The great vaccination debate: a family lawyer’s perspective

The great vaccination debate: a family lawyer’s perspective

Parents Rights in Vaccinating the kids - family lawyer sydney

Whether or not to vaccinate a child or children of the marriage/de facto relationship has been a topical question amongst separated parents for decades.

This debate has in recent times gained more traction in light of the Covid-19 pandemic and Covid-19 vaccinations now being made available for children.

Do I have the right to vaccinate my child?

So where do disagreeing parents stand in the vaccination debate: what are their rights, responsibilities and obligations?

The decision on whether or not to vaccinate a child falls broadly into decisions made in relation to a child’s health.

A parent’s right to make such decisions depends on the type of parental responsibility they have for their child/children.

Parental responsibility refers to ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’ (see section 61B of the Family Law Act 1975 (Cth).

If there are not any Court orders that have been made in relation to parental responsibility then pursuant to section 61C of the Family Law Act 1975 (Cth) both parents have joint parental responsibility by law, although the practical issues of whether this is exercised jointly or not is a separate question.

Joint parental responsibility means both parents have the responsibility to make a decision about the child’s vaccination. If parents who have joint parental responsibility disagree on this issue then you should get legal advice as soon as possible.

If a Court has made an order for parental responsibility then the Court would have either made an order for equal shared parental responsibility between both parents or sole parental responsibility in favour of one parent.

An order for sole parental responsibility permits the parent with the parental responsibility to solely make major long-term decisions affecting the care, welfare and development of the child. This will include deciding whether or not the child will be vaccinated.

Conversely, an order for equal shared parental responsibility requires both parents to make a consult with each other and make a genuine attempt to make a joint decision in relation to any major long-term decisions including vaccinations. If parents with an order for equal shared parental responsibility cannot agree about vaccinations, then they should get legal advice as soon as possible.

What will a Court do if parents cannot agree on the child’s vaccination?

The Federal Circuit and Family Court of Australia has the power to make decisions in relation to children’s vaccinations.

Recently, in the case of Covington & Covington (2021) HCASL 179, the High Court of Australia confirmed a decision made by the Full Court of the Family Court of Australia (as it then was) that the Courts have authority to make an order for the vaccination of a child in circumstances where parents disagree. Although this case did not relate to the Covid-19 vaccine, the decision outlined the approach of the Court, which will likely extend to Covid-19 vaccinations.

In summary, this case confirmed the following:

  • The Court’s paramount consideration is what is in the best interests of the child.
  • The Federal Circuit and Family Court of Australia has the jurisdiction to make an order providing for a child to be vaccinated.
  • The court has the power to make such parenting orders as it thinks proper, and that order can be validly made even if there is no consent between the parents.

In this case the High Court confirmed the earlier decision of the Full Court that the Court had the jurisdiction to order a child be vaccinated.

The Court has also devised a national specialist list to deal with all matters relating to covid-19 known as the National Covid-19 List.  This list has been designed to deal with matters relating to covid-19 that are of an urgent and priority nature.  Covid-19 vaccinations fall within this category.  Once you have commenced proceedings under this list and if you have satisfied with all the necessary criteria then it is likely you will get your first Court date within 3 -7 business days depending on the urgency of your case.

What should parents (or those with parental responsibility) who cannot agree on their child’s vaccination do?

If you are in this situation, we encourage you to contact our office as soon as possible.

Our experienced lawyers can discuss this issue with you in greater detail and suggest various options for you to explore so that you can try and achieve a quick, timely and amicable resolution to this issue.

Our lawyers will discuss various dispute resolution mechanisms with you such as forms of negotiation and mediation with you and also explain the Court process to you should it be required.


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