Following on from our article last October, Louise Dorian provides an update on this issue and revisits the decision in Covington & Covington (2021) to explain how we can assist parents with understanding their options and requirements for vaccinating children, and to help you arrive at an agreed outcome, or whether a decision to make an application to the court is required.
Most Australians now have access to a vaccine against COVID-19.
As at 15 March 2022, 94.8% of our population aged 16 and over are fully vaccinated and children aged 5 years and above are able to receive the vaccine.
There is still a significant number of Australians who are not in favour of receiving the vaccine.
This argument between parents, especially as the vaccines have become available for younger children, can be a complicating factor in family law litigation.
This is not an article about whether those views are right or wrong, but an analysis about how we, as family lawyers, approach this issue.
Since the start of 2022, we have seen a significant increase in parenting disputes involving the vaccination of children, where one parent wishes for their child to be immunised, but the other does not.
Where this argument arises, either parent has the option of making an application to the Federal Circuit and Family Court of Australia (FCFCOA), asking the court to make orders supporting their desired outcome for their child.
Such applications may be eligible to be included as part of the FCFCOA’s National Covid-19 List, which is a new initiative designed to deal with urgent issues arising directly from the pandemic. However, even if the particular matter does not qualify under that initiative, the FCFCOA is still the appropriate forum for such an application to be filed.
Parties to family law litigation may not understand that the argument “I believe the vaccine is good / or bad” is not sufficient evidence or argument for a judge to make orders in their favour.
Although it is understandable that many parents’ applications to the court have their roots in their individual beliefs or opinions and that, by proxy, their child should be raised in accordance with those beliefs or opinions, it is also required that a party presents admissible evidence to the court which supports the child’s ‘best interests’.
The FCFCOA is required to consider each child’s ‘best interests’ as the paramount consideration in any determination regarding parenting issues or responsibility. To support such an application would therefore generally require reference and reliance upon evidence being provided by a credible expert, who might be a psychologist, paediatrician or general practitioner, as to the child’s health requirements, including vaccination.
As family lawyers, this awareness of the family law court’s approach to this issue informs our advice to parents enquiring as to how best to deal with the question of vaccinations when the parents cannot agree.
Previous decisions of the courts has stated, and the recent case of Covington & Covington (2021) FamCAFC 52 confirmed that the FCFCOA has jurisdiction to make orders requiring or restraining vaccinations for a child.
In the case of Covington, the mother sought to appeal consent orders which required the parties to support their child in receiving vaccinations. The consent orders provided, amongst other things, that the parents retained shared parental responsibility and that the father would be responsible for taking the child to receive vaccinations as advised by a medical practitioner. The mother later sought to withdraw her consent to the orders.
The medical issue in this matter was not specific to Covid-19 vaccines however the court’s judgment made it clear that it considered it necessary to publish its decision to clarify the issues both regarding vaccination and parental responsibility issues.
The mother sought to appeal to the High Court on the basis that Constitution of Australia includes a freedom from compulsory vaccinations. There were significant core issues with the mother’s application, but the court ruled that the consent orders should be maintained so that, among other things, the parents retained shared parental responsibility for the 10 year child and the child should be vaccinated as directed by a medical practitioner, with the father to have that responsibility.
The consent orders that were ultimately endorsed by the court included obligations on the parents to the effect that:
- both parents could attend paediatric appointments with the immunisation service;
- the parents were to ensure that they were ‘calm and co-operative’ during such attendance and not expose the child to any conflict or distress;
- that neither parent were to discuss vaccinations with the child until the Independent Child Lawyer had met with the child;
- that both parents were to support the child’s attendance for the immunisations;
- that the child’s time before the immunisations be with the father and the mother’s time suspended; and
- the father take the child to the appointment but that the mother be permitted to meet them at the location and support the child during the process.
The orders restrained the mother from contacting any medical practitioner attended by the child and, essentially, limited the child being exposed to the sort of language and fear in relation to vaccinations that the mother exhibited.
In almost all circumstances, going to court should be seen as the ‘last resort’ for parenting disputes. There is already an obligation that parents, in the absence of some urgent event, attend for the purposes of family dispute resolution (also called a parenting mediation) to attempt to engage and explain their concerns and offer their proposals as regards to the children before being able to file a court application.
If you are experiencing problems around parenting and vaccination, please contact us. We can help.