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Breastfeeding and Risk to a Child

In a case that made media headlines recently, a mother was initially restrained from breastfeeding her child due to the perceived risk of transmitting a disease to the child following the mother obtaining a tattoo.

The mother appealed the decision and the Full Court of the Family Court of Australia, in Jackson & Macek [2015] FamCAFC 114, overturned the decision.

The issue of breastfeeding was initially raised by the trial judge when there was no application for any restraint by the father. This was raised in the context of the mother taking medication for post-natal depression. The judge suggested the mother should alter her medication. The judge suggested the change in medication would improve the mother’s mental health, but such a change would require her to stop breastfeeding. The judge thought the change would be in the best interests of the child.

In this context, it was raised that the mother had recently obtained a tattoo to which the judge responded by discussing the risk of passing on hepatitis to the child. This risk was stated by the judge as existing on the basis that a person cannot give blood following getting a tattoo due the risk of disease transmission.

When the matter returned to court two days later, the judge provided the parties with information brochures from the Australian Breastfeeding Association website. This resulted in the concern for transmission of hepatitis abating but the possibility of HIV transmission became of issue. The issue of the mother’s medication did not resurface.

The question for the Full Court was whether the brochure was a document “the authority of which cannot reasonably be questioned”, which would have been required before the judge could rely on it. The Full Court accepted that the document’s source was reliable but identified that its author, the basis on which the statements in it were made and the evidence upon which the conclusions were made, remained unknown.

The Full Court assessed the evidence of the risk to the child and found it did not support the trial judge’s finding of risk. It further found that the judge should have assessed the benefit to the child of continuing to be breastfed, but found that no evidence was sought or provided.

As there was no evidence that the child was at risk, the order was overturned.

By Nicholes Family Lawyers


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