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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:
Cranston & Perrson (No 2) [2022] FedCFamC1F 187
Cranston & Persson (No 2)[1] is a recent decision heard by Deputy Chief Justice McClelland at first instance in the Federal Circuit and Family Court of Australia’s division 1.
This decision concerned the discrete issue as to whether the mother should be given sole parental responsibility in respect to determining whether the parties’ children should be vaccinated against COVID-19. The father opposed the children being vaccinated.
On 21 January 2022, the mother attended upon the children’s general practitioner (“GP”) to receive advice about whether the children should receive the COVID-19 vaccination. The GP recommended that the children should be vaccinated, and the children received their first vaccination on the same day.
The father then filed in the Federal Circuit and Family Court of Australia. He sought an order that the mother be prohibited from arranging for the children to receive their second dose.
The father filed a single affidavit, and the mother filed three affidavits that attached the medical certificates of the children’s GP, as well as documents and webpages downloaded from the relevant government websites regarding the COVID-19 vaccine.
During the proceedings, the father indicated an unwillingness to accept the substance of the advice provided by government health authorities and showed scepticism towards the authenticity of the relevant government agencies. In his oral submissions, the father contended that the Queensland and Commonwealth governments “lie to people”.[2]
McClelland DCJ stated he was not satisfied that the father would have regard to the health advice provided by both the Queensland and Commonwealth Governments with an “open and objective mind,” which McClelland DCJ considered to be “a necessary precondition to a decision being made that is in the best interests of the children.”[3]
McClelland DCJ concluded that unless satisfied that there is an unacceptable risk to the children, he will make an order giving the mother sole parental responsibility regarding the specific issue of vaccination of the children in respect to the COVID-19 virus, where vaccination is in accordance with the national immunisation program or as recommended by the children’s general practitioner.[4]
McClelland DCJ further concluded that is in the children’s interests for them to be vaccinated, both from the perspectives of the health of each child and also their day-to-day life as active members of society, including attending school and their ability to participate in extra-curricular and sporting activities.[5]
[1] [2022] FedCFamC1F 187.
[2] Cranston & Persson (No 2) [2022] FedCFamC1F 187 at [46].
[3] Cranston & Persson (No 2) [2022] FedCFamC1F 187 at [47].
[4] Cranston & Persson (No 2) [2022] FedCFamC1F 187 at [48].
[5] Cranston & Persson (No 2) [2022] FedCFamC1F 187 at [50].
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.
MADISON PRESTON | Family Lawyer
Ph: (07) 4758 5858
E: madison.preston@purcelltaylor.com.au
LinkedIn: Madison Preston
