Introduction
Immunisation disputes have been a feature of family law for some time, however increasingly so amidst the landscape of the COVID-19 pandemic.
Under the Family Law Act, the presumption of “equal shared parental responsibility” exists, i.e. the law presumes that a child’s parents equally share in making major decisions with a long-term impact on the child’s life, such as decisions pertaining to health and education. When parents do not agree on an issue and cannot resolve their differences through negotiation or mediation, the Court exercises its jurisdiction to resolve the dispute.
A 2017 study by Miranda Kaye noted that between 2002 – 2017 there were 13 cases decided by the Court which featured immunisation disputes as an issue. Of the 13, only two did not result in the Court making Orders in favour of vaccinations; and of these one resulted in consent orders being made in favour of the vaccination and the other was due to a specific set of facts.
While this data predated the advent of COVID-19, we can see that the Court has adopted a firm stance in favour of vaccinations.
How does the Court make decisions?
The Court has the power to make decisions to compel child vaccination in two ways:
- The Court can make a Parenting Order which grants one parent sole parental responsibility with respect to the issue of vaccines. This means that the Court has chosen only one parent to make the decision regarding whether the child should be vaccinated where the court prefers that parent’s approach to vaccination; or
- The Court can determine the issue and make an Order for the child to be vaccinated.
Aside from considering the conventional medical advice, the Court takes into account the following factors in making decisions about vaccinations:
- Social factors such as potential exclusion from childcare facilities and the detrimental impact of reduced socialisation on young children;
- Family and community connections – for example, an unvaccinated child may not be able to spend time with elderly family members or those who are immunocompromised or otherwise vulnerable;
- Restrictions on travel and activities; and
- The child’s opinion (if they are old enough).
Recent Case Law
Some recent cases have illuminated the Court’s approach:
LAMOS & RADIN (No 2) [2022] FedCFamC2F 167 (18 February 2022)
In this case, we can see the age of the child is a factor. The Father made an Application to the Court for the parties’ two children aged 16 and 11 to be vaccinated against COVID-19. The Mother was against the vaccination. The Father already had sole parental responsibility for the 11-year-old, who lived with him. The 16-year-old lived with the Mother and did not spend much time with the Father. The issue for determination by the Court was therefore to do with the immunisation of the older child. Both parties relied on medical evidence such as the publicly available factsheets from various government bodies and health advisory boards. The Court decided that while there is some risk inherent in receiving the COVID-19 vaccine, according to the medical literature the benefits outweighed the risks to the individual. The Court also made mention of community benefits such as contributing to the protection of the more vulnerable members of society. The Court made an order for the Father to make arrangements for the 16-year-old to be vaccinated in the absence of the Mother’s consent, as long as the child consented.
KARCHER & LACOSS [2022] FedCFamC2F 281 (3 March 2022)
In this case, the Court again made Orders favouring vaccination. The Father made an Application to the Court for sole parental responsibility for the issue of COVID vaccinations for the parties’ 11-year-old child. The Mother opposed the vaccinations, however the Father was the primary carer for the child as the Mother resided in a psychiatric facility. Both parties presented limited evidence, however the Father did rely on evidence from the child’s GP to support his case. In the absence of comprehensive expert evidence the Court relied on section 144 of the Evidence Act, allowing the Court to take “judicial notice” of facts deemed to be common knowledge about the transmission and risk presented by the COVID-19 virus within the context of a pandemic. This case demonstrates the Court’s acceptance of the prevailing medical advice in relation to COVID-19 vaccinations.
RUSENA & RUSENA [2022] FedCFamC2F 472 (14 April 2022)
As has been demonstrated above, the Court is willing to make Orders in favour of vaccination based on evidence of a more general nature. In this case, the parent against immunisation adduced high-level expert evidence, however was still unsuccessful. The Mother applied to the Court to restrain the Father from facilitating their children’s COVID-19 vaccinations. The Mother relied on the expert evidence of a Professor with more than 20 years of experience in vaccine research, who has been actively involved in the development of several novel vaccines including a version of a COVID-19 vaccine. In contrast, the Father focussed on the benefits of “herd immunity” and adduced expert evidence from a doctor to the effect that the vaccine rarely causes detrimental side effects in children. The Court made Orders granting the Father sole parental responsibility with respect to the specific issue of the COVID vaccines.
Conclusion
We can see that the Court has adopted an overwhelmingly pro-vaccine approach, however the Court will undertake a risk analysis of the particular circumstances of each child and case.