Two years into the pandemic, we now have a vaccine available against the Covid-19 virus (Coronavirus). While statistics as at 10 January 2022 report that 92.1% or 18,983,334 Australians over 16 years have been fully vaccinated (and 87.9% or 8,552,797 in the Sunshine State), there remain a significant number of Australians that are not in favour of receiving the vaccine, including a new class of “anti-vaxxers” – those that have been vaccinated and had their children vaccinated against other diseases such as Measles, Mumps and Rubella, but are either anti- Pfizer, anti-AZ, or the jab entirely – a possible complicating factor in family court litigation of this nature. This is not an article about whether the views of those parents are right or wrong, but simply an analysis as to how we, as family lawyers, approach this issue with clients.

As of 10 January 2022, children between the ages of 5 to 11 became eligible for the free Pfizer vaccine. It follows that family lawyers are seeing a significant increase in parenting disputes involving the vaccination of children – of course, where one parent wishes for their child to be immunised against the virus, but the other doesn’t.

Where agreement between parents about vaccinating their child or children fails, those parents at an impasse have the option with an application to the court, asking the court to make orders supporting their desired approach. They may or may not be eligible to be included as part of the National Covid-19 List, which is a new initiative of the Court that is designed to deal with urgent issues arising directly from the pandemic.

As has been established in Full Court decisions and recently confirmed in Covington & Covington (2021) FamCAFC 52, Orders requiring or restraining the vaccination of children can be made by the newly named Federal Circuit and Family Court of Australia on application by a parent (or other person eligible to apply for parenting orders as the case may be). In that case, the first instance decision of the Family Court of Australia, the mother sought to withdraw her consent to final parenting orders (entered into during the course of the trial) which provided for the vaccination of a 10 year old child. The mother sought that, instead, an order be made for the her to have sole parental responsibility with the child not to be immunised or vaccinated.

The father opposed the mother’s application, maintaining that the orders for equal shared parental responsibility and for the child to be vaccinated in accordance with a vaccination schedule recommended by a paediatrician should remain in place (it is also important to note that there were a number of problems with the foundation of the mother’s application). The father also sought a variation of the consent order that the mother be restrained from attending any and all paediatric and general practitioner appointments made for the purposes of having the child immunised or vaccinated to, in essence, limit the child from being exposed to the sort of language and fear in relation to vaccinations which the mother was exhibiting. This was granted by the Family Court.

The mother, on further application, sought a stay of the orders, which was dismissed as the Court considered that vaccination was in the best interests of the child, and the mother’s appeal was “most unlikely to succeed”. The mother then appealed to the Full Court regarding the stay decision, and also to the High Court of Australia on the basis of a constitutional argument in which the mother contended the Constitution forbids the Commonwealth provision of medical and dental services, and provides a freedom from compulsory vaccination. Her appeal was found to have lacked merit, and was therefore unsuccessful.

The difficulty for parties to litigation with little or no experience in an adversarial family court system it that it is not simply a matter of stating “I believe the vaccine is good or bad”. Accepting that a parent will often make a case in line with what is influenced by what they believe and therefore want for their child or children, it is however critical to the success of an application that a party adduces admissible evidence in affidavit form and which is guided by statute, including evidence by a credible expert under Chapter 7 of the Rules (i.e. this could be a psychologist, paediatrician, or general practitioner) which supports that child’s best interests. That is a paramount consideration of the court.

Court, in almost all circumstances, should be the last resort for families, and s60I of the Family Law Act 1975 requiring parties to attend a family dispute resolution conference (colloquially a “parenting mediation”) unless that is not appropriate, seeks to do just that.

The Family and Relationship Law team at Mills Oakley Brisbane are experts in this area of law, and helping families navigate both the alternate family dispute resolution forums to arrive at an agreed outcome for children, and otherwise litigation requiring an application and appearance for a party or parties at Court.