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Case Law on Vaccinations in Family Law

Friday 27th May 2022

By: Helen Mulvaney

Case Law on Vaccinations in Family Law

As our society slowly eases back into some form of normality, while still in the midst of the COVID 19 pandemic, the issue of vaccinations is one that many people grapple with.

In respect of children in particular, it can be difficult when parties have separated and the parents may have differing views about vaccinations.

Several cases have been brought before the Federal Circuit and Family Court of Australia (FCFCA) on this issue, where separated parents have not been able to agree on whether a child should be vaccinated, and the Court has been asked to make that decision for the parents. The Court has had to consider the issues of risk to the child and the urgency of the matter in the context of an evolving situation.

In several cases, the Court has made an Order for a child to be vaccinated by giving one parent sole parental responsibility for that decision, regardless of whether there is already an order that the parents have equal shared responsibility for decision making about the child. The Court determined this to be in the child’s best interest, which is the paramount principle in determining parenting matters.

In the case of Covington v Covington [2021] the Full Court of the Federal Circuit and Family Court determined that the Court has jurisdiction to make an Order providing for a child to be vaccinated, regardless of whether or not the parties consent to that Order.  

In the case of Palange & Kalhoun [2022] FedFamC2F 149 both parties were self-represented and both submitted evidence about COVID 19 vaccines.  In certain circumstances the Court is able to hear evidence which is regarded as a matter of common knowledge. However in this instance the Judge was not prepared to accept that the information provided by the parties, other than from a doctor, as admissible evidence. In this case the Mother sought to have the child vaccinated and provided evidence about the importance and benefit of the vaccination. The Father’s position was that while he was not against vaccination, he thought it would be preferable to wait until there was more information available about any long-term effects on children of COVID 19 vaccinations.  In this case the Judge was satisfied that it was in the child’s best interest to be vaccinated against COVID 19 to reduce known and existing risks and an Order was made that the child be vaccinated.  

In the case of Karcher & Lacoss [2022] FedCFamC2F 281 the Court was required to determine whether one parent should have sole responsibility for vaccination decisions.  The Father wanted to the child to be vaccinated whereas the Mother opposed the vaccination due to lack of research on potential side effects of the vaccine.  The Judge determined that the Father have sole parental responsibility for the COVID 19 vaccinations and other vaccinations of the child, who was aged 11 years.  The Father had attended upon a GP and obtained a letter recommending that the child should be vaccinated against COVID 19.  The Judge did not wish to delay making a decision in circumstances where society was in the midst of a pandemic. The Judge’s view was that by the time research has been conducted as to any long term effects the pandemic could be over.  The Judge acknowledged that the responsibility for parental decisions lies with the parents but in this case where they cannot agree the Judge determined that one or other parent would have to have responsibility for the decision of vaccination, and in this case the Judge determined that the Father would have that responsibility, also taking into account that the child lived with the Father, and that the Father consulted with a GP, and had also respected the Mother’s wishes by not unilaterally proceeding with the vaccination prior to the matter being before the Court.

In Makinen & Taube [2021] FCCA 1878 an Order was made for the Father to have sole parental responsibility for medical decision-making regarding vaccination for a child aged 12. The Court made Orders for equal shared parental responsibility for other major long-term issues excluding vaccination.  In this instance the Mother was the primary care giver of the child. The Judge took judicial notice of the current information provided by State and Commonwealth Govt health officers in relation to COVID 19 and the pandemic. The Judge determined that as the parties’ views were opposed, if no Order was made in relation to the specific responsibility concerning vaccinations, then the children would not be vaccinated against any disease, unless the Father breached the joint parental responsibility Order or brought further proceedings to the Court. The Judge determined it was more likely the Father would heed medical advice about vaccinations and therefore he should be given the sole responsibility for that decision, to ensure that the vaccinations were given when required.

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