Father Opposes Vaccination of Child

Palange & Kalhoun [2022] FedCFamC2F 149 (16 February 2022)

The parties are in dispute over 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.  One parent wants vaccination for current benefits.  The other parent is concerned about unknown possible adverse side effects arising at unknown possible future time.  The Court, in resolving this dispute, balanced the known present benefit of COVID-19 vaccination against known present risk against unknown possible future risks of COVID-19 vaccination.

Facts:

The parties had prior proceedings (SYC3928/2016).  By consent they entered into final parenting orders on 3 June 2019 for equal shared parental responsibility, with their child to live with the mother and to spend substantial and significant time with the father.  The child currently lives with the mother and her partner Mr B, who is a health professional, and his two half siblings C who is three and D who is just four months old.  The child spends substantial time with the father.

His mother wants him to be vaccinated now.  While his father Mr Kalhoun (“the father”) supports vaccination in principle, and child has completed all of his routine childhood vaccinations, the father does not want the child to be vaccinated until the possible long term effects of the Pfizer COVID-19 vaccine are known. The parties had prior proceedings (SYC3928/2016).  By consent they entered into final parenting orders on 3 June 2019 for equal shared parental responsibility, with the child to live with the mother and to spend substantial and significant time with the father.

The parties have equal shared parental responsibility and have not been able to come to an agreed position, the parties have to come before this Court to ask that a Judge determine the issue of whether or not the child should be vaccinated against COVID-19 now, and to make parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).  

The mother sought interim and final orders that the child be vaccinated against COVID-19, in line with current ATAGI (Australian Technical Advisory Group on Immunisation) recommendations.  The father sought orders that the child not be vaccinated against COVID until more studies of adverse affects have been completed. 

Issue:

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.

Applicable law:

Family Law Act 1975 (Cth), Division 12A, Part VII s 69ZT -provides that the court is to give “such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act not applying because of subsection (1).”

Family Law Act 1975 (Cth), Division 12A, Part VII s 69ZX(3) -provides that the court may, in child-related proceedings:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).

Mains v Redden (2011) 46 Fam LR 400; [2011] FamCAFC 184 - involved consideration of whether administering a number of conventional and almost universally administered vaccinations of children against a variety of conditions was in the child’s best interest. 

McGregor & McGregor [2012] FamCAFC 69 - provides that the requirements of s 144(1)(a) limit the potential operation of the section and may only be able to be determined after evidence of “common knowledge” generally, or in “the locality” is received. In practice there would be few issues in respect of which reference to extrinsic materials would not be “reasonably open to question”.

Analysis:

In considering the weight to be given to the parties’ evidence concerning COVID-19 infections and vaccinations, including the pamphlets, the Court noted that this evidence would have been excluded by both the hearsay and opinion rule.

In the absence of any relevant qualifications of either party to give opinion evidence about this complex issue the Court does 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. 

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.  

Both parties evidence was that the child is, in general terms, a fit and healthy child and there is no suggestion that the child would be exempt from vaccination on medical grounds.

The mother says that the child has a history of mild respiratory disease, which she believed would put him at an increased risk of harm as a result of his contracting COVID-19.  However, the issue of whether the child is particularly susceptible to harm from catching COVID-19 by reason of his medical history is an issue on which medical opinion evidence would be required.  

The mother says that the child has suffered anxiety as a consequence of the extended lockdown last year.  The father said in oral submissions that there were a variety of issues involved and that the child’s anxiety commenced when he saw television images of a person falling from a plane during the evacuation at the fall of Country G.

The mother’s evidence does not on its face establish that the child has any current psychological symptoms that have not been treated, nor that it is the absence of COVID-19 vaccination that is causing or contributing to any such problems as opposed to lockdowns and other restrictions. 

There is no material from the child’s treating general practitioner or treating psychologist and no evidence that being vaccinated will assist to reduce any current anxiety he may have.  

There is evidence that due to the mother’s views about the risks the child poses to others she sees as vulnerable, including the maternal grandparents, may effectively reduce the child’s capacity to spend time with his grandparents and other people.  

While the risks of COVID-19 infection to children in this age groups are comparatively low, cumulatively and taking into account the nature of the risks involved, in the Court's view those risks are not trivial.  In particular there are risks of death, of long term health impacts, of the requirement for hospitalisation including in intensive care, and a risk of multisystem inflammatory syndrome, which do not exist to any significant degree in vaccinated children.

Conclusion:

The child X born in 2011 (“X”) is to be vaccinated against COVID-19 with the Pfizer paediatric vaccine in line with the current ATAGI (Australian Technical Advisory Group on Immunisation) recommendations in place from time to time.  If a party seeks costs they may to file an Application in a Proceeding in accordance with the Rules.