Ex Partner Won’t Consent to The Covid Vaccination for Our Child

17 January 2023

The question is now being commonly asked; “what happens if my ex won’t consent to the COVID vaccine for our child?”

The answer; it depends on the circumstances, but recent Family Law Court decisions have all tended towards Ordering vaccination, or Ordering that the ‘pro-vaccine’ parent be empowered to decide on whether to vaccinate.

Disputes between separated parents on vaccination are not new to the Family Law Courts. Some decisions touching on vaccination against diseases other than COVID-19 include:

1. T & M [2002] FMCAfam 277 – Order for general typical vaccinations sought by father refused by Federal Magistrates Court as mother had already (less than two weeks beforehand after 18 day trial) obtained an Order from Family Court of Australia, empowering her to decide on medical issues.

2. Flynn & Jeffcott [2011] FMCAfam 1239 – Court refused to make any Order regarding vaccination despite this being an issue in dispute. This was because neither party presented scientific evidence; Court was therefore not satisfied vaccination in child’s best interests.

3. Duke-Randall & Randall [2014] FamCA 126 – Court Ordered general vaccinations; expert report tendered to effect that children involved were not at increased risk of adverse events from vaccination. Parent opposing vaccination presented no expert evidence.

4. Mains & Redden [2011] FamCAFC 184 – Full Court of the Family Court permitted new evidence and Ordered re-hearing based on such evidence. Parties ultimately agreed, during re-hearing, on Orders for vaccination.

5. Howell & Howell [2012] FamCA 903 – Mother given sole parental responsibility (power) to make decision regarding child’s health, which included decision on whether to vaccinate.

6. Kingsford & Kingsford [2012] FamCA 889 – Court Ordered vaccinations based on expert evidence which asserted that benefits of vaccination outweighed risks.

7. Arranzio & Moss [2015] FamCA 544 – Father given sole parental responsibility to make decisions regarding child, which included decision on whether to vaccinate.

Decisions on whether to vaccinate against COVID-19 in particular have favoured vaccination. Examples include:

1. Fontain & Pretre [2022] FedCFamC1F 198 – Order made permitting mother to have second COVID-19 vaccine dose given to children. Mother relied on evidence from children’s paediatrician and GP. Father presented no expert evidence.

2. Clay and Dallas [2022] FCWA 18 – Order made permitting father to have second and third COVID-19 doses given to child, provided certain conditions were met, including that the child have an echocardiogram. Child’s views taken into account by Court.

3. Lamos & Radin (No 2) [2022] FedCFamC2F 167 – Order made permitting father to have 16 year old vaccinated against COVID-19 without mother’s approval, provided child consented to being vaccinated. Court recognised, given child’s age, that there may be significant practical impediments if child did not agree to being vaccinated.

4. Karcher & Lacoss [2022] FedCFamC2F 28 – Order made for father, who was ‘pro-vaccination’, to have sole parental responsibility for decision to vaccinate. Father presented evidence from child’s GP, whom Court considered an expert. Mother presented no expert evidence. Court also took ‘judicial notice’ of ‘transmissibility and seriousness’ of COVID-19.

5. Cranston & Persson (No 2) [2022] FedCFamC1F 187 – Order made for mother to have sole parental responsibility in relation to question of whether or not children would receive all COVID-19 vaccines. Mother tendered evidence from children’s medical practitioners and children’s wishes taken into account.

6. Rusena & Rusena [2022] FedCFamC2F 472 – Order made for father to have sole parental responsibility in relation to question of whether children would receive all COVID-19 vaccines. Mother presented evidence, supporting prohibition against vaccination, from experienced vaccine research professor. Father presented evidence from children’s medical practitioners, a doctor who asserted that adverse affects from COVID-19 vaccines were rare and that risks of not immunising outweighed benefits.

7. Palange & Kalhoun [2022] FedCFamC2F 149 – Order made permitting mother to have child vaccinated. Mother presented expert evidence whereas father did not.

8. Makinen & Taube [2021] FCCA 1878 – Order made for father to have sole parental responsibility in relation to question of whether 12 year old child would be vaccinated against COVID-19. Court took ‘judicial notice’ of State and Commonwealth recommendations regarding COVID-19 vaccination.

Although the aforementioned cases are ‘pro-vaccination’, each case must be decided on its own particular facts, inclusive of risks pertaining to the actual children involved. As such, where a parent is in a parental dispute concerning vaccination against COVID-19, advice from an experienced family lawyer should be obtained.

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