By Alicia Lucas, Lawyer
Perhaps one of the most contentious aspects flowing from “the COVID age” is the issue of vaccination – of adults – and more recently of children. There are people who support the vaccination, and those who do not.
Within our family law team, a question we are often asked by our clients is “What happens if the parent’s do not agree on vaccination?”.
The issue of vaccination falls within the concept of “parental responsibility” of children. Under the Family Law Act 1975 (“the Act”) there is a presumption that parents have joint (or equal shared) parental responsibility for their children. This presumption can be rebutted by the Court (however that is a matter for a separate article). When exercising their joint parental responsibility parents must consult with each other and try to reach a joint decision as to the outcome.
Where joint agreement cannot be reached, the parents should participate in a mediation. This is an avenue for the parents to discuss their different views and where possible, reach an agreement that can be documented appropriately.
If agreement cannot be reached at mediation, and the parents remain adamant in their opposing views, the matter ought to proceed before the Federal Circuit and Family Court of Australia (“the Court”) for a Judge to decide the outcome. This will require a parent to file an Initiating Application (and supporting documents), setting out the Order/s they wish for the Court to make. As part of that process, the other parent will file a Response (and supporting documents) which details the Order/s they wish the Court to make.
In considering whether to vaccinate a child, the Court will have regard to Section 60CC of the Act. Pursuant to this section, the Court must be satisfied that is in a child’s best interests to be vaccinated, for an Order to be made. Any such application should be supported by medical evidence about the benefit (or risk) of the vaccination desired and/or required. This will assist the Court in making a decision that is in the child’s best interests as it will provide them with the benefit of medical expertise as to the issue.
Ultimately, any decision made by the Court will be made in the best interests of the child who is subject to the application before the Court. It may be that the Court determines it is in the best interests of one child to receive a vaccine, but not in the best interests of another.
In the past, the Court has expressed a preference for children to be vaccinated unless there is a medical reason, supported by expert medical evidence, that it would not be in a particular child’s best interests for the vaccination to occur.
It is anticipated that a similar approach may be adopted by the Court with respect to the COVID vaccines. As of yet, there have been no published decisions of the Court on this topic. It may be that the Court’s COVID-19 List (being a list specifically developed to address urgent matters arising from the pandemic) will see an influx of applications as to this issue, noting the Pfizer vaccine has recently become available to children aged 5-11 years old. Until those Applications are decided, the answer remains uncertain.
If you are faced with the issue of having or not having your children vaccinated, contact our office today to speak with one of our family law team.
This article is for the purposes of summarising general information only and is not considered legal advice and should not be relied up on as a substitute for professional advice.