To Vaccinate or Not

The COVID-19 pandemic has seen society as a whole change over the last two (2) years.

Since the introduction of a vaccine for COVID-19, the Family Law System has seen an influx of parents disagreeing as to whether to get their child/ren vaccinated.

There is a presumption under the Family Law Act that parents share equal parental responsibility for their children. This includes making long term decisions in relation to their child/ren’s medical treatment. Therefore, equal shared parental responsibility applies, both parents must provide consent to the child becoming vaccinated.

If one parent has sole parental responsibility, that parent can decide to vaccinate their child without the consent of the other parent.

If there is a disagreement in relation to vaccinating a child, between parents with shared responsibility for that child, it is mandatory, with limited exceptions, to engage in Family Dispute Resolution (more commonly known as ‘mediation’), with the view of attempting to resolve any disputes prior to commencing Court proceedings.

If mediation fails to resolve the dispute, then, an Application to the Court may be necessary to have the Court resolve the impasse between the respective parents in the exercise of the shared parental responsibility.

If the Court is asked to determine whether a child should or should not be vaccinated (in relation to COVID-19 or otherwise), the Court must have regard to what is in the best interest of the relevant child.

The Court would ask for and rely upon expert medical evidence about the benefits and risks associated with a vaccine. A parent’s preference is not determinative and is not likely to sway the Court significantly one way or the other.

In determining what is in the best interest of the child, the Court may also consider is any views expressed by the child/ren, depending on their age and maturity. Of Course, for the Court to place significant weight on any views expressed by the child, the child must have sufficient understanding and intelligence to enable them to understand fully what is proposed. When a child does have this level of understanding, this is sometimes referred to as ‘Gillick competency’.

To address the issues surrounding COVID-19 vaccinations, the Federal Circuit and Family Court of Australia introduced a priority COVID-19 list to deal with the applications involving COVID-19 disputes such as vaccinating children.

As seen in a recent case of Covington & Convington (2021) FLC 94-014, the Full Court emphasizes that the Court does have the jurisdiction to make an Order that a child be vaccinated.
Ultimately, regardless of the position to vaccinate or not, as is the requirement for all parentings matters, that Court must make Orders in the best interests of the child.

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