Update: Vaccination Disputes in the Family Court

Since we last published our article The Great Debate – Vaccinations in the Family Court, significant medical, legal and ethical questions have arisen following the successful development and now implementation of the various COVID-19 vaccinations.

Whilst disagreement about vaccination programs for children amongst separated parents is hardly a new topic of discussion, family lawyers have noticed a significant increase of disputes focused primarily on the COVID-19 vaccinations, especially since the Therapeutic Goods Association endorsed the use of vaccines for children from 5 years of age.

The recent case of Covington v Covington (2021) FLC 94-014 concerned the vaccination of a 10 year old child, and whilst the case does not specifically refer to the COVID-19 vaccinations, the Court is likely to treat the new vaccinations in the same manner as all cases concerning immunisation disputes between parents. In November 2020, the parties in this case agreed to Final Parenting Orders which included that the child attend upon a paediatrician and receive a vaccination program, with both parties permitted to attend the child’s vaccinations. In December 2020, on the application of the Father, Orders were made which prevented the Mother’s attendance at the vaccinations appointments. The Mother subsequently appealed these Orders on the basis that she withdrew her consent to the Orders insofar as they relate to vaccinations.

The basis of the Mother’s argument was that, in the absence of her consent, the Australian Constitution forbade compulsory vaccination (relying on s 51(xxiiiA) which deals with civil conscription) and that any doctor administering the vaccination to her child would be assaulting the child. The Full Court held that this assertion was made without reference to authority, and that:

“The Family Court of Australia has the jurisdiction to make an order providing for a child to be vaccinated (Mains & Redden [2011] FamCAFC 184, and if necessary see Re Kelvin[2017] FamCAFC 258; (2017) FLC 93-809).That jurisdiction is not dependent on whether or not the parties consent. Section 65 of the Family Law Act 1975 (Cth) (‘the Act’) provides that in proceedings for a parenting order a court may make such parenting order as it thinks proper (alternatively or additionally see s 67ZC of that Act), and that order can be validly made even if there is no consent.

In this case, consent was given and the order was made on that basis. The fact that the mother sought to subsequently withdraw her consent does not in any way invalidate the order, or change its binding effect. The order stands as an order of the Court for which it had the jurisdiction to make.”

Accordingly, the Full Court dismissed the Mother’s appeal and ordered that she pay the Father’s costs fixed in the sum of $3,287.

This recent case emphasises that in cases concerning vaccinations, regard will be given to the best interests of the children, and the Court has to date favoured medical evidence, and is likely to make orders that children be vaccinated in accordance with the National Immunisation Program Schedule. There are, of course, exceptions to the rule and we suggest that you engage with a specialist family law advisor to discuss same should your child have specific requirements, or should you be in dispute with a further parent as to vaccination issues.

For those in dispute with their former partner about the vaccination status of their child, we recommend that you seek legal advice about this issue to move through all the relevant facts and circumstances.

Please contact Kerr Fels on (08) 6381 9080 to make an appointment for specific advice about your situation.

The information in this article is of a general nature and should not be relied upon for your family law matter.

About KERR FELS – Divorce and Family Lawyers

Kerr Fels is a boutique law firm practising exclusively in family and divorce law. We offer experience in settling complex financial matters arising from separation involving business entities, trusts and large asset pools, in addition to negotiating simple divorces. We are conveniently located in the Perth CBD.

Our philosophy is to provide client-focused cost effective, efficient and pragmatic legal advice.  

Don’t hesitate to contact us if you need advice about any aspect of separation or divorce.

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