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Covington & Covington: Court Intervention in Child Vaccination?

It is unsurprising that since the introduction of the COVID-19 vaccine in Australia, the topic has caused disputes between separated parents which has required the intervention of the court. In the wake of topical media debate concerning mandatory COVID-19 vaccines, the Full Court of the Family Court of Australia has made an important decision concerning the Court’s authority to make an order that a child be vaccinated, in cases where parents disagree. In Covington & Covington [2021] HCASL 179, the High Court confirmed the correctness of the Full Court of the Family Court’s decision, which emphasised that courts have authority to make an order for the vaccination of a child. 

The case concerned a mother’s appeal against orders requiring the parties to support their child in receiving a vaccination. On 16 April 2021, the case was heard before the Full Court of the Family Court of Australia, where the mother contended that she had withdrawn her consent to orders providing for the child to be vaccinated and that therefore these orders had no legal effect. She contended that per s 51(xxiiA) of the Commonwealth of Australia Constitution Act, her child should be afforded a freedom from mandatory vaccination. Her position was that the Court did not have the jurisdiction under the Constitution to make an order regarding mandatory vaccination. The application in an appeal was opposed by the father and the Independent Children’s Lawyer. The Court held that the mother’s argument had no merit and dismissed the application.

The Court emphasised that it has jurisdiction to make orders concerning the vaccination of a child. This is in part because Section 65 of the Family Law Act 1975 permits the Court to make any parenting order that it deems appropriate. Section 76ZC of the Act also permits the Court to make orders relating to the welfare of children. In any matter involving a child, the Court’s paramount consideration is the best interests of the child. Furthermore, the Family Law Rules allow for a parent to apply to the court for medical procedures to be carried out on a child. Given vaccinations qualify as a medical procedure, the Court therefore has power to decide on issues surrounding vaccinations. Additionally, the Court held that the mother had consented to the original orders from which she sought an appeal, and she could not successfully establish that she had withdrawn consent. 

Subsequently, the case proceeded to the High Court of Australia, where the mother sought special leave to appeal from the whole of the decision of the Family Court of Australia. She also sought leave to amend the application for special leave to appeal. Although the Court granted the application for leave to appeal, the application did not raise any doubt as to the correctness of the Family Court’s decision and was therefore dismissed.

Although this case did not concern the COVID-19 vaccine, it provides useful insight into how the Court may approach parental disputes concerning the COVID-19 vaccine in coming months.

By Nicholes Family Lawyers

 

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