26 June 2015
Ban on Breastfeeding Overturned on Appeal – Family Court
A Newcastle Federal Circuit Court Judge’s decision to prevent a mother from breastfeeding her 11 month old child has been unanimously overturned on appeal to the Full Bench of the Family Court.
The trial judge had placed an injunction on the mother preventing her from breastfeeding the child on the basis that the mother had recently had a tattoo and the judge considered after reviewing the Australian Breastfeeding Association website that this placed the child at risk of contracting a blood borne disease from breastfeeding. The mother suffered post-natal depression and required medication to treat it which was a cause of concern for the trial judge. The father had not made any application to restrain the mother from breastfeeding.
The matter came before the Court as the mother had applied for a recovery order after the father failed to return the child after a visit. The father had previously pleaded guilty to assaulting the mother and was on a good behaviour bond. An apprehended violence order was in place. The trial judge made orders that the child was to spend between 9am and 3pm with the father on alternating days.
On appeal, the full bench of the Family Court said the arrangements put in place by the trial judge were ‘bizarre’ and it was very rare for it alternating day arrangements to be in the best interests of the child. His Honour Justice Aldridge said in relation to the breastfeeding injunction that the trial judge had failed to grant the injunction on the evidence before him and had misunderstood the level of risk to the child from breastfeeding following a tattoo. His Honour noted that the trial judge had failed to acknowledge the emotional and psychological benefits to the child from breastfeeding and the impact of cessation of breastfeeding when weighing up what was in the best interests of the child as required by the Family Law Act 1975. The Appeals Court said that judges should not ‘mistake their own views for facts or expert evidence’ and noted difficulties of a judge relying on information they obtained by searching the internet.
His Honour Justice Aldridge was only able to find only one reported case where a mother was restrained from breastfeeding her child. In Re Baby A  NSWSC 787 an injunction was granted to prevent a mother who was HIV positive from breastfeeding. The mother herself had agreed she would not breastfeed and the only issue before the court was whether that agreement should be reinforced by an injunction.
Jackson & Macek  FamCAFC 114 (19 June 2015)