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Insights

Since the outbreak of COVID-19 there has been a significant increase in family law disputes between parents in relation to the vaccination status of children.

The recent case of Makinen & Taube [2021] FCCA 1878 dealt with a mother and father of two children aged 12 and 8 years old, who held opposing views in relation to the COVID-19 vaccine.

There is a presumption under the Family Law Act 1975 that both parents have ‘equal shared parental responsibility’ requiring parents to consult with each other and make a genuine effort to come to a joint decision about the major long-term decisions in respect of the care, wel­fare and devel­op­ment of the child/​ren. Courts can order that one parent have ‘sole parental responsibility’ for all major long-term decisions or for particular issues. Parental responsibility includes making deci­sions in rela­tion to vac­ci­na­tions and immunisations for children.

In this case the par­ties had Orders that provided equal shared parental respon­si­bil­i­ty for the parents. The father however sought to have sole parental responsibility for decisions regarding immunisations and vaccinations for the two children, as he wanted the children to be vaccinated in accor­dance with the State and Fed­er­al Gov­ern­ment health rec­om­men­dations.

The mother was opposed to the children receiving any vaccination and sought an injunctive order that the father not vaccinate the children. The mother submitted that the children were at risk of adverse reactions. The mother’s submissions were based upon literature she had read in relation to harmful outcomes to children from receiving vaccinations.

An Inde­pen­dent Chil­dren’s Lawyer (ICL) was appointed by the Court to act for the two chil­dren. The ICL relied upon the recommendations of the Family Consultant who reiterated the Gov­ern­ment health rec­om­men­da­tions that “non-vac­ci­nat­ed chil­dren (and adults) can be exclud­ed from ser­vices and trav­el oppor­tu­ni­ties due to the risk they pose to oth­er peo­ple”.

The Court’s findings were that both the mother and father had the children’s best interests in mind, however that it was highly improbable that the parents could reach a joint decision about giving the children any particular vaccine at any particular time.

The court commented that ​“qual­i­fied doc­tors owe pro­fes­sion­al duties of care that apply to giv­ing vac­cines as a form of treat­ment” and further held that the “the father …. is likely to be more compliant with recommendations by a doctor or medical professional.”

The Court therefore deter­mined that Orders be made for the father to have sole parental respon­si­bil­i­ty regarding the chil­dren’s vaccinations and immu­ni­sa­tions. The Orders required the father’s deci­sion-mak­ing in respect of vac­ci­na­tions to be ​“in accor­dance with the Nation­al Immu­ni­sa­tion Pro­gram or as rec­om­mend­ed by the children’s gen­er­al prac­ti­tion­er.”

When mak­ing deci­sions in relation to children, this case highlights that the Court’s para­mount con­sid­er­a­tion is the best inter­ests of the child/ren.

This article was co-authored by Law Cadet Karsandra Mantis.