The COVID-19 vaccine has proved to be an area of contention since its release. It is therefore no surprise that the Federal Circuit and Family Court of Australia (‘the Court’) have found itself dealing with a growing number of disputes between parents with opposing views on the safety of the COVID-19 vaccine. The precedents show that the Court relied on public policy and health advice to determine if the vaccine is in the best interests of children.

In response to the growing number of disputes, the Court established the National COVID-19 List, which deals exclusively with urgent, COVID-19 related matters. To be eligible for the COVID-19 List, you must satisfy all of the following criteria:

  1. The application has been filed as a direct result of, or if indirect, has a significant connection to, the COVID-19 pandemic;
  2. The matter is urgent or of a priority nature;
  3. The application is accompanied by an Affidavit (using the COVID-19 template affidavit) that addresses all of the criteria;
  4. If safe to do so, you have made reasonable attempts to resolve the issue but you were unsuccessful; and
  5. The matter can be dealt with using electronic means (e.g. using telephone or video link).

As the presence of COVID-19 is relatively new, there are few cases describing how the Court will deal with parenting disputes with respect to children receiving the COVID-19 vaccine. These cases have demonstrated the Court’s propensity to align decisions with current public policy, which is overwhelmingly in support of COVID-19 vaccinations. As evidenced in the following cases, the general position of the Federal Circuit and Family Court is that unless opposed by health advice or medical evidence the COVID-19 vaccine is in the best interest of the child.

Covington & Covington (2021) FamCAFC 52

In this matter, the Mother made an Application in an Appeal seeking a stay of parenting orders which had been made by consent. The Orders provided for the parties’ child to be vaccinated as recommended by the child’s pediatrician. The order was agreed to by the Father and supported by the ICL based on the professional, medical advice of the pediatrician.

After the Orders were made, the Mother withdrew her consent with respect to the vaccination order, asserting that she had consented to the order under “duress, coercion and pressure”. The Father and ICL both opposed the Application.

The Mother sought to have her appeal heard by the High Court on the basis of s 51(xxiii) of the Constitution, which forbids the Commonwealth provision of medical and dental services and provides a freedom from compulsory vaccination.

The Full Court found that the Mother’s argument had no merit and confirmed that the Court has jurisdiction to make orders providing for a child to be vaccinated if determined to be in the child’s best interest, irrespective of parental consent.

Palange & Kalhoun [2022] FecCFamC2F 149

This case presented the conflicting views of a Mother who wanted to vaccinate the child and a Father who wanted to wait until the long-term side effects of the vaccine were known. Shared parental responsibility meant that neither parent was entitled to make this decision unilaterally, that is without the input and consent of the other.

Expert medical advice was given by Dr E, a public health researcher specialising in vaccination. He concluded that “while COVID-19 illness is frequently mild in children, the risks associated with infection far outweigh the risks associated with vaccination” [57].

The only opinion evidence which was admissible in the proceedings under the Evidence Act was Dr E’s opinion regarding the risks of the COVID-19 vaccination for children aged 5 to 11. The other evidence (including opinion evidence from the mother about the child’s health risks, and articles about COVID-19 vaccination safety) was not admissible under the Evidence Act but was admissible by reason of section 69ZT of the Family Law Act (which states that the rules of evidence do not apply to child related proceedings and the Court may give such weight as it thinks fit to the evidence admitted).

Despite this, the Court, at paragraph 112, stated, “I give substantial weight to the unchallenged and uncontested evidence of Dr E who is a highly qualified expert”.

The Court order the child to be vaccinated, ruling that:

“The only reason not to vaccinate the child against COVID-19 now is because of the father’s concern that at some unknown future time some unknown side effect will emerge. There is no evidence about the likelihood of that happening, nor of the possible or likely nature of any future adverse side-effects” [151].

Dacombe & Paddison [2021] FedCFamC1A 103

In this case, the Mother wanted the child to be vaccinated against COVID-19, and the Father did not. The Father eventually agreed to having the child vaccinated and their agreement was formalised by way of Consent Orders.

The Father appealed the decision on the grounds that the Orders were not made with his consent and that the Constitution does not permit the government to arbitrarily authorise health decisions. The Father argued that due to the Constitutional nature of the matter, it was necessary to proceed to the High Court of Australia. The Court dismissed the Father’s appeal, on the grounds that he had agreed and consented to the Orders, was well informed of the particulars of the agreement and understood the terms of the agreement. Further, the Court did not consider the matter to be of a Constitutional nature.

The Father’s appeal was summarily dismissed on the basis that his argument has no reasonable prospect of success.

So, what does this mean?

The above cases clearly demonstrate the Court’s discretionary power to make orders regarding the issue of vaccination where the Court believes it to be in the best interests of the children. To determine the best interests of the child, the Court will observe and consider expert evidence and opinion evidence where it is relevant. The initial position, however, will be on the side of government policy and health advice which is currently in full support of the COVID-19 vaccine. These factors will carry the heaviest weight on the Court’s decision. Unless health advice and expert evidence say otherwise and provide that the vaccine is not in the best interests of a child, then the Court will rule in favour of the child being vaccinated against COVID-19.

If you need further advice from our expert family law team, please contact us on 1300 749 709 to see how our experienced team can assist you.