Long before the Covid-19 pandemic, Courts exercising jurisdiction under the Family Law Act were occasionally called upon to resolve disputes between parents about the vaccination of their children. However, the issue of vaccination has become a hotly contested issue for parents since the 10th January 2022 when Australia rolled out its Covid-19 vaccination program for children from the age of five.

You may be reading this article because you have your own views on whether you would like your child vaccinated or not. You may be reading this article because you know that your views differ to that of your co-parent and you are wondering where you legally stand. This article will discuss the leading case and legal position on vaccinations generally. Then, we will discuss recent cases brought before the Court addressing the issue of the COVID-19 vaccination for children.

Childhood vaccinations generally

The leading authority on childhood vaccinations is Covington & Covington  [2020] FamCA 1064, Covington & Covington (No. 2)  [2021] FamCA 24 and Covington & Covington (No. 3) [2021] FamCA 198 (collectively referred to as "Covington"). The case had an unfortunate history, whereby the mother sought to re-open proceedings after final orders had already been made, seeking (amongst other things) an injunction to restrain the commencement of the child's vaccinations. Ultimately, the father otherwise sought a change of residence for the period of the child's vaccination schedule. The mother did not lead any expert evidence supporting her view that vaccinating the child was not in the child's best interest. The father adduced expert evidence from a Consultant Paediatrician and Infectious Diseases physician to the effect that not vaccinating the child would likely expose the child to harm.  The mother was not able to set aside her apprehensions about vaccinations, continuing to actively oppose the program of vaccinations which had been approved by the Court. The mother was so fundamentally opposed to it that she worked the child into a state of near hysteria such that the child refused to go into the father's care in accordance with the final orders. The Court held at 9-10:

"The mother has not confined herself to making applications in various courts, State and Federal. As has been mentioned, she has withheld the child from the father now for several days, and she has admitted in open Court today that she informed the child that the father is intending to have her vaccinated this week. According to text messages sent by the mother to the father, the child has become highly distressed at the prospect of being harmed by vaccination to the point that she is inconsolable, and will not stop sobbing or hugging a bucket.

The mother's actions in this regard may fairly be described as deplorable. They are the very antithesis of child-focused, and they have elevated her own irrational and unscientifically based fears above the best interests of her daughter in circumstances where her daughter is now, quite properly, attending mainstream schooling and has more need for vaccinations than ever."

The evidence before the Court at the trial was that it was very unlikely that the child would have any adverse reaction to being vaccinated. In these circumstances, and Orders having previously been made, the only appropriate course was for the schedule of vaccinations to proceed, as planned, despite the mother's inability to support the process. The mother's conduct was found to be harmful to the child and in that regard, it was necessary for the child to remain in the primary care of the father until her schedule of vaccinations were completed.

The current position on the COVID-19 vaccine for children

With Covington now well established as the leading case on vaccinations generally, what does it mean for a parent bringing a case against the Covid-19 vaccine?

Put simply, the parent against the child receiving the Covid-19 vaccine will need to lead very specific expert evidence from an appropriately qualified medical specialist as to why the vaccine would be harmful to the child, taking into account the child's medical history, current circumstances and contraindications. In absence of precise expert evidence, a parent is unlikely to succeed in their application. As at the date of publication, no parent making a case against the Covid-19 vaccine has succeeded. However, the decisions below tell us what needs to be demonstrated to the Court before a successful application can be considered.

In the case of Makinen & Taube [2021] FCCA 1878, the final hearing focused on the discrete issue of vaccination (including the Covid-19 vaccination), which the mother opposed. Whilst no expert evidence was lead, the mother's case was that she believed standard childhood vaccination programs constituted serious health risks to the children, because she has studied medical literature and research. She argued that according to the literature and research, it is widely accepted that vaccinations can cause serious illness involving auto-immune disorders/disabilities and neurological disorders as noted in the Australian Immunisation Handbook.  The mother further stated that although adverse effects from vaccinations are described as "rare" or "extremely rare" by the Australian government, there is scientific research published around the world which suggests otherwise. The mother argued that the adverse auto-immune or neurological disorders are not rare and that she has not found it to be disproven that a significant proportion of such cases are caused by vaccination.

It was the father's case that the bulk of current medical information supports immunisation and vaccination of children to be in the best interests of their health and because the mother is so vehemently opposed to vaccinations of any kind, it is the father who should have sole parental responsibility in relation to immunisation of the children. Consistent with the ICL's submissions, the father was of the view that the Australian government publications in evidence endorsed the benefits of immunisation and demonstrated that it was in the best interests of the children to be vaccinated.

In closing submissions, counsel for the ICL contended that the decision of the Court depended on an assessment of competing risks and the attitude of the parents to such an assessment.

In the absence of expert medical evidence directed to the particular circumstances of the children, their individual health and condition, including whether they may suffer allergies or autoimmune conditions, the Court was reluctant to make orders in favour of vaccinating the children. However, the Court made orders that the parents were to defer to the recommendations of the children's general practitioner.

In the case of Gable & Pasley [2021] FedCFamC2F 79, the issue of the COVID-19 vaccination was raised by the father after the final hearing and during the period in which judgement was reserved. The father sought to re-open the proceedings seeking to restrain the mother from arranging or facilitating any of the children's vaccinations against COVID-19.

The father's case was that he was not an "anti-vaxxer", that he had not objected to the children's regular childhood vaccinations and that he was regularly vaccinated against influenza. He said that the issue was about the children's safety and nothing to do with any conspiracy or conspiracy allegations. He said his concern was that there was not enough evidence or long-term data to demonstrate that the vaccines were safe for children.

He was of the view that given the children were in good health, there was no need for the vaccine. He was concerned with the degree of risk to the children being vaccinated with what he regarded as untested medicine.

The father sought to rely on data taken from the Therapeutic Australian Government, Department of Health, Therapeutic Goods Administration ('the TGA'), Database of Adverse Events Notifications - Medicines, Medicine Summary for the period between 1 January 2019 and 19 August 2021. In substance the father's case was that that the Court should accept his opinion that there is no proper or proper long term data about the effect of COVID-19 vaccinations on children; and that the Court should infer from the TGA document that there was a real risk of harm to the children if they were vaccinated and in those circumstances, the Court should restrain the mother from permitting, facilitating or arranging the COVID-19 vaccination of the children and do so as a matter of urgency.

The Court took into account and placed significant weight on the circumstance that vaccination is likely to be common place for children at the schools they attend, took into account and placed significant weight of the mother's evidence that the eldest child seeks vaccination, was about to start the HSC and was stressed about the prospect of not getting a COVID-19 vaccine. The Court also took into account that the GP regarded the oldest child as sufficiently mature to determine herself whether or not to be vaccinated

Taking all of those matters into account, the Court was not satisfied on the evidence that there was an unacceptable risk of harm to the children in permitting the mother to make the decision as to the children's health of whether or not to permit, facilitate and arrange the COVID-19 vaccination of the children.

Similarly in the case of Palange & Kalhoun [2022] FedCFamC2F 149, the sole issue for determination was whether it is in the child's best interests to be vaccinated against COVID-19 now, or to wait until there is more information available about any possible long term side-effects of the Pfizer COVID-19 vaccine on children. The mother wanted the child vaccinated in the immediate term. Whilst the father supported vaccination in principle, and the child had completed all of his routine childhood vaccinations, the father did not want the child to be vaccinated until the possible long-term effects of the Pfizer COVID-19 vaccine are known.

In summary, both parties agreed that the child was generally fit and healthy with no underlying health conditions. However, the mother set out the child's history of respiratory disease and contended that this medical history put the child at increased risk of experiencing adverse health effects should he contract COVID-19. There was no evidence before the Court from the child's treating general practitioner, or another medical practitioner, to support the inference the mother sought to be drawn, being that the child is at greater risk than the "average" child from infection of COVID-19. However, the mother lead evidence from Dr E, a medical specialist with a PhD in (Public Health), a Degree in Health Science, a Masters in Clinical Science and a Graduate Certificate in Applied Science. At the time of giving evidence, Dr E was a public health researcher in the area of vaccination, including reviewing and summarising the evidence and safety data of the COVID-19 vaccine for adults and children and comparing the risks associated with COVID-19 infection in children with the risks of adverse reactions associated with the COVID-19 vaccine.

In child related proceedings before the Court, the rules of evidence do not apply unless the Court decides otherwise. The Court decided to admit the parent's hearsay and opinion evidence about what public health bodies have said about the COVID-19 vaccination safety for children, including the articles, as well as the mother's opinion evidence about the child's health and risks.

The Court held at 108-113:

"The parties are not medical or public health experts. They are repeating and summarising what other bodies have said about complex medical and public health issues.

In the absence of any relevant qualifications of either party to give opinion evidence about this complex issue I do not consider it appropriate to give any weight to either of their opinions on the medical and public health issues associated with COVID-19 infection or vaccination.

Similarly, to the extent the mother gave her opinion about medical, psychological and contagion risks specific to the child, she has no expertise to give that evidence on complex medical issues. For the same reasons expressed immediately above I do not consider it appropriate to give any weight to the mother's opinion evidence on these complex medical issues. These are, of course, issues on which the child's treating general practitioner or psychologist, or similarly qualified experts, could have given evidence.

I also give no weight to the pamphlets tendered by the mother."

On the other hand, I give substantial weight to the unchallenged and uncontested evidence of Dr E who is a highly qualified expert. Those opinion were admissible pursuant to section 79 Evidence Act and who provided a summary of the relative risks of COVID-19 vaccination as against COVID-19 for children 5-11.

Further, as noted, the father did not take issue with her evidence to the extent to which she gave it. His concern was with the fact that her opinion does not address the possibility of presently unknown risks arising in the future."

And at 146-151:

"The single issue for determination is whether or not the child should be vaccinated against COVID-19 with the Pfizer paediatric vaccine at this time.

The unchallenged expert evidence establishes that there is a clear health benefit to a child of age 10, such as the child, from being vaccinated against COVID-19, compared with the status quo position of the child remaining unvaccinated.

There being no evidence of a medical basis for exemption from vaccination.

There is nothing about the child's individual health and personal factors which weigh for or against vaccination apart from the issue of the known general reduction of risk of adverse health effects resulting from COVID-19 vaccination.

On the available unchallenged expert evidence 'the risks associated with infection far outweigh the risks associated with vaccination.'

The only reason not to vaccinate the child against COVID-19 now is because of the father's concern that at some unknown future time some unknown side effect will emerge. There is no evidence about the likelihood of that happening, nor of the possible or likely nature of any future adverse side-effects."

Conclusion

If you find yourself disagreeing with your co-parent as to whether your child is vaccinated against COVID-19, there are a number of things you can do:

  • You can defer to the recommendation of your child's medical treaters. They will know your child's medical history and current circumstances the best.
  • Should you not be willing to defer to your child's medical treaters, you still can't reach agreement with your co-parent and you are heavily opposed to the vaccination, then you may need to consider letting the Court decide. However, you will need to lead specific expert evidence from an appropriately qualified medical specialist as to why, based on your child's medical history, it is not in their best interest to be vaccinated. Remember, as at the date of publication, no parent making a case against the vaccination has succeeded and this is largely because they have failed to present expert evidence specific to their child's circumstances.
  • Finally, leading general and broad evidence like government pamphlets and materials, ATAGI and TGA adverse event data, and medical publications in absence of any specific expert evidence is incredibly unlikely to assist you. You will also do yourself (and your child) a disservice by relying on junk pseudo-science and conspiracy theories. Whilst it may be tempting for you to tender all manner and sorts of material you have found online, it will simply not help you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.