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Vaccinate my Child: Can a Court order me to do this?

The outbreak of COVID-19 has brought about a divide in public opinion about a number of things. However, none is more topical than whether one is required to be vaccinated against the virus. This societal issue has made its way to the Federal Circuit and Family Court of Australia, given the most recent rollout of vaccination recommendations for children over 5 years old.

Case 1: Makinen v Taube (2021)

In the recent case of Makinen v Taube (2021), the court ruled against a mother who asked for an injunction against vaccinating her children. The children were 12 and 8 years of age.
The Family Law Act holds the presumption that both parents of a child/children should have equal shared parental responsibility, meaning that both parents have a say in their child/ren major long-term decisions. This is held unless one parent has a Court Order granting sole parental responsibility.

The father asked the court to grant him sole parental responsibility about immunisation/vaccination of the children. This would allow him to have the children vaccinated without the approval of the mother.

The mother made a counter application asking the court to injunct the father from vaccinating the children. The mother relied on several factors including the fact that she is the children’s primary carer, (post separation and while the parties were together) and asserted that her medical research showed if one parent was immune compromised the child of that parent is more likely to have adverse side effects.

The Independent Children’s Lawyer relied on recommendations of the Family Consultant as follows:

“The children not being vaccinated is contrary to the State and Federal Government Health recommendations. Non-vaccinated children and adults can be excluded from services and travel opportunities due to the risk they pose to other people.”

The Court ultimately found that the material the mother was relying on, only noted the potential for side effects however ultimately concluded children should be vaccinated. Further, adverse side effects are rare and most people within Australia are vaccinated for COVID-19 and other widespread infectious diseases. This was accepted by the mother in her evidence.

Therefore, the court ruled in the father’s favour granting him sole parental responsibility in relation to the children’s vaccinations. He was ordered to follow the recommendations of the children’s treating GP in relation to whether they should get vaccinated.

The mother was given the opportunity to be consulted and raise concerns she had to the children’s General Practitioner. However, the father was still given sole parental responsibility as the court found the mother was unlikely to follow expert medical advice.

Case 2: Covington v Covington (2021)

The case of Covington v Covington (2021) was a further case that demonstrated the Federal Circuit and Family Court’s ability to make rulings on a child’s vaccination status.

Similar to the above case, there was a disagreement between the parents as to whether their child should be vaccinated. Orders were made in the Federal Circuit and Family Court that meant the child was to be vaccinated, despite the mother’s request for that not to happen. To facilitate this, the child was to live with the father for a period of time to ensure the mother did not interfere with the vaccination process.

On appeal to the High Court, the mother argued that the issue of vaccination was not one for the Federal Circuit and Family Court to determine, instead it was a Constitutional issue. According to the mother, the child had a constitutional right to decide whether they wanted to be vaccinated under s 51xxiiiA of the Constitution.

The High Court found that the Federal Circuit and Family Court did in fact have jurisdiction to made orders requiring a child to be vaccinated. Further, the section of the Constitution raised by the mother did not apply to vaccinations. Instead, it protected doctors and dentists from being required to administer medical procedures.

Emily Nugara, Graduate Solicitor