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To Vaccinate or not to Vaccinate?

A choice that every adult has made, but what about children of mixed view families? What is the stance of the Federal Circuit and Family Court of Australia?

Amongst other issues, the matter of Covington & Covington addresses the issue of whether a child should be vaccinated against COVID-19. The mother was strongly against vaccination and the father supported vaccination. The initial matter went to trial, and on the fourth day of trial, orders were made by the consent of the parties that included having the child live with the mother and spend time with the father and for the child to be vaccinated.

A consultant pediatrician and infectious disease physician prepared a report for the court that was admitted into evidence at the trial. The court noted that ‘the mother’s position concerning vaccination is not child-focused, and it is not in the best interest of the child. It is not based on evidence, and on the evidence… [by not having the child vaccinated] it may expose the child to harm.’ 

Covington & Covington [2021] FamCA 1064

Before the orders were published, the mother contacted the court and withdrew her consent with respect to the vaccination of the child claiming that she was pressured and coerced into providing her consent.

The court found that in accordance with matter of Melville v Melville (No 3) (2020) 61 Fam LR 280, just because orders have not been formally entered into the computer system, does not undermine the force of the orders pronounced in court and as such the orders that had previously been made were in effect and the mother could not simply withdraw her consent.

The father sought a variation to the consent orders to be able to exclude the mother from the vaccination process should she be unable to contain her own fears in relation to the child being vaccinated and support the process. The court granted the variation of the orders.

Covington & Covington (No. 2) [2021] FamCA 24

The mother bought a further application in a case to stay the orders. The mother’s application was dismissed, and the Court further varied the orders to restrain the mother from contacting any medical practitioner, or their servants and agents attended by the child for the purpose of receiving the vaccination.

Covington & Covington (No. 3) [2021] FamCA 198

The mother had not made the child available for the father’s time just prior to the first vaccination appointment in accordance with the Orders and the father brought an urgent application for the purpose of enforcing the orders made by the court to have the child vaccinated. In this regard, the court ordered that the child live with the father for a period of approximately 4 months until the scheduled vaccinations were complete.

The Courts supports the administration of the COVID-19 vaccine where it is in the best interest of the child.

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact our office on (02) 9948 3820.

Associations

  • The Law sociaty of NSW
  • Doyles - Family Law 2020
  • Doyles - Family Law 2022
  • Family Law Section - Law Council of Australia - Member 2021/2022
  • Collaborative Professionals (NSW) inc

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