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COVID Vaccination and Children of Separated Parents – How to Decide? Who Decides?

by | Dec 6, 2021 | Family Law

Vaccination of children has long been a difficult topic for separated parents to negotiate when one parent holds a strong view and the other holds a differing view. That difficulty is certainly not any less with the topic of vaccination of children with a COVID-19 vaccination.

To date, parents of children over the age of 12 have grappled with this issue, but often children’s own voices have had a strong influence on decisions because of the relative maturity of children at that age. With the upcoming likely approval of Comirnaty or Pfizer vaccination schedules for children in the age range of 5 to 11 years old, separated parents will have to make a decision about their children’s immunisation. Being a decision about a child’s welfare, this is a decision of parental responsibility.

Who Decides?

If you have equal shared parental responsibility with your former partner (which by default, you will unless a Court intervenes) this needs to be made together. Someone with sole parental responsibility will likely be able to make this decision themselves subject to the precise terms of any orders allocating them sole parental responsibility.

But what if you cannot agree? The Federal Circuit and Family Court of Australia (FCFCOA) has the power to both make decisions allocating sole parental responsibility to break deadlocks, but also the power to actually make a decision about whether a child undergoes medical treatment, including vaccination (as was recently reaffirmed in the matter of Covington in the High Court of Australia).

How to Decide

A decision such as this one made, if made by a Court, by examining a child’s ‘best interests’. Best interests are not simply what you or your ex-partner think are the best interests, but incorporate a list of factors in section 60CC of the Family Law Act 1975. Even if you are not in Court and are just trying to make this decision yourself, it is a good idea to follow the family law pathway to have a sound backing for your decision making. Some of the factors to consider are:

  1. Incorporating any known risks and particularly those noted by the Australian Technical Advisory Group on Immunisation (ATAGI) and from the Therapeutic Goods Administration (TGA) rather than from third party sources or through social media
  2. Balancing the benefits to the community of vaccination levels
  3. Any particular and specific medical vulnerability your particular child may have or history of adverse reaction to vaccinations, in consultation with your medical provider and your child’s general practitioner
  4. Whether there were previous discussions or agreements about vaccination during the relationship together

It is critical that in these discussions that parties remain calm and focussed on objective discussions rather than personal attacks. With a good, calm and sensible lawyer, you will be able to work through a dispute you may have and get the advice about what step to take to protect your child’s best interests. Call us our family dispute lawyers on 03 9614 7111 to discuss your situation if you have, or anticipate that there will be, a dispute about your child’s COVID-19 vaccination.