What Happens When Separated Parents Disagree on Children’s Vaccines?

In the age of COVID-19, vaccinations have become a hot topic of conversation. It is therefore important that parents understand their position with respect to the vaccination of their children – be that a Covid-19 vaccine or otherwise.

Here at Parents Guide Illawarra, we picked the brains of Wollongong’s top Family Lawyers at Access Law Group, to understand what is most likely to happen and, what options parents have.

Access Law Group confirmed that the Court will decide on what is in the best interest of the child/ren.

The recent decision in the case of Makinen & Taube [2021] FCCA 1878 heard by Judge Taglieri, provides a timely reminder that where parents are unable to agree, the Court will decide based on what is in the best interests of the children.

Let’s take a closer look at this particular case.   

Background Facts

1. The mother and father were separated and had two children, aged 8 and 12 years.
2. The children lived with the mother and spent substantial and significant time with the father.
3. The parties had equal shared parental responsibility.
4. The mother and father had resolved all disputes but for the issue of vaccinating the children.
5. The father was supportive of the children being vaccinated according to recommendations made by the children’s treating general practitioner (“GP”).
6. The mother was concerned that vaccinations could adversely affect the children.
7. The father sought orders for Sole Parental Responsibility relating to vaccination of the children.
8. The mother sought to restrain the father from having the children vaccinated.
9. At the time of the hearing, the children had not received any of the vaccinations available to children in Australia.

The Mother’s View

The mother argued that both she and the father should have a say with respect to the vaccination of the children. She argued that the father had not been involved in the children’s health until she and the father had separated and had not previously indicated his views on vaccination. The mother argued that she was the children’s primary carer and otherwise followed medical advice when making medical decisions for the children.

In presenting her argument to the Court, the mother relied on various articles and research that she argued drew a connection between vaccinations and auto-immune, inflammatory or neurological disorders.

The Father’s View

The father argued that the Department of Health endorsed the benefits of vaccination, and it is in the best interests of the children to be vaccinated. The father argued that the Court’s orders should be final with the children’s futures in mind. Considering Covid-19 vaccinations being mandatory for many services and activities, an Order made in favour of the father will avoid future court proceedings between the parties.

The ICL’s View

The Independent Children’s Lawyer (“ICL”) relied upon government publications together with the Family Report. The information relied upon by the ICL stated that the children remaining unvaccinated was contrary to government health recommendations. This may also limit the children’s access to certain services and travel opportunities due to the risk they pose to other people.

The ICL stated that the mother held a firm opinion about vaccinations despite there being no medical evidence to suggest that the children are at an elevated risk of negative vaccine outcomes. As such, the ICL supported the father in being awarded Sole Parental Responsibility for decisions involving vaccination of the children.

Decision

Upon review of all the materials and evidence, Her Honour Judge Taglieri held that while the mother’s attitude against vaccinations was based on her genuine beliefs, they were not reasonable.

Her Honour held that the mother’s views on vaccinations were entrenched and unlikely to be changed even if vaccination of the children was deemed necessary or recommended by a medical professional.

Accordingly, the Court ordered that:

1. The father be allocated Sole Parental Responsibility as to decisions concerning the children’s vaccinations.
2. The father ensures the children be vaccinated according to recommendations made by the children’s treating GP.  
3. The mother be consulted by the father before the children are vaccinated and given the opportunity to raise any concerns with the children’s treating GP.
4. The mother be restrained from providing advice, voicing her opinions, or making statements to the children in relation to vaccinations contrary to the GP’s recommendations.

Our family law solicitors are experienced in representing clients at all stages of parenting matters. If you have any questions about parenting, or any other family law matter, please contact us on 02 4220 7100 or email lawyers@alg.com.au

With our thanks to Access Law Group for contributing and sponsoring this article.

Article Author – Rachael Parr – Family Law Solicitor – Access Law Group.