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When deciding whether to vaccinate a child, parents should ideally consult with each other and reach a decision together. However, the Family Court does have power to make orders in relation to the vaccination of children if necessary.

Although the rollout of the COVID-19 vaccine has been slow in Australia and is not currently available for children, other countries like Canada and the USA have approved the Pfizer vaccine for children aged 12 years and above.

Once COVID-19 vaccinations are available for children in Australia, it seems likely that disputes will arise over whether children should receive them, given the speed with which the vaccines have been developed, the lack of research on their long-term effects and that children appear to be at lower risk from the virus.

Aside from the public policy consideration of preventing the spread of the virus in the wider community, it is unknown how a decision not to vaccinate again COVID-19 may restrict a child’s movement and ability to participate in activities in the future.

It remains to be seen how the Family Court will determine disputes about these particular vaccines, but there is already significant case law on vaccinations and immunisations generally.

Parental responsibility and resolving disputes about vaccinations

Under the Family Law Act 1975 (Cth) (which applies to parents who have been married) and the Family Court Act 1997 (WA) (which applies to de facto relationships in Western Australia), parental responsibility means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

Parental responsibility includes the power for parents to make important decisions about their children, such as in relation to medical treatment and vaccinations.

For separated parents, there may sometimes be a court order or agreement for equal shared parental responsibility or for one parent to have sole parental responsibility.

If there is equal shared parental responsibility, then parents have an obligation to consult with each other and make a genuine effort to come to a joint decision about major long-term issues in relation to the child. Major long-term issues are defined to include issues about a child’s health.

If there is sole parental responsibility, then the relevant parent is typically authorised to make and act on their own decisions about such issues, without consulting with the other parent.

Unless sole parental responsibility is in place, parents should communicate with each other about their views on vaccination and try to come to a decision together.

If the issue is still in dispute, we would usually recommend that parents attend mediation with a Family Dispute Resolution Practitioner to further explore the issue and see if an agreement can be reached.

However, there is unfortunately little scope for compromise over whether to vaccinate or not, such that it may ultimately be necessary to apply to the Family Court for a judicial determination.

Relevant cases

There have been various cases where the Family Court has had to make orders in relation to vaccinating or immunising children, including for standard childhood immunisations like whooping cough, tetanus, polio and measles.

As with all decisions about children under the law, the paramount consideration is the child’s best interests. However, not many of the factors that the Court usually has to consider under s 60CC of the Family Law Act / s 66C of the Family Court Act are relevant in this context. Further, evidence from medical experts about the benefits and risks of the relevant vaccinations is necessary to assist the Court in making an informed decision.

In the recent case of Covington & Covington (2021) FamCAFC 52, it was confirmed that the Family Court does have jurisdiction to make an order providing for the children to be vaccinated, despite the mother arguing that this was unconstitutional.

In Duke-Randall & Randall [2014] FamCA 126, the Court made an order that the father be a liberty to vaccinate the children in accordance with the recommendations of an immunology specialist. The children had never been vaccinated, even though they had both suffered from whopping cough. Aside from being concerned about the children’s health, the father was also troubled about them being excluded from participating in gymnastics and holiday care due to their immunisation status, about them travelling to Indonesia for a family wedding without being vaccinated and about family members being reluctant to come into contact with them. An expert witness assessed that neither child presented with any known contraindications to vaccination such as allergies or impaired immunity and that they were at no increased risk of adverse effects than the general population. The Court said that none of the considerations in s 60CC greatly assisted in determining the issue, but found that it was in the best interests of the children to be vaccinated because there was no evidence of any risk and they would no longer be restricted in the various ways they had been.

In Kingsford & Kingsford [2012] FamCA 889, the mother preferred a homeopathic regime of vaccination, but the father’s new wife secretly took the child to receive multiple traditional vaccinations with the father’s knowledge. The father wanted the child vaccinated before she started school and because he was expecting a baby with his new wife. The Court did not give significant weight to public policy considerations about eliminating diseases in the community, but had regard to these in the context of the reasonableness of the views of the parents. The Court found after considering the expert evidence that “the efficacy of homeopathic vaccines in preventing infectious diseases has not been adequately scientifically demonstrated”. The Court took into consideration that because the child was 8 years old, the likelihood of her contracting the diseases was lower and that many of the diseases are not widespread in Australia. However, the Court ultimately decided that “not immunising the child by way of conventional immunisation would expose her to a risk of harm through infection with a preventable disease which risk is unacceptable”. The Court also commented that it would be contrary to the interests of the child to be ostracised from the father’s household because she is not immunised, but that the father’s behaviour in having the child secretly immunised “reflects very poorly on his attitude to the responsibilities of parenthood”. The Court made orders for the child’s immunisations to be brought up to date with the National Immunisation Program Schedule of the Department of Health.

In Manis & Reddin (2011) FLC 93-478, the Court upheld orders for the child to be immunised as recommended by the Department of Health for measles, mumps, rubella, diphtheria, tetanus, pertussis, varicella and papilloma. The Court previously held that the risk of the child suffering a significant reaction to immunisation was extremely remote and that once immunised, the child would not need to be withdrawn from school or from visits with the father or any further child he may have. However, the Court declined to order vaccinations for meningococcal, hepatitis and polio after finding that there was little likelihood of the child contracting these.

In summary, it seems the Court will need to weigh up the risk to the particular child of receiving a COVID-19 vaccination on the basis of the medical evidence available, against the risk to the child of contracting COVID-19 and the social impacts that being unvaccinated may have on the child.

If you would like assistance with resolving your parenting dispute, please do not hesitate to contact Lynn & Brown Lawyers to discuss booking an appointment.

About the author: Kate has practised family law for many years and worked at the Family Court. She is motivated to help clients achieve positive outcomes as efficiently and amicably as possible, but also has experience in court proceedings.

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