Since the outbreak of the COVID-19 pandemic, vaccinations have become a ‘hot topic’.
Whilst over 90% of the Australian population over the age of 12 are fully vaccinated, there remains some hesitancy when it comes to vaccinating children. The opening up of the COVID-19 vaccination to children aged five to 11 on 10 January 2022 has especially increased debates over vaccinating children.
There can be many unique reasons behind a parent’s objection to vaccinating their child, including their beliefs (religious or otherwise), a preference for homeopathic therapies, or even a concern that their child may have an adverse reaction. No matter the reason, when one parent wants their child to be vaccinated and the other does not, vaccination becomes a source of great conflict between the parents, particularly those who are separated.
So, what happens if parents cannot agree on the vaccination status of their child?
Where does it start?
Under section 70A of the Family Court Act 1997 (WA) there is a presumption of ‘equal shared parental responsibility’.[1] In effect, this means parents are required to consult one and other and make a genuine effort to reach a joint decision about the major long-term issues in relation to the child’s care, welfare, and development. To that end, equal shared parental responsibility includes making decisions in relation to the vaccination and immunisation of children.
It is important to note that even if a child voices their own wishes in relation to their vaccination status, it is ultimately up to the parents. However, despite children not being at liberty to decide on major-long term issues, the older they get, the more weight that is given to their views by the Family Court. For instance, a dispute involving the vaccination of a 17-year-old versus that of a 5-year-old will give far more weight to the views of the 17-year-old.
How can parents resolve their dispute?
In the event a decision cannot be reached by the parents between themselves, Alternative Dispute Resolution is the best next step.
For all family law disputes, before an application can be made in the Family Court for final orders, the parties must take all genuine steps to resolve the matter, which typically involves attending mediation. Without attending mediation, parents will not be given a section 60i Certificate – a pre-requisite to making an application for parenting orders in the Family Court.
At a mediation, parents attend a meeting with a trained family dispute resolution practitioner or mediator who will work with them in a neutral way to help them reach an agreement. Each parent will be given an opportunity to voice their concerns, brainstorm options, and ultimately try to resolve the matter by reaching an agreement.
In the event mediation is unsuccessful, or if no mediation is conducted due to a refusal by one party, a section 60i Certificate will nonetheless be given and an application can then be made in the Family Court for final orders, if no agreement can otherwise be reached.
What is the Family Court’s position?
The Family Court determines each matter before it based on the individual facts and circumstances of the case. This means there is no ‘one-size fits all’ approach to resolving your family law dispute. Family Court judges especially have a wide discretion when determining cases, meaning that it is often difficult to predict what the outcome of a Family Court trial will be.
Ultimately, in deciding whether to make an order for vaccination, the Family Court must always consider what is in the best interests of the children.
When it comes to the Family Court’s position on child vaccinations, there is no fixed position. The history of the case law, however, suggests the Court has undoubtedly been in favour of expert medical advice. This has meant that the overwhelming majority of cases on child vaccinations have resulted in orders for traditional immunisation due to the lack of expert medical evidence supporting a complete objection to vaccinations.
In effect, this means the Family Court are more likely than not to make orders which provide for the vaccination of children.
It is important to note, however, that despite the Family Court preferring the application seeking the implementation of the traditional vaccination regime, the Court will nevertheless consider all expert advice before making a determination.
Joss Legal’s Recommendation
At Joss Legal, we appreciate the vaccination of children is a sensitive topic and respect that all families have different views and arrangements.
We encourage all parents to remember that the overarching consideration is always what is in the best interests of the children. With this is mind, Joss Legal encourages all parents to shelter and protect their children from conflict.
If you disagree with your current or former about how your children are to be immunised, we recommend that you seek independent advice from one of our friendly family lawyers before considering Family Court proceedings.
– Joss Legal
[1] Please note, the Family Court can order that one parent have ‘sole parental responsibility’ for all or specific major long-term decisions.