Archive

Young girl receiving COVID-19 vaccination

Vaccinating your child against COVID-19 – separated families

Vaccinating your child, or not, is a decision which becomes even more complex where separated parents hold differing views.

PLEASE NOTE THE INFORMATION PRESENTED IN THIS ARTICLE IS DESIGNED TO ASSIST IN SHOWING THE ATTITUDE OF THE COURTS IN THIS SITUATION ONLY.

When parents can’t agree about vaccinating their child/ren the matter can come before The Family Courts.

Since the rollout of the COVID-19 vaccination and its subsequent availability to children aged 5 to 11, the Federal Circuit and Family Court of Australia’s (“the Court”) COVID-19 list has seen an increase in parenting disputes regarding whether their child ought to be vaccinated. 

Parenting disputes about whether a child ought to be vaccinated long predate the COVID-19 pandemic.  The Court has been making decisions on traditional vaccines and whether a child should be vaccinated for many years.[1]

[1] See for example Makinen & Taube [2021] FCCA 1878; Covington & Covington [2021] FamCAFC 52; Kingsford & Kingsford [2012] FamCA 889. 

Vaccinating your child – Parental Responsibility

A parent has ‘parental responsibility’ for a child.  Parental responsibility is defined within the Family Law Act 1975 to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[1] Simply put, parental responsibility covers the day-to-day decision making in relation to the child, as well as major long-term issues, including decisions relating to the health of the child.

Therefore, a decision to, or not to, vaccinate a child falls within the realm of parental responsibility. 

It is a presumption applied by the Court that parents share equal shared parental responsibility for the child.  This means that both parents must make a genuine effort to come to a joint decision on any major long-term issues.

If an agreement cannot be reached between the parents regarding whether a child should be vaccinated, the Court may be required to decide on the issue.

[1] Family Law Act 1975 (Cth) s 61B.

Can the Court order a child to be vaccinated?

It has been long accepted in case law that the provisions of the Family Law Act 1975 afford the Court a discretionary power to make orders regarding the medical treatment of a child.[1]

The Court has no fixed position on whether a child ought to or ought not to be vaccinated.  The starting point in any parenting dispute is that the Court’s paramount consideration is in the best interests of the child.

[1] Secretary, Dept of Health & Community Services v JMB & SMB (Marion’s Case) (1992) 175 CLR 218; Dacombe & Paddison [2021] FedCFamC1A 103.

Vaccinating your child – What does the case law say?

Case law tends to show that most parenting disputes regarding vaccination result in the Court finding that it is in the best interests of the child to be vaccinated.  The most common approach taken by the Court is to allocate sole parental responsibility regarding the child’s health to the parent in favour of vaccinating the child.

Below is a discussion of a recent decision of the Court:

What can we take away from this?

A decision made by the Court are always made with the best interests of the child in mind.

It is best that the Court be aided by expert evidence relating to the child in question, not just general information on the vaccine or its potential side effects.  Such evidence may be obtained from the child’s paediatrician or general practitioner who are familiar with the child’s medical history.

If you require assistance in a family law matter, please contact the Purcell Taylor Lawyers office on (07) 4758 5858.

This post contains general advice.  Each circumstance will vary and must be considered based on its individual facts.  Please obtain legal advice as necessary.


Read More →