Vaccinations and co-parenting: what happens if you cannot agree?

COVID-19 vaccinations for children

The court’s approach, and what you can do if you and your ex-partner cannot agree about vaccinating your children

Most of us have never experienced a pandemic before.  The ongoing challenges we have all endured throughout the past 3 or more years have been tough especially for families, let alone couples who have separated and are trying to co-parent their children. 

While vaccinations in general are often a hot topic in family law parenting matters, the introduction of the COVID-19 vaccine has further ignited the vaccination debate.  The COVID-19 vaccination became available for children aged 5 to 11 from 10 January 2022 and it remains the recommendation of the Australian Technical Advisory Group on Immunisation (ATAGI), that everyone 5 years and older be vaccinated against COVID-19. While deaths in Australia from COVID-19 have reached 13,021 (as at 16 August 2022) with Queensland having the third highest death rate in Australia, it can be a difficult decision to vaccinate ourselves let alone to make that decision for our children. 

Under the Family Law Act there is a presumption that both parents have equal shared parental responsibility.  However, the court can make orders to change parental responsibility, for example in circumstances where a parent has engaged in abuse of the child, family violence, or co-parenting is not in the best interests of the child.  If parents have shared parental responsibility (by default, or by court orders), then both parents must make decisions of a long-term nature together.  These decisions include issues relating to a child’s living arrangements, education, religion and health.  This includes vaccination decisions.  The decision to vaccinate needs to be a joint one of both parents. 

The Court’s view

The Federal Circuit and Family Court of Australia has the jurisdiction to make orders providing for a child to be vaccinated, if it is in the child’s best interests and regardless of parental consent, due to the overarching principle of the Family Law Act.  That principle is whether it is in the best interests of the child.  This was the issue in cases such as Covington & Covington [2021] FamCAFC 52, and Mains & Redden [2011] FamCAFC 184.

When considering whether to make an order about vaccination, the court looks to the circumstances of each case including reasons for and against vaccination and relevant expert medical evidence.   The court may even order sole parental responsibility to one parent, specifically in relation to COVID-19 vaccination, all vaccinations, or all health matters.  This allows one parent the make the decision alone about those specific issues, rather than a joint decision of both parents.  

Usually, the Court will order that the decision-making parent has to consult with the other parent, and take their views into account, when making Orders for sole parental responsibility about broad issues such as health or education.

In the recent case of Palange & Kalhoun [2022] FedCFamC2F 149, the court considered whether the parties’ 10 year old child should be vaccinated against COVID-19.  The parties were directed by the court to file any expert evidence they sought to rely upon.  One parent filed an affidavit of a public health researcher (Dr E) in the area of vaccination who had a PhD in public health, amongst other qualifications.  There was no other expert evidence put before the court, and no evidence from the child’s doctor. Both parents gave what the court determined to be ‘opinion evidence’ on the medical and public health issues associated with COVID-19infection and vaccination, but as neither party had relevant qualifications, the Court determined it was not appropriate to give any weight to either of their opinions (at [109]). As there was no challenge to Dr E’s expertise, nor cross examination of her opinion evidence, the Court found the unchallenged and uncontested expert evidence established a clear health benefit to a child of 10 being vaccinated against COVID-19 (at [147]).  The court then ordered that it was in the best interests of the child to be vaccinated with the Pfizer paediatric vaccine (at [155]). 

In Maiken & Taube [2021] FCCA 1878 the Court considered whether a father should have sole parental responsibility for decisions about the immunisation and vaccination of the parties’ two children, aged 12 and 8 years old.  While the mother provided the court extensive scientific and medical literature identifying the potential for auto-immune, inflammatory or neurological conditions and other adverse effects in certain cohorts when vaccinated, the Mother failed to produce evidence that the risk of adverse effects from vaccination was greater than the risk of the children contracting any particular disease which vaccination is likely to prevent (at [66]).  The mother also failed to produce expert medical evidence directed to the particular circumstances of the children (at [74]).  The Court ordered that the father should have sole parental responsibility about decisions concerning vaccinations and immunisations for the children. 

In an earlier case of Kingsford & Kingsford [2012] FamCA 889 the Court ordered the parties to ensure that their child be vaccinated traditionally, as opposed to homeopathic remedies (at [125]).  Whilst the homeopathic practitioner expressed the view that traditional vaccinations involve short and long-term risks, the Court found (at [110]) this conclusion “contradicted the position articulated by the British Homeopathic Association and the Australian Register of Homeopaths, which position is the support of traditional immunisation in all cases except those, impliedly exceptional cases, which are medically contraindicated.”

What if you or the other parent do not agree?

If safe to do so, one option might be to try to discuss with the other parent, preferably in writing via email or text message to obtain the other parent’s views in relation to vaccinating the child. 

If you are still unable to reach agreement with the other parent, in most cases the next step is to participate in family dispute resolution (mediation). Shorestone Legal can assist you in this process and can also represent you at mediation. 

The Federal Circuit and Family Court of Australia established a dedicated court list, the National COVID-19 List to exclusively deal with urgent family law disputes that have arisen as a direct result of the COVID-19 pandemic.  More information about this dedicated court list can be found here .

If you have any questions or concerns about vaccinating your child in circumstances where you do not agree with the other parent, please contact Shorestone Legal so that we can advise you in relation to your specific circumstances.

If you have a legal matter you may need help with, contact Shorestone Legal via email or on (07) 3266 4657 for a free, confidential discussion about your options. It doesn’t cost you anything to know where you stand.

About the author

Teena Maguire is an Associate Solicitor at Shorestone Legal, a boutique law firm providing a range of legal services including representing clients in the areas of parenting matters, property disputes, divorce, wills and estates, and criminal matters. Teena also has extensive experience as a health professional, before joining the legal profession. More information about Teena can be found here.