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The state of play so far

In June last year, we published an article about what to do if separated parents disagree on vaccination? That article addressed the Family Court’s authority and power to decide over immunisations and vaccinations concerning children when parents are at odds with that. (see here:  https://www.lynnandbrown.com.au/what-if-parents-disagree-on-vaccination/).

This article broadly covers an update on the COVID-19 pandemic’s effect on family law matters.

Protocols – East versus West

In Australia, the Federal Circuit and Family Court of Australia (“Federal Family Court”) deals with parenting matters in all Australian jurisdictions, except for Western Australia. Western Australia established its own state-run Court, called the Family Court of Western Australia (“WA Family Court”) in 1975. In Western Australia, the laws concerning the care, welfare, and development of children from separated parents are governed by either the Family Law Act 1975 (Cth) or the Family Court Act 1997 (WA). The Family Law Act applies to those separated couples who were or are still married and the Family Court Act applies to separated de facto couples. The provisions in these two pieces of legislation are virtually the same.

In all other jurisdictions except for Western Australia, the Federal Family Court established a National Covid-19 list (“the Covid-19 list”) for matters as a direct result of, or in significant connection to, the COVID-19 pandemic.

Although the Western Australian jurisdiction differs to the east, the below matters are nonetheless useful in guiding how our Courts may react to similar circumstances.

Given that children between 5 and 12 years of age can now be vaccinated it is anticipated that we may see an increase in disputes about vaccinations.

The prevalence of disputes regarding the movement of children given the imminent opening of the WA state borders and the rapid spread of the Omicron variant in the rest of Australia may see an increase of litigation relating to Covid matters in the next 6 to 12 months.

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Kardos & Harmon [2020] FamCA 328 (7 May 2020)

Deputy Chief Judge McClelland had to determine whether the mother in this case had contravened the parenting orders for failing to allow the parties’ 3-year-old to travel from Adelaide to Darwin to spend time with the father in 2020. The mother was required to travel with the child on the flights at all times.

The Deputy Chief Judge determined that the mother had a reasonable excuse not to allow the child to travel to spend time with the father. This was due to the fact that the mother genuinely believed it was a necessary precaution to ensure that the mother and child remained safe and healthy. Given the mother and child would to have fly, “there was an unacceptable risk that the child would come into close contact with a person infected by the virus during the course of the aircraft travel”.

However, His Honour further emphasised the following:

[D]espite the existence of the COVID-19 pandemic, it is important that all reasonable efforts are made for children to spend time with both parents consistent with taking a responsible approach in respect to mitigating against risks associated with the presence of the COVID-19 virus in the community and, specifically, the child coming into close contact with a carrier of the virus.

We query whether the outcome of this decision or any other case with similar facts would have had the same outcome now that mandatory vaccinations are in effect, or if both parents are vaccinated.

Makinen & Taube [2021] FCCA 1878 (16 August 2021)

In this case, the parties were unable to reach an agreement about vaccinating the children. The father sought sole parental responsibility about medical decision-making regarding vaccination. The mother opposed that because she entirely disagreed with vaccinations.

The mother’s views and opinions were based on the literature that she had read. She argued that the adverse effects from vaccinations were of a concern to her and presented her evidence. The mother failed to present medical evidence to suggest the children are at any escalated risk of negative vaccine outcomes.

The mother also referred to government publications that she uncovered in her investigations that:

  1. Identified treatment options alternative to the use of vaccinations; and
  2. Children, generally speaking, “who are unvaccinated and who go on to suffer serious outcomes in the modern era range from zero to negligible”. The mother gave the example of polio, which had been declared eradicated in Australia in 2000.

However, the Federal Family Court was not persuaded by the mother’s evidence presented from her investigations and her arguments. Firstly, she had failed to provide information about what the government publications stated about treatments and their efficacy as alternatives to the use of vaccinations. Secondly, the mother seemed to ignore the fact that Australia has had a compulsory vaccination policy for children for many years, which in turn has led to the eradication of some of the most dangerous infectious illnesses and diseases in the modern era.

The Federal Family Court also noted that:

  1. Children not being vaccinated is contrary to the State and Federal Government health recommendations; and
  2. Non-vaccinated children and adults can be excluded from services and travel opportunities due to the risk they pose to other people.

Pandell & Walburg (No. 2) [2020] FCCA 1853 (13 July 2020)

Here, the father brought a contravention application alleging that the mother failed to adhere to their parenting orders concerning their 4-year-old child, with the most severe allegation centering around the father spending physical time with the child. The mother provided medical evidence that their child had a particular medical condition, that the child was at high risk during the pandemic and the child was at risk of contracting COVID-19. An updated medical report as Ordered by the Federal Family Court presented a conflicting position.

The Chief Judge had heard conflicting medical evidence. His Honour considered that the mother had a reasonable excuse to contravene the parenting orders up until she received the updated medical report. That reasonable excuse did not extend any further for the mother and Federal Family Court found at paragraph 35 that:

… it was obvious that there was no reasonable basis for the mother believing that it was necessary to withhold the child from the father, after that date, on health grounds. The mother, therefore, lacked a reasonable excuse for so withholding the child after [that date]…

Brogden & Brogden [2021] FamCA 642 (23 August 2021)

This matter concerned the interplay between a party’s right to be heard and the Federal Family Court in New South Wales acting cautiously to avoid exposing the children to the proceedings in circumstances whereby the State was in a lockdown.

Given physical courtrooms were not open, the parties would need to appear via electronic means (for example, by telephone). As such, the children could be at home and overhear the proceedings.

The Federal Family Court made the decision to adjourn the trial to a further date. The contested evidence to be presented to the Court included family violence.  As such, it could not be risked that the children might be exposed to the matter.

There was a greater possibility for an in-person trial in the coming months, and the Federal Family Court took the view that it would be better placed to conduct an in-person trial rather than doing one electronically.

What to do when you want to make an urgent application?

The Covid-19 list utilised by the Federal Family Court outlines factors[1] that must all be satisfied when the Federal Family Court is called upon for an urgent application that relates to Covid-19. These factors are as follows:

  1. The application has been filed as a direct result of COVID-19, or if indirect, has a significant connection to the pandemic.
  2. The matter is urgent.
  3. Identifying the risk factors that allege that there has been abuse, risk of abuse, there has been family violence or risk of family violence;
  4. If there is a contravention of orders, then:
  • the parenting orders were made within 12 months of the date the contravention is filed; and
  • the party contravening the order has behaved in a way that shows a serious disregard for his or her obligations under the order;
  1. Reasonable attempts were taken to resolve the matter. If not, then outline the reasons why the Family Court should consider that in the circumstances, it was not appropriate for you to comply with the pre-action procedures and that you should be exempted from compliance.
  2. The matter can be dealt with using electronic means (e.g. using telephone or video link).

The uniqueness of the WA Family Court and indeed the way Western Australia has experienced the pandemic to date has meant that until now WA did not to involve itself with a Covid-19 list, but this may be how things are handled should the opening of the borders cause increased pressure on the Family Court of WA.

For now, we know that unless there are contraindications for a particular child’s health the Court will support children being vaccinated, and the court will also likely support the continuation of court orders for both parents to spend time with children unless there is health evidence to suggest that this would not be in a child’s best interests.

If you or someone you know has queries about what to do if parents disagree on vaccination, or parenting arising from Covid related matters, or from separation generally, don’t hesitate to give the Family Law team at Lynn & Brown a call.

[1] https://www.fcfcoa.gov.au/covid-list

About the Author: Stewart is a senior family lawyer at Lynn & Brown Lawyers. Stewart has a wealth of family law knowledge and experience. His pragmatic approach in dealing with matters enables his clients to make informed decisions.  

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