Article Category - Family Law 02 February 2021

The Australian Government are estimating the administering of approximately 80,000 vaccinations per week commencing mid to late February, starting with those in high priority groups.

Whilst children are not a high priority group for the vaccination roll-out, it is expected that disputes will arise in the future when separated parents disagree about whether their child or children should be administered the vaccine.

Without a court order providing otherwise, parents have shared parental responsibility for their child or children. This means that both parents are equally responsible for making decisions about long-term issues including vaccination.

Where these disputes arise they fall under Part VII of the Family Law Act 1975 (Cth) and can be determined by the Federal Circuit Court or Family Court of Australia. Whilst we cannot say with any certainty what the Courts view will be on the COVID vaccination, we can review how the courts have approached vaccination issues in the past.

As with all issues concerning children, it is the best interests of the child that is the paramount consideration. In previous cases regarding vaccination, the Courts have shown a tendency to follow orthodox medical opinion and have stated 'the risk of harm as a result of traditional vaccination is not so high as to outweigh the risk of infection'. We note that these decisions are regarding vaccinations that have a long-standing history of use.

That being said, the Court is always guided by the evidence which is presented to them, whether that be a medical opinion or the opinion of another expert in a related field. It is unknown what information the Court will have at its disposal when it is asked to decide whether a child should be administered the new COVID vaccine.

Whilst it is the individual child's best interest which is the paramount consideration, one case has previously considered the public benefit of a child being immunised. In Rilak & Tsocas [2015] FamCA 1235 , Justice Loughnan thought that the public benefit of immunisation could be a consideration under section 60CC(3)(m) of the Family Law Act 1975 (Cth) which states 'any other fact or circumstance that the Court thinks relevant'. He stated, "In my view, the public benefit to other individuals are factors arguing for the orders sought by the father" (the father sought to have the child immunised). The public benefit of immunisation against COVID19 is certainly a factor that may weigh heavily on any judge who is asked to make a determination relating to the COVID vaccine.

Whilst in the past the Courts have commonly determined in favor of immunisation, it is yet to be seen whether this will be the case for the COVID vaccine and we will wait to hear from the Courts as to their view on the matter.

Our experienced team is here to help with all your Family Law enquiries on 1800 650 656.

Lauren Ryan | Family Law Solicitor