The introduction of the Covid-19 vaccine, and the push from the NSW Government for individuals aged 12 and above to be fully protected, has caused debate and discussion in the community. However, on a more personal level this issue can cause divide within the home and may generate issues if the views of parents in a shared parenting arrangement differ on the approach that should be taken in relation to their child.
The recent High Court case of Covington v Covington addressed this issue. The Orders in this case concerned the immunisation and vaccination of the child, stipulating that the parties were to support their child receiving those vaccinations as recommended by their paediatrician. The mother appealed against the orders, opposing the vaccination of her child. She argued that the Family Law Court (what it was then called) only has the power to make a binding order upon the mutual consent of the parties, and, in the absence of mutual consent, an order has no legal effect because it would contravene Section 51(xxiiiA) of the Constitution; a provision that the mother alleged conferred a constitutional freedom of some kind from compulsory vaccination.
The High Court found that the mother’s argument had no merit. The High Court also held that the Family Court of Australia has the jurisdiction to make an order providing for a child to be vaccinated, as per the earlier case of Mains & Redden. The jurisdiction of the Court to do so is not dependant on whether or not the parties’ consent, as Section 65 of the Family Law Act 1975 (Cth) provides that in parenting proceedings, the Court may make such parenting order as it thinks proper and in the best interests of the child.
Navigating a shared parenting situation during the Covid-19 pandemic can be understandably difficult and stressful. For advice specific to your situation, contact our office to speak to one of our Accredited Specialists in Family Law.