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To Vax or Not to Vax

Navigating your parental obligations in relation to vaccinating your children against COVID-19

The onset of the COVID19 pandemic has presented an unparalleled global challenge to society, the economy and the public health sector.  The pandemic has also created a range of new challenges for separated families, causing an array of family law disputes to surface. The tremendous impact of the Covid-19 pandemic to Australia’s family law system has led the Federal Circuit and Family Court of Australia to establish a special court list for dealing exclusively with COVID19 related family law disputes.

As the COVID19 vaccine becomes available to children, disagreements regarding whether parents should or should not immunise their children against COVID19 are beginning to emerge. Undoubtedly, a parent’s decision to vaccinate their child is complex in circumstances where one parent is wanting to vaccinate but the other parent is opposed. These disagreements often leave parents questioning whether they need the consent of the other party to vaccinate their child, and what they can do in instances where both parents are unable to reach an agreement.

What does the law say?

Whilst the Family Law Act 1975 (Cth) (the Act) does not exactly provide a roadmap setting out what families can and cannot do if they find themselves in this situation, the Act does provide a starting point in respect to parents’ obligations.

Under the Act, there is a presumption that parents have equal shared parental responsibility. This presumption will apply regardless of any changes to the parents’ relationship and until a court Order is made varying this presumption.

Parental responsibility is defined in the Act as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Equal shared parental responsibly is a term that relates to major long-term decisions concerning children, including but not limited to medical, education and religion related decisions.  If the presumption of equal shared parental responsibility applies, then parents are required to consult each other about all major long-term decisions regarding the children and they are to make a genuine effort to reach an agreement.

In terms of the relevance of equal shared parental responsibly and vaccinating children against COVID19, decisions regarding immunisations are captured under parental responsibility as these are considered major long-term decisions relevant to the child’s health.  As such, a parent’s decision to vaccinate their children is one which both parents have an obligation to consult one another about.  Therefore, if the presumption of equal shared parental responsibility applies, one parent should not unilaterally decide to vaccinate their child without the consent of the other parent.

If a Court order for equal shared parental responsibility is in place, then a parent who unilaterally vaccinates their child without the other parent’s consent may well find themselves in breach of a Court Order and open themselves up to the risk of a contravention application being made against them in the Court.

Failure to reach an agreement

If parents are unable to reach an agreement, they can attend mediation in a genuine attempt to negotiate a potential outcome that both parents agree to.  Mediation is a form of alternative dispute resolution and can be an effective way to resolve outstanding parenting issues with the assistance of a trained and experienced mediator.

Going to Court

If parents are unable to reach an agreement through alternative dispute resolution, then a parent can file an Application to the Federal Circuit and Family Court of Australia (Division 2).  There is also a National COVID-19 List which applies to urgent or priority family law applications filed in the Federal Circuit and Family Court of Australia which are filed as a direct result of, or in significant connection to, COVID-19.  This may be relevant for a person who is in a parenting dispute relating to COVID-19 vaccinations in certain circumstances.

If a person files an Application in the COVID-19 list and the Application meets the COVID-19 criteria, then the matter will likely be given a first return date within three business days if the matter is assessed as urgent, or otherwise within seven business days if the matter is a priority, but, not urgent.

The Federal Circuit and Family Court of Australia (Division 1) and Federal Circuit and Family Court of Australia (Division 2) has the power to make orders in relation to vaccinating children (both in the usual Court system applied for parenting matters and part of the COVID-19 List).  In making such determination, the Court will consider what is in the best interests of the child and relevant factors under the Act.

Seek legal advice

If you and your family are experiencing a dispute in relation to vaccinating your children, or arrangements for your children generally, contact us today to make an appointment with Shannon Daykin, Legal Practitioner Director and Accredited Family Law Specialist, to obtain advice about your situation, your obligations and the options available to you.  We can assist you to navigate a road map on the best options to suit your needs and the needs of your family.

Shannon was named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide.  We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.

We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3852 5490 to make an appointment for an initial consultation.