Disputes between parents in relation to vaccinating children

With the increasing pressure from Covid-19 for the community to be vaccinated, disputes may arise between parents with different opinions pertaining to the vaccination their children.

As a parent, the first step in avoiding conflict is to keep communication open with the other parent and ensure the best interests of the children are the paramount consideration.

Generally speaking, parents have parental responsibility of their children until they reach the age of 18 years old, or unless parental responsibility is displaced by an Order made by a Court. The Family Law Act 1975 (Cth) recognises parental responsibility to include “all duties, responsibilities and authority which, by law, parents have in relation to children”. This includes decisions relating to medical issues and treatments such as vaccinations.

When parents are unable to reach agreement on medical issues, an application can be made to the Federal Circuit and Family Court of Australia for an order relating to the proposed medical treatment in dispute.

In a flow on effect of the government’s “no, jab, no pay” policy and amendments to the Family Assistance and Child Support Legislation, in recent cases, after due consideration to expert opinion, the Courts have formed the view that vaccinations are in the best interest of children. Cases such as Kingsford v Kingsford, Gillick, and Marion have paved the way for future cases not only involving vaccination disputes but also for disputes involving other major medical treatment decisions.

In making an Order regarding medical treatment the Court is likely to consider expert medical advice in relation to the benefits and risks of the proposed medical treatment. In the case of Kingsford v Kingsford, the Court considered expert advice and deemed it appropriate to order the vaccination of a child as it was deemed to be in the child’s best interests.

There are circumstances where children may be able to make their own decision regarding the medical treatment, depending on their age and maturity. In the case of Gillick & Marion, the Courts held that if a child has sufficient understanding and intelligence that enables him or her to fully understand the proposed medical treatment, then the child is competent to make their own medical decisions and the parent’s rights to make decisions in relation to the child’s medical treatment cease.

If you are experiencing difficulties in reaching agreement regarding medical decisions for your children, do not hesitate to contact our office on (03) 5366 3888 to discuss your matter with one of our family law practitioners.

Author: Amanda Smith