The modern day “water-cooler” talk seems to be who has been vaccinated, who has not, why not, when are they getting vaccinated and what version are you getting. The debate on vaccinating children has been a hot topic in the Family Law Court for many years. As the COVID-19 pandemic continues to impact our daily lives, the relevant vaccines have been met with mixed emotions by separated parents.

There is a presumption that separated parents have equal shared parental responsibility enabling parents (in theory) to jointly make long-term decisions about the health, education, religion and culture of their child or children.

A long-term issue which requires a decision to be made by both parents is immunisations (generally not specifically for COVID-19). If the parents are unable to agree whether to vaccinate their child/children, we would suggest that parents attend mediation to try to reach an agreement as to what is in the child’s best interests.

If negotiation fails and an application is made to the Federal Circuit and Family Law Court of Australia, the Court may make any of the following orders:

1. Grant one parent sole parental responsibility.
2. Grant one parent sole parental responsibility only for medical and health matters (specifically immunisations)
3. Require the parents to ensure the children are immunised in accordance with the National Immunisation Program Schedule.

Some decisions dealing with this issue:

• Duke-Randall & Randall [2014] FamCA 126. The parents had agreed to not vaccinate their two children. After separation, the father had concerns for the children’s health and changed his opinion to support vaccinations. The mother argued that a vaccination should be categorised as a “special medical procedure” however the Court determined that a vaccination was not a “special medical procedure” and were a common aspect of childhood. The Court ordered that the children were to commence a “catch-up” vaccination program.
• Kingsford & Kingsford [2012] FamCA 889. The Father vaccinated the children without the mother’s consent. The Court determined that it was in the best interest of the children to be vaccinated.
• Makinen & Taube [2021] FCCA 1878. The Father sought sole parental responsibility for decisions regarding immunisations and vaccinations for two children aged 8 and 12. The application did not seek that the children were to be vaccinated for a particular disease but according to the doctors’ recommendations. The Father was given sole parental responsibility concerning vaccinations which would ensure any vaccinations were given when warranted.

Now that the COVID-19 vaccines have become available for children, it is likely to cause an increase in applications where parents cannot agree if the vaccine is in the best interest of their child/children.

If you are a separated parent with opposing views to that of the other parent on the issue of whether to vaccinate your child/children, you should seek legal advice with our family law team to assess the options available to you to try and resolve the dispute.

 

It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.