Update: March 2021
On 12 March 2021 the Family Law Courts announced they are expanding the criteria for the COVID-19 List (a list created at the start of the COVID-19 pandemic to address any disputes that arise as a direct or indirect result of the COVID-19 pandemic). The COVID-19 List criteria now includes applications relating to disputes between parents about the vaccination of their child(ren) against COVID-19. This will result in a decision being made by a Judge in a timely manner and will have that specific issue heard and resolved quickly.
The great debate on vaccinating children has been a hot topic in the Family Law Courts for many years now. Whilst the COVID-19 pandemic has significantly impacted our lives in 2020, the suggestion that a vaccine to prevent this pandemic is close to release has been met with mixed emotions by separated parents.
There is a presumption that separated parents should have equal shared parental responsibility. Equal shared parental responsibility is the notion that parents, jointly, make long-term decisions about the health, education, religion and culture of the child(ren).
Section 61DA says:
- When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
There is no automatic presumption that separated parents have equal shared parental responsibility – the presumption must be applied when making a parenting order only.
In this article, we discuss what happens when one parent is an anti-vaxxer and the other parent is pro-immunisation.
Immunisations are considered to be a “major long-term issue” which requires a decision to be made by both parents. In the event the parties cannot agree on whether to vaccinate their child(ren), we encourage parents to attend mediation to try and reach an agreement as to what is in their child’s best interests. The debate between parents on whether or not to vaccinate is black and white and it is challenging for parents to reach a compromise unless one parent is willing to shift their ground. There is no half measure.
If negotiation fails and an application is made to the Family Law Courts, the Courts may make one of the following orders:
- granting one parent sole parental responsibility;
- granting one parent sole parental responsibility only for medical and health matters, specifically for immunisations; or
- requiring the parents to ensure the child(ren) are immunised in accordance with the National Immunisation Program Schedule or that they are immunised in accordance with a homeopathic immunisation program.
There are a number of reported Family Court decisions in relation to this issue, including:
- The matter of Duke-Randall & Randall [2014] FamCA 126. The parents had agreed to not vaccinate their two children. After separation, the father became concerned for the children’s health and changed his position to support vaccinations. The mother argued that vaccinations should be classified as a “special medical procedure” however the Court ultimately held that a vaccination is not a special medical procedure as, on the most part, vaccinations are a common aspect of childhood. It was ordered by the Court for the children to commence a “catch-up” vaccination program.
- The matter of Kingsford & Kingsford [2012] FamCA 889 saw the father secretly vaccinate the children without the mother’s consent. The Court nevertheless determined that it was in the best interests of the children to be vaccinated.
Should a COVID-19 vaccine be released, it is likely to cause an increase in applications to the Family Court where parents cannot agree if the vaccination is in the best interest of their child(ren). Maybe like ‘Mr Kingsford’, some parents will take matters in their own hands. The competing considerations for the Court will be immunising the child against exposure to COVID-19 and the long-term effects of the vaccine, which initially will be unknown. Many parents may worry that this has been a vaccine with little research on the long-term effects, and in the context of a low risk to children from COVID-19 they will be adamantly opposed to the vaccine. This shapes up to be difficult terrain for the overworked Family Law Courts when the vaccine, or several of them, finally become available.
If you are a separated parent with opposing views to that of the other parent, on the question of whether to vaccinate your child(ren), you should seek legal advice to assess the options available to you to try and resolve the dispute.
For further information, please contact our Family and Relationship Law team.