As NSW hits the 70% vaccination mark and we get closer to returning to the life we knew before the outbreak of COVID-19, one particular issue continues to rear its head in parenting disputes.
As it presently stands, the Australian Government has "strongly encouraged" everyone aged 12 years and older to get vaccinated, but what happens when parents cannot agree?
Generally, immunisation falls under the category of 'parental responsibility' as it is a medical decision. Where one parent has parental responsibility, they are the person that makes the long-term decisions in respect of the care, welfare and development of the child/children and this includes decision making in relation to vaccinations. These decisions can be more difficult where parents have shared parental responsibility as they are required to jointly make decisions about the child/children's immunisation.
The recent case of Makinen & Taube dealt with this exact issue, as the Mother and Father of two children aged 12 and 8 had opposing views on the COVID-19 vaccine. The parties had existing Orders providing them with equal shared parenting responsibility. The parents in this case were unable to make a joint decision as, whilst the Father wished for the children to be vaccinated in accordance with the State and Federal Government health recommendations, the Mother was opposed to the children being immunised.
The Mother submitted that the children were at risk of adverse reactions to vaccines and referred to literature she had read regarding the issue of negative vaccine outcomes.
The Father submitted that it was in the children's best interest to be vaccinated having regard to Australian Government publications and recommendations of the Australian Immunisation Handbook.
An Independent Children's Lawyer ('ICL') was appointed by the Court to act for the children. The ICL relied upon the Government recommendations and further submitted that non-vaccinated children can be excluded from services and travel opportunities due to the risk they pose to other people. The ICL contended that this exclusion could also have negative consequences for the children.
The Court noted that "Orders that ensure a decision is taken about giving vaccines based on current medical advice is essential for the best interests of the children" and further commented that "qualified doctors owe professional duties of care that apply to giving vaccines as a form of treatment."
The Court ultimately determined that the Father should have sole parental responsibility in relation to the children's immunisation. The Orders made by the Court required the Father's decision-making in respect of vaccination to be "in accordance with the National Immunisation Program or as recommended by the children's general practitioner."
This case once again highlights that when making decisions, the Court's paramount consideration is the best interests of the child.
For further information please contact:
Nicole Pozovsky, Associate
Phone: +61 2 9233 5544
Email: npp@swaab.com.au
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