Tattoos, HIV, Breastfeeding and The Risk of Harm To The Child

Tattoos, HIV, Breastfeeding and The Risk of Harm To The Child

The controversy in Jackson & Macek [2015] FCCA 1656 focussed on whether the mother should breast feed their child. The parties were each 20 years old and their child was born in 2014 (11 months of age at the time of the interim hearing on 5 June 2015).

Whilst the suicidal ideation of the mother was noted by Meyers J at paragraph [18], His Honour found at paragraph [45] that:

• There is no evidence before the Court that suggested that the mother’s mental health is such that at this time it poses a risk to the child, in that the child will suffer physical or psychological harm from coming into contact with the mother or spending time or in this case living with the mother
• in circumstances where the Court forms the view that the mother will not abuse the child or neglect the child or subject the child to family violence as a result of her mental health issues.

At paragraph [37] His Honour said:
“The Court must consider the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is a paramount consideration with primacy over all others, and it is a consideration the Court gives greatest weight of those condensations at s.60CC when determining what is in the best interests of the child, particularly with respect to the injunctive order sought by the father in the proceedings.”

At paragraph [39] His Honour discussed the possible HIV infection of the mother as a result of her being recently tattooed:
“It is also a fact in the proceedings, that the mother has been tested for HIV. She has shown negative, the test results warns that there is a window period that the mother is currently in, being the time between the test and having obtained the tattoo. This would mean that, if the mother was positive for HIV as a result of having been tattooed a result for HIV may not have shown up in the blood test that she has tendered in evidence.”

Relevantly at paragraph [40] His Honour found:

• When looking at the issue of risk in this matter must look at the benefits to the child and the detriments to the child and try and balance what is in the best interests of the child.
• There is a need to protect the child from physical or psychological harm.
• If the child is exposed to HIV, it would result in physical harm.
• The child would be exposed to physical harm as a result of neglect, that is, if the mother decided to breastfeed the child in circumstances where she could not be sure she had not contracted HIV as a result of having received a tattoo.
• Exhibit F, being the document from the Australian Breastfeeding Association, sets out the main cause for concern for breast feeding mothers of viral infection referring to hepatitis A or C and HIV is that of HIV, because it is known to be able to be transmitted via breast milk.

The mother successfully appealed the decision of Meyers J to the Full Court of the Family Court Jackson & Macek [2015] FamCAFC 114 (19 June 2015) per Ryan, Aldridge and Hannam JJ and had the injunction set aside.

Aldridge J relevantly discussed the facts as follows:

• At paragraph [18] “The mother’s lawyer agreed that the mother had gotten a tattoo four weeks ago [prior to 3 June 2015] but said that she did not get an infection and had the tattoo through a reasonable tattoo parlour.”
• At paragraph [19] there was further discussion about the possibility of the mother having hepatitis from the most recent tattoo.
• At paragraph [21]
• On the resumed hearing, the mother had available blood test results that indicated she did not have hepatitis.
• Her blood also tested negative for HIV
• but that was subject to the caveat that, if there had been a risk of exposure to the virus, a test taken less than three (3) months after that risk of exposure would not exclude the risk of an acquisition of HIV from that exposure.

Aldridge J dealt with the breastfeeding of the child as follows:
[62] “The breastfeeding of a child clearly falls within the phrase ‘any aspect of the care of a child’. Therefore in making the order in relation to breastfeeding the trial judge was obliged to have the child’s best interests as the paramount consideration. That then required the court to determine those best interests by having regard to s 60CC of the Act. One would have expected the trial judge to have undertaken, however briefly, a consideration of in particular the benefits to the child both emotionally and physically of continued breastfeeding and any negative effects from its sudden cessation.”

[63] “There was no such consideration. The consideration of the matters took place only after the trial judge had decided to impose the injunction. It is true that s 60CC(2) refers to protecting the child from physical harm but any risk as to this must be weighed against the other s 60CC considerations. It may well be that the risk of harm to the child could, in appropriate circumstances outweigh those considerations, but that does not mean they should be ignored. The best that occurred here was the inclusion of the phrase “looking at perhaps the benefit to the child of breastfeeding” (at [43]). This was insufficient.”

Ryan and Hannam JJ agreed with Aldridge J.

Discussion
With the greatest of respect to their Honours, the Full Court of the Family Court did not appear to significantly consider the risk of the child being exposed to physical harm as a result of neglect, if the mother decided to breastfeed the child in circumstances where she could not be sure she had not contracted HIV as a result of having received a tattoo, as Meyers J identified at para [40]. Both Courts acknowledged the medical evidence that at the time of the hearing was that the mother could not exclude the risk of an acquisition of HIV from her most recent tattoo.

Where there was doubt in the evidence, the discretion should have fallen in favour of the safety of the child, in my submission. The primary duty of the mother was to act in the best interests of the child. Whilst there was uncertainty about the HIV status of the mother, the safer option would have been for her to refrain from breastfeeding the child.

In my submission the practical implication of the injunction against the mother breastfeeding the child was that it need only have lasted until the mother could produce medical evidence that she was not infected by HIV and therefore presented no risk to the child of transmitting that disease via her breast milk.