The Family Court in Australia has for long been experiencing chronic delays in dealing with cases. To address this challenge, the federal government formulated a plan to merge the Family Court and Federal Circuit Court of Australia.
Adding to the strain of general family law cases, the new Omicron wave of Covid-19 brought with it some exceptional challenges. Vaccination disputes have become one of the central issues among families who approach courts.
The most common kind of dispute under this has been in the form of disagreements between two parents on whether or not to vaccinate their children. Many couples have reached an impasse in dealing with this issue, with one parent strongly in favor of vaccinating the children, while the other strongly opposing the same.
Apart from this issue, Australia’s Family Courts have a “priority Covid-19 list” which also include matters like an increase in family violence which is associated with the pandemic, Covid-19 related employment which is affecting parenting arrangements, and disruption in travel arrangements due to Covid-19 which prevents the children from travelling between the two parties’ residences.
Vaccination disputes
Among all Covid-19 related issues that have filled up the priority list in Family Courts, the vaccination dispute among parents remains a hot topic. As we have seen, this issue is not restricted within Australian borders, with countries like Canada facing similar issues.
What has been witnessed by many family lawyers and family court officials is that each parent has a different view on whether or not their child/ren should get vaccinated. This issue becomes especially interesting when considering shared parental responsibility.
Recently, in Gold Coast, a case related to vaccination dispute between former spouses has reached a “stalemate.” Are there any avenues when you reach a point of irretrievable differences such as this? It is truly interesting to see how both parties can exercise their parental rights and parental responsibility in making important decisions in the child’s life.
Traditionally, in cases where there’s a dispute on some matter between two parties, services like mediation and family dispute resolution are used. For more information on what mediation means, check JB Solicitors’ website.
Mediation has always proven to be an efficient way to solve complicated family law disputes. Mediation can help facilitate a healthy discussion between both parents who can openly state their views and opinions. The neutral mediator creates an environment to encourage a conversation between the parties, and ultimately, they are able to reach an agreement.
However, in cases like this where a parent is strictly opposed to the idea of vaccinating the child, it is difficult to imagine mediation to be able to solve this easily. In such cases, the parties then have to approach courts.
Best interests of the child?
Family Courts in Australia give paramount consideration to the best interests of the child as stated under Section 60CC of the Family Law Act (1975). In case of any disputes between parents, when making final decisions, the best interests of the child are always considered.
The big question then is whether vaccination is in the child’s best interests. Generally, in such matters, the Family Court will listen to facts and evidence from both sides, and then make an order accordingly.
Furthermore, apart from evidence presented by involved parties, the Court may also review facts and evidence given by medical professionals and court-appointed experts (if any).
Importantly, in such matters, the Family Court will also include one of the secondary considerations of the best interests of the child – the opinion and view of the child/ren on this matter.
Traditionally, immunization has been viewed as being in the child’s best interests, as it ensures safety and protection against diseases. However, the court will consider this on a case-by-case basis.
For instance, the Court may make a decision by looking at the medical history of the child, by analyzing the type of vaccination which is in discussion, and by considering any cultural concerns.
Case studies
In Australia there were some cases in the past which we can analyze to understand how courts would deal with vaccination disputes between parents.
Firstly, in the case of Covington & Covington [2023] FamCAFC 52 the Court made a decision regarding the vaccination (not Covid-19 vaccination) status of the child, regardless of parental consent. This reflects that the court has the authority to do so, if it feels the decision is in the best interest of the child.
Secondly, in the case of Duke-Randall & Randall [2014] FamCA 126 the father sought the vaccination of two children, while the mother was opposed to this.
The immunization was to be made against whooping cough which both children suffered from, as a result of which they had to be repeatedly excluded from extracurricular activities like gymnastics.
The father presented medical evidence supporting his argument, whereas there was no substantial evidence about the adverse impacts of the vaccination as claimed by the mother.
Ultimately the court made an order that the children be vaccinated as it was seen to be in their best interests.
This case affirms that children’s opinions will be given great consideration in these matters. Seeing how important it is to be vaccinated in Australia to participate in a majority of activities, the children might express their wish to get vaccinated.
In certain cases, it might also turn out that the court gives sole parental responsibility to one parent, and not make any vaccination orders specifically. If this happens, the parent with sole parental responsibility will have the ability to make any decision regarding vaccination without needing the consent of the other party.
Conclusion
Seemingly, disputes related to Covid-19 will continue for many weeks. If you are dealing with such issues which are on the Covid-19 priority list, it is advisable to seek guidance from experienced family lawyers from your jurisdiction.
They can help alleviate the stress you feel because of case delays, and provide you with exceptional advice which will help you close your case.
In cases where you think vaccination disputes can be solved through mediation, seek the help of an experienced mediator to help you resolve your disputes.
