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Court ordering children to be vaccinated against COVID-19 – Divorce

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With the rollout of COVID-19 vaccinations for children in the back end of 2021, it is unsurprising that the Courts have been faced with the task of resolving disputes between parents who have clashing views on the Court ordering children to be vaccinated against COVID-19 . So, what is the outcome of children matters?

In several cases that came before the Federal Circuit and Family Court of Australia (“the Court”), including Covington & Covingtonthe Court has shown how it can intervene when the parents of a child disagree about whether or not their child should be vaccinated.

Covington & Covington

Covington was a parenting matter before the Court. The parties reached an agreement to have the child vaccinated as recommended by the child’s doctor or treating medical professional. After the Orders were made, the Mother changed her mind and lodged an appeal. The mother also applied for a stay of the original Orders until her application of her to the High Court, stating constitutional grounds, was decided. The Mother’ Application for a stay was rejected. The Mother appealed to the Full Court.

Appeal

The mother filed a number of appeals after the original orders were made by consent, raising the following reasons:

  1. Her original consent was made under duress, coercion and pressure to do so.
  2. As she no longer consented, the Orders should have no legal effect; and/or
  3. The child had a constitutional right to be afforded a freedom from mandatory vaccination (and therefore the Family Court did not have the power to make an order about mandatory vaccination).

The Mother was unsuccessful and the Appeal was dismissed.

Court must decide whether it is in the best interest of a child

Since Covington & Covingtonthere have been a number of matters which have come before the court where the parents of a child are unable to agree on the issue of whether a child should or should not be vaccinated. makinen, Karcher & Lacoss [2022] FedCFamC2F 281 and Kafler & Magnan [2022] FedCFamC2F 198.

In all matters, and in accordance with the Family Law Act, the Court has made a decision that they believe is in the best interest of the child. In Covington, the Court acknowledged this obligation and considered not only the benefits of vaccination on the child, but also to the impact on the child of the mother’s personal stance on vaccination.

Court’s jurisdiction to order vaccination

Pursuant to the Act, the Court has jurisdiction to make a parenting order as it sees proper under section 65 of the Family Law Act 1975 (Cth) (‘FLA‘). Such jurisdiction includes the power to make an order providing for the child to be vaccinated regardless of consent given by the parties.

Court does not wish to step into the shoes of a parent

Interestingly in almost all of the cases that have come before the Court, the Court has not made an order for the child to be vaccinated, but provided for parent in favor of vaccination to have the decision making power in relation to this issue, by making an order that that parent have sole parental responsibility for that one discreet issue.

In doing so, the Court further highlights the court should not step into the shoes of the parents and make the decision for them, but rather, place the responsibility with one parent.

What is the general outcome?

The various decisions made over the last year provide some guidance to parties as to how disputes relating to their child’s vaccination status may play out. It is clear from recent cases that the court perceives vaccination to be in the best interests of a child in most circumstances, and hence, will make orders to achieve this result, including through the grant of sole responsibility to one parent.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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