Can a parent get a child vaccinated if the other parent disagrees?
COVID-19 has brought with it its share of challenges for Australian parents. Now added to that list is the decision of when and whether to vaccinate.
In recent months and coinciding with the availability of the Covid-19 vaccination to children aged 5 and over, the Federal Circuit and Family Court of Australia has seen an influx of cases involving parents who cannot agree on whether their child should be vaccinated.
“All the duties, powers, responsibilities, and authority which, by law, parents have in relation to children.” – the Family Law Act 1975
There is a presumption of joint or equal parental responsibility for all major decisions regarding the care, welfare and development of the child (section 61DA, the Family Law Act 1975).
This authority extends to health related decisions such as when and whether to vaccinate a child against any disease including Covid-19. Unless or until a court has made the decision to vary parental responsibility, a child’s parents and are deemed to have parental responsibility for their child and all decisions rest or should rest both the parents.
Parental responsibility enables parents to made decisions about matters including their child’s:
It will come as no surprise that parents do not always agree on these decisions. These decisions can be more difficult for separated parents.
Equal shared parental responsibility requires parents to consult with each other and reach agreement regarding major decisions for their child. If parents cannot agree then a Court may decide.
Will the Court order a child to be vaccinated if one parent doesn’t consent?
The Family Law Act 1975 requires the Court to make all decisions in parenting matters based on the best interests of the child. This is a highly discretionary exercise based on the individual facts of any given case.
Court decisions regarding vaccination including Mains and Redden (2011) and more recently Covington and Covington in 2021 although both containing different facts show that the Court does have power to order a child to be vaccinated, even in the absence of consent from one of the parents:
‘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.’
The Covid-19 Landscape
Although Covington and Mains were not directly related to COVID-19 vaccination, they are relevant as they confirm that the Court does have jurisdiction to order vaccination regardless of parental consent.
While it is clear the Court does have such a power, even if a parent opposes vaccination, it should be noted that this is not a power that the Court will exercise arbitrarily or flippantly.
In a recent unreported decision, a Melbourne Registrar applied a unique approach to parental responsibility on an interim basis.
The child in this case had some newly diagnosed medical conditions. Because of this, one of the parents was opposed to the child receiving the Covid-19 vaccination while the other parent considered vaccination against covid-19 essential.
The parents each produced medical reports from several doctors who had assessed the child and provided their opinion. The majority consensus from the various reports was that the child should be vaccinated. The most cautious of the doctors who supported vaccination recommended that the child receive the vaccination but not for a period of a few months to allow the child’s newly diagnosed condition to stabilise.
The Registrar was unable to make an order that the child receive a vaccination as this would be a final order and outside the scope of a Registrar’s powers. Instead, he ordered that the parent who supported vaccinating the child (as was the majority consensus of the doctors) be given sole parental responsibility in relation to decisions regarding the child’s health.
He caveated this though mirroring the advice of the most conservative doctor in the majority by ordering that that parent with sole parental responsibility on medical decisions not vaccinate the child for a minimum period of 3 months.
Need further help?
If vaccinating your child for Covid-19 or against any other illness has become a topic of contention in your family, or if you think it might become one, contact one of our friendly and knowledgeable lawyers to discuss your options.
Freeman Family Law has been assisting clients for over 30 years on matters involving divorce or separation, complex financial and property issues, as well as advice on parenting and wills & estates. Book an appointment with an Accredited Family Law Specialist online or at one of our offices in Yarraville, South Melbourne, Caroline Springs, Essendon or Mornington.Enquire Now
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