Recent discussion has emerged surrounding the implementation of a Coronavirus vaccination and related parenting issues in family law. Consideration of the challenges presented by COVID-19 has prompted a number of questions as to how the Family Court will respond when confronted with the issue of parents immunising their children against Coronavirus.
The Family Law Act 1975 (Cth) requires parents to make a genuine attempt to reach a joint decision in relation to major long term issues affecting their child. This can prove challenging in circumstances where parents have opposing views on the issue of vaccinations in respect of children. In the event a parent refuses to allow their child to be immunised, the other parent may make an application to the Court for an Order that the child be vaccinated. An Order allocating parental responsibility for medical decisions, including immunisation, to one parent (sole parental responsibility) can be sought. The Court must regard the child’s best interests as the paramount consideration in these circumstances. The Court has, historically, largely favoured vaccinating children in line with the National Vaccination Program Schedule.
In Tolbert & Tolbert (No 2)  FamCA 532, the Court ordered that a father have sole parental responsibility in relation to the immunisation of his children in line with the national immunisation schedule. In Duke-Randall & Randall  FamCA 126, the children were precluded from participating in extra-curricular gymnastics. The children had contracted whooping cough and had never been immunised. The Court found that it was in the children’s best interests for the father to immunise the children as recommended by a single expert immunologist who opined that both children were, “healthy and did not have any increased risk of side-effects or adverse events than the general population.” Similarly, in Panno & Panno  FCCA 305, the Court ordered that the children be vaccinated in light of evidence from the childrens’ paediatrician concluding that there was no “medical contra-indication to routine immunisation”. The case of Kingsford & Kingsford  FamCA 889 concerned a mother who sought homeopathic immunisation of her child. The Court held this was not an effective alternative approach to normal, regular immunisation. The Court ordered that the child continue the routine medical vaccinations as was previously arranged by the father devoid of the mother’s knowledge or consent.
It is important to note that the Family Court is facing new and distinct issues in this area consequent upon the outbreak and subsistence of the COVID-19 pandemic. The Court will be required to weigh up a number of factors to determine if it is in the child's best interests to be vaccinated against Coronavirus. Considerations include government policy, medical research and publications, medical opinions on long-term effects and child immune responses and the specific, individual circumstances of each family, including immune health and time spending (e.g. with elderly family such as grandparents or immunocompromised family members, carers or supervisors).
At Swan Family Lawyers, we are committed to staying abreast of and informed about case updates, court directions, research and legal issues in this evolving area.
Contact our office on (08) 8227 1970 to speak with a solicitor should you wish to seek specific legal advice in relation to issues of parenting amidst the COVID-19 pandemic.