Dr Google wrong: Tattooed Mum not a risk to her child

The Family Court of Australia has overturned a decision of a Federal Circuit Court judge who issued an injunction stopping a mother from breastfeeding her child after she had decided to get a tattoo.

In what I can only describe as a controversial decision, a Federal Circuit Court judge sided with the father in what the media reports have described as a bitterly contested parenting dispute.  The father had made an application to stop the mother breastfeeding the child.

Judge Matthew Myers, a Federal Circuit Court judge who sits in Newcastle, determined that the child’s mother, by breastfeeding the child, posed some type of unacceptable risk to the child. This was based on his Honour’s view that despite the mother having tested negative to HIV and hepatitis, the test results were “not conclusive”.

The mother appealed the decision and the appeal was fast tracked. The full bench (3 judges) of the Family Court of Australian in Sydney heard the appeal on Friday, 19 June 2015. The appeal was fast tracked given the importance of the issue.

The Full Court determined that Judge Myers had made an error and lifted the injunction. It appears that Judge Myer may have based his view on his own research, most likely using Google, and having read articles from the Internet including from the Hepatitis Association and the Australian Breastfeeding Association.

The Full Court was critical of the judge’s methods saying that the evidence considered by the judge “was not capable of establishing the risk identified” by him. Generally speaking, it is not the place of a judge to rely on their own views and they must take into consideration the evidence before them put forward by the parties. Courts quite frequently rely on expert medical evidence to determine these types of issues.

However, it is unclear from the media reporting of this decision whether the judge had even informed the parties of what he had based his views on. Clearly, this was an error of judgement by his Honour.

The Family Law Act has been amended a number of times to ensure that the risk of harm, abuse, neglect or family and domestic violence are at the forefront of the legislative framework that judges must use when determining parenting orders. I respectfully disagree with his Honour’s interpretation of the legislation. It seems to me that Judge Myer’s view about the mother deciding to get a tattoo and the risk that this could pose to a child is not an unacceptable risk.

When the courts look at unacceptable risk, it is usually in circumstances where they need to determine if a parent or a person poses an unacceptable risk to a child as a result of past behaviour. This might be a situation where there has been family or domestic violence or where a person has a criminal record that might be relevant.

There are decisions going back many years relating to parties having dispute about whether a child should be breastfed. It is often an issue particularly with very young children where they are being breastfed about the amount of time that the child should spend with the other parent. Generally, when a child is newborn they require frequent breastfeeding. Whilst this can be dealt with by the mother expressing breast milk, I have seen a number of disputes relating to how much time a young child can spend with the other parent when breastfeeding is an issue.

Breastfeeding a child is a decision that should not need to be made by courts.

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