Breastfeeding decision highlights difficulty of making judgments in short timeframes

Did you see the internet implode on Friday over a Family Law Court's decision involving a breastfeeding tattooed mother?

Now there's a lot of misconstruing of the decision, but it has some interesting messages about how a court should go about making a decision.

The decision today was an appeal against judgement made earlier this month where a judge in the Federal Circuit Court had erred in issuing an injunction against a mother breastfeeding the parties' 11 month old baby.

From the summary of the judgement it appears that of his own volition (rather than as a result of a request by the parties) the Federal Circuit judge questioned whether it was in the child's best interests for the Mother to be continuing to beastfeed the child when the evidence was that she had 4 weeks ago been tattooed, was on post-natal depression medication and had used cannabis on one occasion in the past 2 years.

The judge in making his decision relied on documents from the websites of Hepatitis Australia and the Australian Breastfeeding Association and was satisfied that there remained a risk of transmission of HIV to the infant if the mother continued breastfeeding.

In the Appeal, the Full Court commented that this highlights the need for expert opinion evidence to be given by persons who actually have expertise in the field, "judges must not mistake their own views for either facts not reasonably open to question or as appropriately qualified expert evidence. That those views may have been obtained by the judge searching the Internet compounds rather than alleviates the difficulty".

The Full Court considered the judge had erred by failing to consider the benefits to the baby, both emotionally and physically of continued breastfeeding and any negative effects of suddenly stopping breastfeeding.

So, what are the messages to be taken from this judgement.

No doubt the Full Court got it right — decisions like that can only be made on expert evidence.

But be cautious in criticism of the judge that was appealed. The case was an urgent one — the father had failed to return the child to the mother. The case was probably in a duty list with what could have been 40 to 90 other cases.

Many times when appearing in those busy duty lists the judges and even us lawyers dance around that line between what is, and is not, something that requires expert evidence. I can certainly recall more than one occasion I've relied on my own breastfeeding experience rather than expert evidence.

Even if that judge had the luxury of time in considering the matter, expert evidence takes time to gather and money — neither of which may have been available to the parties.

So the bigger question is probably how can we find a better way to have cases heard and the right evidence before the court.