From a family law perspective, it has raised (in some cases) a divisive issue of whether parents should vaccinate their children.
At the time of writing this article, COVID-19 vaccination is not mandatory, which means parents and guardians who have shared parental responsibility for a child can decide what to do.
Whilst you and your ex-partner may be on the same page regarding many other matters, what happens when you have opposing views regarding vaccination?
Presumption of Equal Shared Parental Responsibility
The Family Law Act (and Family Court Act for de facto couples in Western Australia) applies a presumption of equal shared parental responsibility, unless there are circumstances that dictate otherwise (for example, the existence of family violence).
This means that parents must consult each other and agree on decisions about major long-term issues such as education, health, religion, culture, and moving children away from a parent that may make it significantly more difficult for the children to spend time with that parent.
Major decisions regarding medical procedures and decisions regarding vaccination of children also fall within the scope of parental responsibility.
Unless there is a Family Court order for sole parental responsibility, parents are expected to genuinely consult and agree regarding a child’s vaccination, including other major medical procedures.
It may be useful to consult with your child’s general practitioner to discuss any issues or concerns you may have.
If you cannot jointly agree, then you should obtain independent legal advice about your options, which will likely involve participation in family dispute resolution (unless there are circumstances that prevent this occurring).
If the dispute cannot be resolved through legal correspondence or family dispute resolution, it may be necessary to file an application in the Family Court to secure orders for the children’s vaccination, or alternatively, orders that prevent the other parent from vaccinating the children.
The Court’s Approach
When making an order, the court must consider a child’s best interests as the paramount consideration.
When adjudicating disputes regarding medical procedures and vaccination, the court commonly relies upon independent expert evidence from specialist medical practitioners.
For example, evidence can be secured from the Specialist Vaccination Clinic at Perth Children’s Hospital.
The Court will not rely upon evidence from either parent that is hearsay, anecdotal or opinion.
As you would expect, the Court will (in most cases) make orders that are consistent with independent specialist medical advice.
Current case law supports orders being made for children to be vaccinated unless there is independent medical evidence (supported by a current assessment from a specialist medical practitioner) that the child is likely to suffer a significant medical adverse reaction.
In some cases, the court will make orders for one parent to have sole parental responsibility in relation to specific matters such as vaccination, to ensure there are no difficulties in implementing orders made.
Case Study
Trott & Brenton [2022] FedCFamC1F 366
In this case, the mother sought orders for her child to be vaccinated with the COVID-19 Pfizer vaccine, in accordance with the State Government guidelines and recommendations.
The mother’s position was that vaccinating the child would reduce the child’s risk of contracting COVID-19, or that if the child did contract COVID-19, they would have reduced symptoms and risks of a significant adverse outcome.
The father, who was not opposed to vaccination per se, did not believe that the child should be vaccinated against COVID-19 until there was further and better information about any potential long-term adverse side-effects of the vaccine.
The mother led expert evidence from a general practitioner, who gave evidence by reference to published peer-reviewed data and his own medical experience.
The doctor advised that the risks to the child were outweighed by the benefits of being vaccinated.
The Court only gave weight to the doctor’s opinion in relation to the medical risks and benefits of the child receiving the vaccination, rather than the personal beliefs and opinions of the parents.
The Court acknowledged that it was not possible to entirely exclude the risk of serious adverse reaction or long-term effects, but ultimately decided that the medical benefits to the child from receiving the vaccine as soon as possible outweighed the medical risks.
Orders were made for the mother to have sole parental responsibility for the child on the sole issue of vaccination against COVID-19, enabling her to vaccinate the child without the father’s consent.
