Separated parents who cannot agree on the vaccination status of their children

Separated parents who cannot agree on the vaccination status of their children

Since COVID-19 reached Australia lawyers have noted an increase in family law disputes between parents about the vaccination status of their children. The 2021 case of Makinen & Taube [2021] FCCA 1878 was such a case where parents of two children aged 8 and 12 years old held opposing views in relation to vaccinations and immunisations (Vaccinations).

Whilst there is a presumption under the Family Law Act 1975 that both parents have ‘equal shared parental responsibility’ (which requires parents to make genuine efforts to come to a joint decision) courts can (and do) order that one parent have ‘sole parental responsibility’ for major long-term decisions or for certain issues (including Vaccinations).

In this case the par­ties had existing court orders that provided equal shared parental respon­si­bil­i­ty for the parents. However, on the one hand the father sought to have sole parental responsibility for decisions regarding Vaccinations for the children, as he wanted the children to be vaccinated in accordance with government health advice. On the other hand the mother was opposed to the children receiving any Vaccination and sought an injunctive order preventing them being vaccinated. The mother argued that the children were at risk of adverse reactions, based upon literature she had read in relation to harmful outcomes to children from receiving vaccines.

The Court appointed an Inde­pen­dent Chil­dren’s Lawyer (ICL) to act for the chil­dren. The ICL relied upon the recommendations of the Family Consultant, whose report was in favour of the gov­ern­ment health advice. The Court’s ultimate findings were that both the mother and father had the children’s best interests in mind, but that it was highly improbable that the parents could reach a joint decision about giving the children any particular vaccine at any particular time.

The court commented that “qual­i­fied doc­tors owe pro­fes­sion­al duties of care that apply to giv­ing vac­cines as a form of treat­ment” and further held that the “the father .. is likely to be more compliant with recommendations by a doctor or medical professional.”

As such, the Court ordered that the father have sole parental respon­si­bil­i­ty regarding the chil­dren’s Vaccinations and that the father’s deci­sion-mak­ing in respect of Vac­ci­na­tions be “in accor­dance with the Nation­al Immu­ni­sa­tion Pro­gram or as rec­om­mend­ed by the children’s gen­er­al prac­ti­tion­er.”

When mak­ing deci­sions in relation to children, this case highlights that the Court’s para­mount consider­a­tion is always to be in the best inter­ests of the child/ren.

Finally, if you have read this far and think that you need some practical advice or assistance in relation to your situation, then now is probably the time to get in touch. Austral Legal can help and we offer an initial discounted 30-minute SmartMove appointment for $80 by phone or in person at our office. Bookings can be made online through our website or simply by phoning our office on 08 9745 9550. Once we have a handle on what is required, we may well be able to offer a fixed fee for any further legal services, giving you cost certainty from the start. Austral Legal. Practical advice.