Parents will need to decide if their child will receive a COVID-19 vaccination after the COVID-19 vaccination program for children between the ages of 5 and 11 commenced on 10 January 2022.
This is a decision that must be made in accordance with their parental responsibility - which means all the powers, responsibilities, and authority that parents have concerning a child by law. If there is an Order for parents to share parental responsibility, that means the parents must jointly make decisions about major long-term issues after consulting with each other. Examples of major long-term issues include decisions about education, health (including vaccinations), and their cultural or religious upbringing.
If you and your ex share parental responsibility for your children, then vaccination will need to be a decision agreed to by both of you - unless the Orders specifically provides who is to have parental responsibility for vaccinations.
So, what happens if we can't agree?
If you and the other parent cannot agree, then you must participate in Family Dispute Resolution (“FDR”). If no agreement is reached at FDR, then you must make an application to the Court for them to determine whether it is in the best interests of the children for you to be solely responsible for decisions relating to vaccinations.
Whether or not you can vaccinate your children without the other parent’s agreement depends on whether you have a parenting plan or parenting Orders and what that parenting plan or Orders say. If you decide to vaccinate your child without the other parent’s agreement and there is an Order for equal shared parental responsibility, then you could be found to be in Contravention of Court Orders.
For more information on how to apply for a parenting Order from the Court, check out our step-by-step guide here.
application to the court – the decision in Makinen & Taube
The Court’s power to make decisions regarding vaccination for children was considered by Judge Taglieri in the recent decision of Makinen & Taube. The Court was asked to decide whether two children aged 12 and 8 should receive vaccinations as the parents could not agree.
The Mother was opposed to the children being vaccinated and wanted an order restraining the Father from vaccinating the children. The Mother considered it was not in the children’s best interests for them to be vaccinated because vaccines may cause untreatable harm, whereas the diseases targeted by vaccines were treatable or had been eradicated in Australia.
The Father wanted sole decision-making for immunisation and vaccination of the children. The Father considered it was in the best interests of the children to receive vaccinations as recommended by their treating general practitioner. The independent children’s lawyer agreed with the Father.
The Court’s findings
The Court found it was in the best interests of the children to grant the Father sole parental responsibility with respect to decisions relating to the children’s vaccination and immunisation because:
- The Father was the parent more likely to accept and act upon expert medical advice, whereas the Mother held entrenched views against vaccination and would likely push back or reject having the children vaccinated, even if it was recommended by a medical professional.
- The capacity to have the children lawfully vaccinated if vaccination is recommended by a medical professional would be protective of the children’s physical and emotional health.
- It was not in the best interests of the children to deny them from receiving vaccination that will prevent or reduce suffering from a disease that has been demonstrated to be avoidable from vaccination.
- It was necessary to make a specific order regarding parental responsibility for vaccinations because if no order were made, then:
- The Father would be at risk of exposing himself to potential breaches of the equal shared parental responsibility order, and the Mother may bring contravention applications against the Father; or
- The Father would be compelled to bring further proceedings in the future against the Mother to have the children vaccinated, during which time the children may be at risk.
Orders made by the Court
The Court determined it was in the children’s best interests to order the Father to ensure the children receive any vaccination recommended by their treating general practitioner. The Court also granted the Father sole parental responsibility for all decisions relating to the children’s immunisation and vaccination, with the Father to be obliged to provide the Mother 14 days’ notice of any appointments to vaccinate the children so she may have the opportunity to provide input to the children’s treating practitioner.
We can help!
The Family Law Team at McInnes Wilson Lawyers is here to help if you and your ex cannot agree on whether to vaccinate your children. We can provide advice regarding making an application to the Court for sole parental responsibility for decisions about vaccinations or provide you with advice regarding whether you are required to jointly make the decision to vaccinate your children. Please fill out the enquiry form below for an obligation-free appointment.
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