Vaccinations – Where Do You Stand?

Vaccinations - Where Do You Stand?

With the continued rollout of the COVID-19 vaccines, parents may find themselves in a dispute as to whether their children should receive a vaccine when they become eligible.

Decisions regarding immunisation of children falls within the realm of “parental responsibility”, as it involves the long term care, welfare and development of a child.

The Family Law Act presumes that both parents have parental responsibility unless CERTAIN (significant) circumstances apply. Long term care, welfare and development decisions, such as immunisations, require both parents to consult each other and reach an agreement. If parents cannot reach an agreement, they will need to seek an Order from the Court.

When such issues have come before it, the Family Court will, ordinarily, support the immunisation of a child. For example, in Mains & Redden [2011] and Duke-Randall & Randall [2014], the Court found that it was in the children’s best interests to receive vaccinations, with the Court following medical advice that they were highly unlikely to suffer any adverse effects.

The recent decision in Covington & Covington [2021] confirmed that the Court does have the power to make an Order for vaccination and that such power is not subject to whether or not parents have provided their consent.

In Covington, Orders were made by consent that, amongst other things, the parties’ child could be vaccinated. Shortly after consenting to those Orders, the mother sought to withdraw her consent and made a number of applications to have the Order discharged in both the Family Court and High Court.

In the High Court, the mother argued that compulsory vaccination contravened section 51(xxiiiA) of the Constitution, which gives Parliament power to make laws for the provision of “medical and dental services (but not so as to authorise any form of civil conscription)”. The High Court dismissed her application and held that the Constitution did not affect the power of the Family Court to make an Order for a child to be vaccinated.

The Full Court of the Family Court found that the mother’s argument had no merit and dismissed her application. The fact that the mother had sought to withdraw her consent after the Orders were made did not invalidate or change the binding effect of the Order.

The Court confirmed its power to make Orders for vaccination and referred back to the long-standing case law in support of this. It also referred to its powers under section 65 of the Family Law Act, which provides that a Court can make any parenting Order it deems fit, irrespective of whether there is consent of the parties.

Similarly, in Makinen & Taube [2021], the father made an application for sole parental responsibility for decisions regarding the immunisation of the parties’ two children. The mother opposed to the children receiving any immunisation as, prior to separation, the father had not been involved in the children’s medical decisions and he had never expressed his view about vaccinations. The mother also relied on a number of medical articles showing a link between vaccines and harmful side effects, and a reference in the Australian Immunisation Handbook that it is difficult to predict whether someone will experience side effects, whether mild or serious.

Orders were made for the father to have sole parental responsibility in relation to the children’s vaccines and to follow the recommendations of the children’s general practitioner. The Court found that it was in the children’s best interests to receive vaccines and that the father would be more likely to follow medical advice. The medical evidence the mother sought to rely on did not support the general, well-accepted view of most medical practitioners that children should be vaccinated.

Following the introduction of new Court Rules on 1 September 2021, parents must first participate in Family Dispute Resolution (FDR).

Speak to us regarding your options for FDR and for further assistance if FDR does not assist.

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