With vaccinations being encouraged for adults in the wake of the COVID-19 pandemic, and infections spreading into younger age groups, what are your obligations in relation to your children – should you vaccinate them?
This issue becomes more complex in circumstances where parents are separated and cannot agree.
What the law says
Pursuant to section 65 of the Family Law Act 1975 (Cth) (Family Law Act) the family law courts have the jurisdiction to order the vaccination of a child, irrespective of whether the parties consent to such an order. Specifically the Court can order that:
One party have sole parental responsibility for medical decisions for a child to the exclusion of the other parent;
- Order a parent (or both) to ensure a child is vaccinated, or
- In the reverse order, a restraint against the parents having a child vaccinated.
In order to defend an application by a parent or an order by the Court for a child to be vaccinated, it is necessary to show by way of medical evidence that the vaccination poses some medical or other risk to the child.
Relevant cases
This issue was addressed in the case of Mains & Redden (2011) FLC 93-478. In that case, the Federal Magistrate had ordered that the child of the parties should be immunised and made findings that this was in the child’s best interests. At that time the child was 6 years of age. The mother subsequently appealed the decision and sought leave to adduce further medical evidence suggesting that the child was at risk of an adverse reaction to the vaccinations. On the basis of this evidence, the appeal was allowed and the matter was remitted for rehearing.
The issue of vaccination was addressed in the recent 2021 decision of Covington & Covington (2021) FLC 94-014. In this case, the parties agreed by way of consent to orders in December 2020 allowing the father to take the then 10 year old child to receive vaccinations as advised by his medical practitioner and otherwise that both parties would support the child being vaccinated. A few days later, the mother withdrew her consent to the orders and filed a formal appeal, and also sought a stay of the orders. This application was dismissed, and the mother filed an application to the High Court arguing that s51(xxiiiA) of the Commonwealth of Australia Constitution Act includes a freedom from compulsory vaccination. The Full Court found that the mother’s argument had no merit.
Resulting from recent COVID-19 lockdowns, the family law courts have developed a national COVID-19 court list, which allows parties to bring urgent applications before the Court provided that they are related to or impacted by the coronavirus pandemic. Whilst at this stage, the issue of a COVID-19 vaccination for children has not been tested, it may only be a matter of time as communities continue to experience extended lockdown periods.
Talking Families Podcast – vaccination and COVID-19
Would you consent to your child being vaccinated against COVID-19? In our latest Talking Families podcast, Monica Blizzard, Greg Oliver and Stefan Pantellis discuss potential issues around the proposal to vaccinate children aged 12 and above with the Pfizer vaccine. We also discuss the approach typically taken by the Family Court when parties cannot agree to vaccinate or immunise their child, and some recent cases dealing with this issue. Click here to listen to the episode via Apple Podcasts.
Our Talking Families podcast is available to listen to and subscribe via Google Podcasts, Spotify, Apple Podcasts and other leading podcast platforms.
