Appeal against Breastfeeding Orders

In the matter of Jackson & Macek [2015] FamCAFC 114, a mother appealed to the Full Court of the Family Court against an order that she be restrained from breastfeeding an eleven month old child after having recently acquired a tattoo.

The trial judge made several firm comments from the bench regarding the issue, including the following:

Look, you can’t give blood if you’ve had a tattoo recently, to protect… the recipient of the blood from potentially having hepatitis. Does the mother really want to punt the risk that she hasn’t? If you get hepatitis you’ve got it for life, and you can pass on hepatitis through breast milk. So that’s what I’m saying is, do you really want to punt the risk? I hope they are reputable. I hope they really clean their needles. I hope their sterilising machine really worked, because if it didn’t – if it seriously didn’t – then your child could have a condition that he will have for the rest of his life that will probably ultimately kill him. So that’s the point I make.

However, the only evidence before the Court about the risks of breastfeeding following the acquisition of a tattoo was evidence that the trial judge obtained himself from browsing the internet. The trial judge then made his decision on the basis of such material, claiming it to be “common knowledge” and therefore admissible under the Evidence Act.

The Full Court overturned this decision, stating that the trial judge did not have sufficient expert evidence to support such a decision. Furthermore, the trial judge was criticised for focusing only on the risk of the child contracting a disease (in the absence of any proper evidence) without balancing the other relevant factors concerning the child’s best interests, as set out in the Family Law Act, including “the benefits to the child both emotionally and physically of continued breastfeeding and any negative effects from its sudden cessation”.

This case highlights the need for caution when making generalised comments about the negative effect a particular parent’s conduct has on the care and welfare of a child. A mere difference of opinion or parenting style may not be enough to succeed, even if you happen to get a judge who shares your concerns! When seeking judicial intervention to stop one parent’s conduct, it is essential to obtain reliable expert evidence that supports any such application.

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