Posted on July 23, 2021
Hanna Psomoulis
Listen to Carol Pagès discuss this topic on 6PR radio with Millsy:
On Friday 23 July 2021, the Therapeutic Goods Administration (the TGA), Australia’s regulatory body for therapeutic goods, approved the Pfizer COVID-19 vaccine for children aged between 12 and 15, having previously approved the vaccine for children aged 16 and over.
With three states and almost half the Australian population currently in lockdown, and reports of younger people being hospitalised with Covid-19, vaccination is a popular topic of conversation.
What about vaccinating children? What happens in separated or divorced families when the parents don’t agree?
Parents are legally responsible for their children until a parenting order or plan provides otherwise. Parental responsibility in the Family Law Act 1975 (Cth) (the Act) is defined as all the duties, powers, responsibilities and authority, which by law, parents have in relation to children.
When an application for parenting orders is considered by the Court, the Act provides that the Court must apply a presumption that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’ unless the specified exceptions apply. The effect of equal shared parental responsibility is that parents must consult each other about any major long term issue and make a genuine effort to reach a joint decision about it. Major long term issues are defined in the Act and include the child’s education, religion, name and health.
Most parenting orders sought by parents after reaching agreement for their own children, or those made following a determination to the Court, would not have specific orders in respect of vaccination.
The Family Court has jurisdiction to determine matters in relation to child vaccination, and is also able to determine outcomes in relation to major medical procedures for children, however vaccination of children has not yet been found to be a procedure which fell within the scope of major medical procedures.
In all parenting matters, the Court will consider the best interests of the children as the paramount consideration, and will make such parenting order as it considers proper.
Some parenting orders provide for dispute resolution procedure for parents to seek out where they are unable to agree on an aspect of their parenting, such as attendance at mediation, or a Family Dispute Resolution centre. Parties without a dispute resolution procedure may also decide to attend mediation or Family Dispute Resolution in an attempt to resolve their differences prior to seeking legal assistance. Parenting orders in most cases are able to be varied by a later parenting plan agreed by both parties.
In a case regarding general (non-Covid-19) children’s vaccinations earlier this year, the Family Court heard an application by a mother to set aside the consent parenting order relating to vaccination of the parties’ child. The parties had resolved their parenting matter following a 4 day hearing in November 2020. The vaccination order provided that the parties would agree to their child receiving the vaccinations recommended by the child’s paediatrician. The Court found that the orders providing for the child to be vaccinated were in the child’s best interests and the mother’s objection to the child being vaccinated flew ‘in the face’ of the evidence presented by the paediatrician and the infectious diseases physician.
In the event of a dispute between parents about whether or not to have their child vaccinated for Covid-19 we recommend the assistance of Family Dispute Resolution, or advice from the child’s doctor or paediatrician.
Ultimately in a dispute about whether or not to have a child vaccinated for Covid-19 would require evidence in relation to the particular circumstances relevant to that child.
Vaccination for Covid has become an area of public debate and today’s decision about vaccination of children is likely to increase the discussion.
If you are seeking advice about your parenting arrangements or orders please contact one of the experienced members of our team here at Scanlan Carroll.
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