Covid-19 Vaccination Issues and Family Law

It has now been more than two years since the beginning of the Covid-19 pandemic and the courts have not been immune to Covid-19 or Covid-19 vaccine related issues.

Statistics say that more than 90% of Australian adults are vaccinated and over 85% of Australian children over 16 years have been vaccinated.  However there are still a significant number of Australians that are not in favor of receiving the vaccine. The Court is receiving applications from parents who want their children to be vaccinated but where the other parent

1. has vaccinated their children against diseases such as chicken pox, measles and tetanus but do not consent to a Covid-19 vaccination,

2. does not consent to any vaccination.

These issues have been complicated matters for the Federal Circuit and Family Court of Australia (FCFCOA), and a search of recent judgements in the FCFCOA reveals a high number of cases addressing how the court has approached the Covid-19 vaccine issue.

Vaccination comes under what is known as parental responsibility and the standard position of the court is that parents have joint parental responsibility, this means they jointly decide on the major long-term issues in relation to the child, including health, religion, education and other cultural matters.

If parents of a child cannot agree on vaccinating their child, then parents are often left with no other choice than to make an application to the FCFCOA seeking an order that the child be vaccinated (after attending a family dispute resolution conference).

In the recent case of Covington & Covington, the mother did not consent to the vaccination of the child and the father wished for his child to be vaccinated. The court relied on evidence from the child’s pediatrician and the independent children’s lawyer to determine that it was in the best interests of the child to be vaccinated in accordance with the pediatrician’s recommendations.

Importantly on appeal it was determined that the FCFCOA has the power to make orders in relation to the vaccination of children if it is in the best interests of the children and that in this case it was in the best interests of the child to be vaccinated.

The matter was appealed to the High Court of Australia on the basis of a constitutional argument; however, this appeal was also unsuccessful. 

In other FCFCOA matters where the Covid-19 vaccine has been a point of contention and the court has had to consider many forms of evidence in making their decisions, including expert evidence, news articles, online posts and the opinion of the parents.

The matter of Palange & Kalhoun consisted mostly of the admissibility of evidence and the Covid-19 vaccine. The case considered the mother who wanted the child to be vaccinated and the father who did not want the child to be vaccinated, although the child had completed all of his routine childhood vaccinations.

During the hearing a doctor was called to provide evidence and provided the court with a table that set out the relative risks of Covid-19 infection against the risks of the Covid-19 vaccination. This table was considered, amongst other things, such as publications from the World Health Organization and the Australian Government, to determine that it was the best interests of the child to be vaccinated against Covid-19 in order to reduce the risk of health impacts on the child rather than delay vaccination and exposing the child to the risks of Covid-19.

The court considered the child’s individual circumstances including his age and health, but ultimately the fathers concern (only evidenced by his personal beliefs that there may be an unknown adverse reaction at some unknown time in the future) did not provide a reason to the court why it was not in the best interests of the child to get vaccinated.

This is a complex area of law and advice should be obtained from a specialised family lawyer if an application to the Court is to be made. If you have any questions regarding an application for a child to be vaccinated or any associated family law matter please contact our firm to make an appointment with Abby Thorne on (02) 4944 3322.

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