Vaccine or no Vaccine?

Vaccine or no Vaccine?
17 Jan

Vaccine or no Vaccine?

Children Vaccination Update in Australia

Children Vaccination

In the midst of the global Coronavirus pandemic, the Australian Government recently announced that children aged 5 to 11 are now eligible to receive the Covid-19 vaccinations, should their parents wish for them to. But what happens if you and your former partner cannot agree on whether or not to vaccinate your child? 

The Covid-19 vaccinations are administered in 2 doses, given 8 weeks apart. The time between the vaccinations can be reduced to 3 weeks if special circumstances permit. The purpose of the Covid-19 vaccinations are to reduce the severity of the illness if contracted. They cannot prevent the illness and some side effects can be experienced from the vaccination itself. 

Parental Responsibility on Children Vaccination

Vaccinations can be a topical parenting issue for a number of reasons. Under the Family Law Act 1975 (Commonwealth) making serious decisions about a child’s health falls within the realm of parental responsibility.

In most cases, parents will have what is typically referred to as Equal Shared Parental Responsibility – which means both parents get a say in determining any major medical decisions that may be required for their child. Under the legislation, parents must consult with each other and make a genuine effort and attempt to reach an agreement in relation to any major long-term issues in dispute concerning their joint parental responsibility (See section 61da(1) ).  

In facilitating such discussions, parents are encouraged to seek medical advice from their child’s General Practitioner or Pediatrician specific to the circumstances of that child and the vaccination in question.

Once the information has been obtained, parents might like to consider attending Mediation or some form of alternative dispute resolution (rather than going straight to Court as this is a requirement anyway) to talk further about their concerns with the other party with a neutral third party mediator facilitating such discussions. 

If ultimately the parents cannot agree on whether or not to vaccinate their child, then an Application can be made by either parent (provided a Section 60I Mediation Certificate has been obtained or a special circumstance exemption is sought) to the Federal Circuit Court and Family Court of Australia seeking a parenting Order for their child/ren to be vaccinated or not. 

The Court has, in the past, made an Order requiring a child to be vaccinated and immunised. (See cases of Mains (2011) and Covington (2021). 

Federal court of australia 123The first Case of Mains v Redden involved a Mother who objected to the child receiving certain immunisations that the Father wished for the child to receive after a consideration of side effects (which she herself experienced as a child). 

The Court ultimately found that they had the power to make any parenting Order it believed to be appropriate in the circumstances of the case having regard to the best interests of the child in question. The Court supported that the child be immunised at the first instance of the matter.

This was later reaffirmed by the judgment in the High Court case of Covington and Covington where the Mother appealed against Orders made by the Court for the child to receive the vaccination and immunization arguing that the Court only has the power to make a binding parenting Order with the mutual consent of both parents otherwise this breached section 51 of the Constitution. The Court did not accept the Mother’s argument and the original decision was ultimately upheld. 

If you and your spouse have different views the issues of Children Vaccination and immunisations, contact the team of Brisbane Family Law at James Noble Law today to arrange a free, no-obligation 20 minute consultation to discuss this issue and your particular circumstances further. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane.

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