had disproved any potential link.

77. Dr Js evidence was that: post initiation vaccine surveillance; thewidespread use of vaccination on millions of children; and published

articles in peer reviewed scientific journals; suggested to him that

traditional vaccination is relatively safe. I accept that evidence as

correct.

78. Dr J gave evidence that vaccination would not only be to the childsimmediate benefit, but that immunisation serves a public policy of

helping to eliminate diseases in the wider community. Dr J said that if

immunisation levels in the community drop too low, then diseases maysurvive in unimmunised members of the population, whereas high levels

of immunisation can lead to herd immunity and the eradication of

disease. I do not give public policy considerations any significant

weight in this case but have regard to it in the context of how reasonable

the views of the father and the stepmother are.

79. In relation to the child specifically, Dr J suggested that there was apossibility that she may not need all traditional vaccinations. He said

that it was possible that the child may be immune to whooping cough as

a result of her previous diagnosed infection with that illness, andmoreover that she may be immune to other infectious diseases as a result

of natural exposure. He also stated that the risks of infectious diseases

are higher for infants than for children of the childs age. Dr Js

evidence was that immunisation specialist Dr R had suggested that

traditional immunisation for whooping cough is nevertheless desirable

for the child, as it may improve the childs protection from the disease.

He also agreed that it may cover strains different from the strain which

infected the child. Dr J suggested that a blood test could be used to

assess the childs immunity, and she could then be immunised onlyagainst those diseases to which she was not already immune. When


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asked, however, Dr Js evidence was that some vaccinations are difficult

or impossible to obtain individually, and come combined with other

vaccinations. This may make selecting specific vaccinations for the

child more difficult. Dr J estimated that the child may need

approximately six injections to bring her up to speed or words to thateffect.

80. Dr J stated that traditional vaccinations for the child would be availablefree of charge at the Royal Childrens Hospital and that the parents

could turn up without an appointment and have her vaccinated. His

evidence was that a general practitioner may also be able to vaccinate

the child, but that this may cause the parents expense, may involve

making appointments, the general practitioner would have to adhere to a

schedule of vaccination for the child that is different from the usual

schedule (as the child is commencing vaccination at a late age) and thevaccines would need to be properly stored and fresh.

81. Regarding the preservatives and additives in traditional vaccines, Dr Jsevidence was that there are some limited alternatives and different

brands, but that he wasnt sure of the exact additives of the vaccines

save that no vaccine currently on the market contains heavy metals.

82. In relation to vaccination for polio, Dr J agreed that the childs personalrisk of contracting that disease was extremely low, but that continued

immunisation of the population is important to prevent a resurgence of

the disease.

83. Dr J suggested that, of the vaccinations available, chicken pox may beone of the less critical vaccinations, but tempered this recommendation

by noting that chicken pox may be the most serious illness that many

children suffer, and he agreed moreover that vaccination can also help to

prevent shingles later in life.

84. When questioned about the HPV vaccination, Dr J agreed that, given itsrelative newness, it is difficult to know for certain how safe that

vaccination is. He stressed however that the vaccination guards againstserious consequences (cervical cancer being a major killer of middle

aged women). Ultimately he agreed that the decision to vaccinate the

child against HPV did not have to be made now.

85. Dr Js evidence was that the childs risk of infection may be reduced byliving in a household of other people who have been vaccinated, as they

would be less likely to transmit infection to her, but that the fathers two

year old child would not have yet finished her immunisation schedule

and thus having the child T, unimmunised, in the same household would

place that infant at risk of infectious diseases.


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86. Dr Js evidence was that he does not believe that HP immunisation doesany harm, and that most doctors do not object to it as parallel

immunisation, but that he would oppose using HP vaccination in place

of traditional immunisation.

87. I accept Dr Js evidence.Doctor G

88. Doctor G is not a medical doctor. He has an Honours degree inEconomics and had a career in financial services prior to becoming a

homeopathic practitioner in 1984.

89. In 2004 he graduated from a PhD program to researchhomoeoprophylaxis (HP).

90.

Since 1992 Doctor G has held very senior positions in the field ofhomeopathy, received recognition in the form of an award, and been a

leader in homeopathic education. Dr G has also authored a number of

books on homeopathy.

91. Dr G specialises in treating patients suffering chronic disease usingconstitutional and anti miasmic homeopathic treatment, and describes

himself as an international expert on homeoprophylaxis. He advised

that when clients come to him regarding vaccination for their children,

he discusses options with them, including the option of traditional

vaccination. He said that he then details the risks and effectiveness ofHP and traditional vaccination, namely that in his opinion HP is safe and

effective, and that traditional vaccination is reasonably effective but has

both short and long term risks.

92. Dr G filed an affidavit on 5 January 2012, and also gave oral evidenceon 28 March 2012. He presented as a somewhat defensive but

nevertheless confident witness who tended to frame his evidence using

medical or homeopathic terminology and with a high level of detail,

which detail often was either only tangentially relevant or lacked

background context. This, at times, gave the impression that Dr Gsfocus was on the appearance of authoritativeness at the expense of

clarity, or perhaps even by way of that lack of clarity.

93. In his oral evidence, Dr G clarified that, in Australia, homeopathy is nota registered profession and any person can call himself or herself a

homeopath. To be on the register of homeopaths, however, one has to

undergo a course of appropriate study. Dr Gs evidence was that, as well

as his PhD, he also has three diplomas in homeopathy.

94. In his affidavit filed 5 January 2012, Dr G agreed generally with Dr Jthat there are some infectious diseases that should be protected against,


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however he disagreed with Dr Js recommendation that the child be

protected by traditional vaccination, and also argued that the child

should not be vaccinated against pertussis (either traditionally or with

HP) as the child had already acquired the disease and that is the most

effective form of natural immunisation.95. In his affidavit, Dr G agreed with Dr J that the critical question is

whether there is scientific evidence that HP actually works. Dr G

argued that HP is effective in preventing a number of diseases. To

substantiate his position Dr G stated in his affidavit that:

1. his research determined individual rates for whooping

cough, measles and mumps;

2. the program researched also covered tetanus, polio,

rubella, Hib and diphtheria and there were no cases ofinfection recorded;

3. his current data collection includes Pneumococcal disease

and Meningococcal disease (Dr G did not state any

outcomes of that data collection);

4. over 2.2 million people were homeophathically

immunised against Leptospirosis in a Cuban study, and

Cuban research has also collected data on Swine flu

which research showed that over 9.8 million people were

homeopathically immunised against it.

96. Further in relation to the effectiveness of HP, Dr G listed (in both hisoral evidence and affidavit) four sources of evidence as to its efficacy

which he said that he discussed with his clients:

1. over 200 years of clinical evidence (although he did not

detail what was the substance of that evidence);

2. consistent evidence in short-term epidemic conditions

showing effectiveness of around 90 per cent (Dr G

referred, in his affidavit, to one study of childrenvaccinated against meningococcal meningitis);

3. evidence showing the effectiveness of long-term HP at

90.4 per cent (Dr G, in his affidavit, directed the reader to

a book which he personally authored);

4. HP interventions involving 2.2 million people against

leptospirosis and 9.8 million people against swine flu (also

noted in his affidavit with reference to a book of his own

authorship).


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97. Dr G described in great detail in his oral evidence the Cuban trials intoHP for leptospirosis, a water born bacterial disease which is endemic in

Cuba. Dr G agreed that the diseases which the child T would be

vaccinated against in Australia are diseases which are not endemic in

our community and indeed that some are diseases that are very rarelyfound in Melbourne, Australia. He also agreed with counsel for the

independent childrens lawyer that leptospirosis is a disease that it not

well understood.

98. Dr G stated in his affidavit that:we find that because HP works on consistent natural principles

which do not change and do not rely on strain-specific versions of

antigens (as do vaccines), that once the method is established as

being effective for one or more diseases then it applies to all

diseases, as is demonstrated by the consistency of results across allresearchers and conditions of around 90% effectiveness.

99. Dr G noted that this concept is very different to traditional medicalprinciples, such as Dr J may be used to, but that it is fundamental to

natural medicine and homeopathy. This does not appear to me to be an

attempt to use scientific evidence to support the use of homeopathy,

but rather, Dr G is justifying the use of homeopathic immunisation using

principles which are fundamental in natural medicine and homeopathy

in particular and which are, on his own evidence, foreign to traditional

medical science.100. Dr G concluded in his affidavit that there is sufficient rigorous

evidence to show that HP is comparably effective to vaccination.

When it was put to Dr G by counsel for the independent childrens

lawyer that the board which registers Australian homeopaths

acknowledges that there has not been sufficient scientific investigation

of homeopathic prophylaxis and therefore supports further controlled

ethical research into its use, Dr G responded that while he supports

further research, he does believe that there has been sufficient

investigation of HP to demonstrate its effectiveness.101. Turning to the comparative efficacy of traditional vaccinations, Dr G, in

his affidavit, acknowledged that orthodox publications list a vaccine

effectiveness of between 75 per cent and 95 per cent. Dr G then stated

that in a book which was authored by Dr G himself, it was found that

real-world effectiveness in wild outbreaks can be much lower. Dr

G also stated that no efficacy trials exist for certain vaccines such as

Hepatitis B for newborn infants.

102. Considering the risks, Dr Gs evidence was that there are short and longterm risks of traditional vaccination. Dr G stated that the short term


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risks of traditional vaccination are rare, but include brain damage and

death, and that when Japan increased the minimum age of vaccination

from three to 24 months there was a drop in compensation claims for

harm as a result of vaccination. I suggested that this may simply have

been due to the twenty-one month lag in which children were not beingvaccinated, and thus an overall drop in vaccinations. In relation to the

long term risks, Dr G said, both in his affidavit and his oral evidence,

that, as there has been no study in an orthodox medical journal, to his

knowledge, which looked at totally vaccinated and totally unvaccinated

children in an age appropriate way, and taking into account the

complete health of the children (including intellectual, emotional and

physical factors), it cannot be scientifically said that vaccination is

completely safe in the long term. Dr G also did not point to any such

long-term trials considering the full health of children who received

homeopathic vaccinations in order to demonstrate the safety of HP. Dr

J, in his evidence, noted that the most authoritative scientific study

would be to immunise half the population and then monitor both the

immunised and non immunised groups over an extended period,

however that such a study would not be possible because, given the

effectiveness of traditional immunisation, it would not be ethical to

withhold traditional vaccinations from half the population.

103. Dr G further cited studies which he alleged indicate the long term risksof vaccination: a study by French physician Michel Odent whose

research on the effects of breast feeding also revealed, according to Dr

G, an increase in rates of asthma in children vaccinated against

whooping cough; Dr Gs own study conducted for his PhD in which he

looked at fully vaccinated, HP vaccinated, unvaccinated, and

constitutionally protected (through the promotion of general health to

protect from infectious diseases) children and found higher rates of

allergies in traditionally vaccinated children (although it is, in my

opinion, of note that Dr G only accepted as suffering allergies those

children who were diagnosed by an orthodox GP, and in my mind there

is some doubt as to whether parents who do not vaccinate their children,

or who vaccinate them homeopathically, would be likely to take their

child to a traditional GP for allergy diagnosis. I suggest they may be

more likely to self treat, or to attend on a homeopathic practitioner,

which would mean that their allergies were not accounted for in Dr Gs

study); and a comparison of about 10,0000 children which revealed

higher levels of asthma, eczema, ear hearing conditions, hay fever and

sinusitis in vaccinated as opposed to unvaccinated children.


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104. Regarding the safety of homeopathic immunisation, Dr J, in hisaffidavit, wrote that unlike potentially toxic traditional immunisation,

homeopathic immunisation:

is not potentially toxic due to the method of remedy preparation

which removes any potentially toxic materials (noting that manypromoters of pharmaceutical medicine say HP cannot work because

nothing is there so nothing obviously cannot be toxic)

105. This statement does not clarify how potentially toxic materials areidentified and eliminated from homeopathic remedies but not from

traditional remedies, except for suggesting that there is no toxicity to

homeopathic remedies because nothing is there which statement

seems to rely on circular logic, as if HP remedies do contain nothing

then their efficacy is indeed called into question. If on the other hand

they do contain something then there is a possibility that thatsomething may be toxic, and it is not made clear how this potential

toxicity is safeguarded against or removed.

106. Dr G further stated that there is no disagreement that [HP] is lesspotentially toxic both in the short term and the long term than

traditional vaccination. This statement flies in the face of Dr Js

evidence that numerous scientific studies attests to the safety and

effectiveness of our current traditional vaccination program, and also to

the evidence in the appendix to Dr Js report, Homeopathy and

Vaccination in which it is explicitly stated that the safety andeffectiveness of homeopathic preparations is unknown, and further,

under the heading Which is safer, homoeopathic preparations or

conventional medicine for immunising my child?:

Conventional medicines such as vaccines are thoroughly

scrutinised, tested, evaluated and followed up for their safety and

effectiveness. Homeopathic preparations do not undergo the same

level of attention. Many homeopathic preparations have not been

subjected to testing or approval through government regulatory

bodies, such as the Australian Therapeutic Goods Administration or

the United States Food and Drug Administration, which is standard

practice for conventional vaccines.

107. Dr G acknowledged in his affidavit that both the British HomeopathicAssociation and Australian Register of Homeopaths state that they

support vaccination in the absence of medical contraindications. He

noted also that the British Faculty state that HP is of value if there are

medical contraindications. Dr G went on to state that, as discussed in

one of his books, there was some history of pressure put on the

Association by vaccine supporters, seeming to suggest that the British

Homeopathic Association does not in fact condone traditional


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vaccination despite its public statements to that effect. In his oral

evidence Dr G further described that the British Homeopathic

Association had made a statement in apparent support of traditional

vaccination because they were put under pressure from the British

Medical Faculty, which was withdrawing certain medications unlessstatements were made supporting vaccination. Dr G explained that he

had found out about this through his lawyer, who approached the British

Medical Faculty to gain information for Dr G in relation to a defamation

suit which he brought against Channel 9.

108. Dr G then went on to state in his affidavit that:either way it is clear that many homeopaths would regard the

practice of injecting toxic materials into healthy infants as being

medically contraindicated, and thus the statements are heavily

qualified.

109. Dr G reiterated this point in his oral evidence. By this statement itappears that Dr G is implying that:

Traditional vaccinations involve injecting toxic materials

into healthy infants

Most traditional vaccinations on healthy infants are thus

medically contraindicated

The British Homeopathic Association and Australian

Register of Homeopaths would thus not support themajority of traditional vaccinations.

110. This conclusion contradicts the clear meaning of the position articulatedby the British Homeopathic Association and the Australian Register of

Homeopaths, which position is the support of traditional immunisation

in all cases except those, impliedly exceptional cases, which are

medically contraindicated. If vaccination in the traditional way was

considered to be medically contraindicated because of the very contents

and method of delivery of such vaccination, then there could be no case

where traditional vaccination is not contraindicated. In my opinion thisinterpretation would require me to torture the language and is, frankly,

duplicitous. Dr G also suggested in his oral evidence that this is an

instance of homeopaths not wishing to seem to be rabid anti-vaccinists.

It seems to me that the position of the British Homeopathic Association

and Australian Register of Homeopaths goes further than that, and is in

fact a statement in explicit support traditional vaccination.

111. Dr G concluded in his affidavit that there are minor potential benefitsbenefits to the child T of conventional vaccination but that the potential

risks were potentially significant and that it is unnecessary to take


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any risks when the potential benefit is so marginal. Dr G thus

recommended in his affidavit that:

parents should be free to choose either vaccination or HP as they

prefer based on factual advice from both experienced orthodox and

homeopathic practitioners

which recommendation is of some limited use in this case where the

parents fundamentally disagree on which form of immunisation to use

for the child T.

112. In his oral evidence Dr G also referred to his research and work intreating children who are vaccine damaged, that is, harmed by

traditional vaccination. Dr G argued that the success of his homeopathic

preparations of traditional vaccines in treating the children demonstrated

that the cause of the illness had to have been the initial vaccination.

When asked whether such procedures could be used for the child

subsequent to her being traditionally vaccinated, Dr G said that in some

cases vaccine damage is not reversible, and that for a child not

presenting with any symptoms, constitutional treatment (whereby the

constitutional type of the child is identified and remedies are provided

to improve their vitality) would be preferable. Dr G also suggested

that high doses of vitamin C prior to and following the injections may

reduce the risk of toxic shock to the child.

113. Dr G also raised in his oral evidence that his own child had been vaccinedamaged. When I asked Dr G about this, he referred to the time when

he was still a nice little accountant living interstate, and that his

perfectly healthy daughter had become progressively ill (weight loss,

constipation, listlessness) after a series of three vaccinations

commencing at four or five months of age. He described that she

developed a bowel obstruction after the third injection, which medical

doctors at a Hospital refused to relieve, and so he was forced to relieve

the obstruction himself. Dr G said that shortly after that he moved to

Queensland and had to leave his daughter with a friend for treatment.

He said that it took two years for his daughter to regain weight andvitality and that this was very distressing. Dr Gs evidence was that

when he now compares his vaccinated and unvaccinated children he

notes that the unvaccinated children are in better psychological health

than those vaccinated traditionally. He did not suggest that there were

any further physical ramifications for his vaccination damaged daughter.

Dr G said that this experience made him realise that he couldnt rely on

orthodox medical advice and had to do his own research, which led to

his career change to homeopathy.

114. To the extent to which Dr Gs evidence conflicts with Dr Js evidence,principally the efficacy of HP, I prefer Dr Js evidence.


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the child to be ostracised from that household because she is not

immunised. It is not determinative but is a matter to which I have

regard.

123. I have already been critical of the extent to which each parent has lostsight of the emotional needs and wellbeing of the child and have, up tothe date of the trial, failed to heed the warning of Mr H delivered in

2010 that:

The prognosis for [the childs] ongoing psychological and

emotional health is poor if the parties fail to reach a rapprochement

and come to terms with the need for a more cooperative and

authentic approach to the joint parenting of [the child].

124. The fathers behaviour in having the child immunised in secret reflectsvery poorly on his attitude to the responsibilities of parenthood. I rejecthis position that the end justifies the means. I am not critical of the

mother. She has openly followed a program of homeopathic

immunisation with the full knowledge of the father and without

subterfuge. She genuinely embraces it as being in the childs best

interests. I do not conclude that homeopathic immunisation is best for

the child or that it is a realistic and effective alternative to traditional

immunisation. However, that does not detract from my assessment of the

mothers attitude to the discharge of her parental responsibilities as

being genuine and, save for the dreadful and ongoing parental conflict,

beneficial to the child.

125. I will make an order that the child be vaccinated traditionally accordingto a schedule of catch-up vaccines to be prepared by Dr J. The father

will be responsible for obtaining the schedule and the mother must be

provided with an opportunity to verify it prior to the course of

immunisations being commenced.

126. It follows that I will not grant the mothers application for injunctiverelief.

127. Regarding the manner in which the traditional vaccination schedule is tobe carried out, I am not convinced on the mothers evidence that she is

capable of presenting the traditional vaccination to the child as being a

good thing. I am, on the other hand, confident that the father and Mrs

Kingsford believe that traditional immunisation would be good for the

child and would be able to present it to her in that light. In those

circumstances, I propose that the father and his wife, Mrs Kingsford be

responsible for taking the child to her immunisation appointments.

128. The evidence regarding the childs familiarity with Dr O is persuasive,and I propose to order that he carry out the vaccinations in accordance


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with the schedule prepared by Dr J. I note also that Dr O offers

vaccination free of charge.

129. I am satisfied that it is in the childs best interests for Dr O to administerthe immunisations. This is not a convenient locale for the father or his

wife. However, against that inconvenience I weigh the fact that the childand mother know and trust their doctor and that the mother will be able

to discuss the program with him at her expense and convenience to

what, I am satisfied, will be an enhanced degree of comfort to herself

and the child.

130. I do not consider that it is in the childs best interests to receive singledose immunisations. Diphtheria, tetanus and whooping cough is one

example of combined dose immunisations. Dr J opined that the

combined dose is safe and appropriate and I accept that is the case. I

acknowledge the mothers concerns but prefer that the child beimmunised by as few injections as children in the mainstream receive.

Of course, there will be extra immunisations administered by way of

catch up. However I am not in favour of the mothers early

preference for single dose immunisation.

131. Any expense for the immunisations can be borne by the father. As notedabove, I was informed that Dr O offers vaccination free of charge.

However, if an expense does arise it should be borne by the father as I

take into account that the mother has already undertaken the arduous

task of the homeopathic course.

132. For the above reasons, I make the orders set out at the beginning ofthese reasons.

I certify that the preceding one-hundred-and-thirty-two (132) paragraphsare a true copy of the reasons for judgment of the Honourable JusticeBennett delivered on 19 October 2012.

Associate:

Date: 19 October 2012

judgement immunisation

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