In Western Australia, children aged 12 and over are now eligible for COVID-19 vaccinations. The Therapeutic Goods Administration has provisionally approved the use of both the Pfizer and Moderna vaccines for individuals in this age cohort. However, the COVID-19 pandemic has caused a widening range of family law disputes, such that the Federal Circuit and Family Court of Australia have established a dedicated court list for dealing with COVID-19 related family law disputes. One of the main disputes that can make an applicant eligible for the COVID-19 list is a disagreement in relation to children being vaccinated against COVID-19.
The law around shared parenting arrangements
Unless a court order has been made stating otherwise, both parents of a child are presumed to have equal shared parental responsibility. Parental responsibility is the power parents have to make decisions regarding the long term, care, welfare and development of their child. These decisions include those related to health and medical issues, such as the question of vaccination. Parents with sole parental responsibility generally have the authority to make such decisions on their own, without consulting the other parent. However, where there is equal shared parental responsibility, parties have an obligation to confer and make a genuine effort to come to a joint decision about such matters.
So what happens when parents disagree?
Parties must make a genuine effort to resolve any issues that arise in relation to parental responsibility. Ideally, parents should confer and be able to reach a decision together on whether their child is vaccinated. If parties cannot agree on their own, they will generally be required to attend Family Dispute Resolution to make further attempts at reaching a resolution. If parties cannot agree, an application may need to be made to the Family Court for a judicial determination as to whether the child is vaccinated.
Family Court and vaccinations
The Federal Circuit and Family Court of Australia recently had to decide whether it was authorized to order a child be vaccinated in the case of Covington v Covington (2021) FLC 94-014. Pursuant to section 65 of the Family Law Act 1975 (which applies to parents who were married) and section 37 of the Family Court Act 1997 (which applies to parents who were in a de facto relationship), a court may make any parenting order it considers appropriate in the circumstances of the case. This power was held by the court to include vaccination. The only requirement on the court is that, when deciding to make such an order and all other parenting orders, the court’s primary concern must be whether such an order is in the best interests of the child.
After the Family Court reached this conclusion in Covington, the applicant then applied for special leave to appeal the decision to the High Court of Australia. The High Court dismissed the application for special leave on 9 September 2021, effectively concluding the matter.
It is common for orders to be made that a child be vaccinated as per the National Immunisation Program Schedule, particularly in cases where there is no evidence the child in question has any special medical requirements that would result in detrimental side-effects. For example, in the case of Manis & Reddin (2011) FLC 93-478, orders were made for the child to be vaccinated in accordance with Department of Health guidelines, including against diseases such as measles, mumps rubella, tetanus, and diphtheria. Other orders may be made where the child has received vaccination recommendations from a medical specialist, such as the case of Duke-Randall & Randall  FamCA 126, where the Court ordered the children be vaccinated as recommended by their medical specialist.
Ultimately, the Family Court has the power to order vaccinations, regardless of parental consent. Whether the court will actually make such an order will depend on the best interests of the child, with any particular needs or circumstances of the child taken into account.
Older children and the vaccine
As children get older, parents may find they have less input regarding their medical care. Currently in WA, children aged 12-15 are unable to book vaccines in a state-run clinic without the consent of a parent or legal guardian. However, children aged 16 and over can book in for a vaccine themselves and will be assessed by a health professional at their vaccine appointment. If the health professional determines they have sufficient intellectual and emotional capacity to consent, then the child can receive their vaccine without requiring the consent of a parent or legal guardian. Most children aged 16 and over are able to consent to medical treatment unless there are other factors which limit their capacity. Therefore, a parent’s decision on vaccination may have little practical impact if the child decides to provide or withhold their own consent.
If you or anyone you know is seeking advice in relation to vaccinating their children, come and see one of our lawyers at Carr & Co. We understand that shared parenting during a pandemic is complex and can be a stressful time, so please contact us to arrange an appointment or call us on ph 9322 8000