Vaccination continues to be a hotly contested topic in family law given the ongoing roll out of the COVID-19 vaccines. Despite the push for vaccinations in the community (when they are available), some parents will still face the situation where there is disagreement over vaccinating the child of the relationship and then must confront the age old question, “What do I do?".
In 2020, the Courts established a COVID-19 List specifically to hear urgent and priority parenting and property matters nationally where issues arise directly as a result of COVID-19.
The Courts have maintained this List in 2021 given the continuing need for parties in family law matters to seek urgent decisions due to the unpredictability of COVID-19, including possibly medical orders or orders for vaccinations in parenting cases.
Do the Courts (Family Court and Federal Circuit Court of Australia) have the power to make orders for vaccinations?
The short answer is “yes”, in the event of disagreement, the Courts do have the power to make orders requiring a child to be immunised or vaccinated, provided that these orders are in the child’s “best interests”.
Therefore a party may need to make an urgent application to the Court seeking orders for a child to be vaccinated or immunised in the event the other parent does not agree to it taking place.
There are a number of factors the Court must consider to decide whether a parenting order is in a child’s best interests, including the need to protect a child from harm and the attitude towards the child and to the responsibilities to parenthood demonstrated by each parent. This might include a parent’s responsibility to ensure their child is healthy and their attitude towards medical recommendations made by the child’s doctor.
In deciding whether to make orders compelling a parent to vaccinate a child, the Court needs to consider whether vaccinating the child is medically in the child’s best interests including whether to vaccinate a child to protect them from COVID-19. The Court will always analyse the facts and circumstances of each individual case before ultimately making a decision.
What is the process if parents cannot agree on a COVID-19 related parenting issue?
If a parenting or medical issue is connected to COVID-19, including vaccination, then a parent may have the option to make an application to the Court in the COVID-19 List. The matter must also be of an urgent nature.
A simpler process is required if parties seek orders in the COVID-19 List. For parenting matters, the applicant will need to send to the Court by email:
- The Application setting out the Orders they are seeking;
- A supporting affidavit of no more than 6 pages setting the background of the matter; and
- A cover letter setting out why the matter is urgent.
In matters seeking an order for a COVID-19 vaccination and other medical orders, medical evidence in support of the medical treatment, including evidence from the child’s treating medical practitioner, should also be provided to the Court.
While it is always recommended that parents seek legal advice for their specific concerns, it is important for parents to also be aware that the Courts have made changes in response to the pandemic and the continuing challenges associated with COVID-19.
This includes making it easier for parties to seek urgent property and parenting orders if and when they need to.
How we can help
Russell Kennedy are pleased to offer expertise in the area of family law from our Sydney and Melbourne offices. We have Accredited specialists in Sydney and Melbourne who are able to assist with any enquiry you may have. If your enquiry relates to a matter in Sydney, please contact our national head of family law Amy Jenkins. If your enquiry relates to a matter in Melbourne, please contact Nicky Neville-Jones, Special Counsel and Accredited Specialist in Family Law.