Parents in Dispute Over their Child's Vaccination
Kafler & Magnan [2022] FedCFamC2F 198 (16 February 2022)
The parties are in dispute over their child's vaccination. The Father opposes COVID-19 vaccination. The Mother supports COVID-19 vaccination. The Court, in making its final parenting orders, took into consideration the best interests of the child.
Facts:
The Applicant Mother filed an Application in a proceeding on 10 February 2022. Her Application was supported by an affidavit filed 10 February 2022. The Mother is seeking to have X vaccinated with the COVID-19 vaccination and she also seeks an order pursuant to section 102NA of the Act. The Respondent Father filed a Response to an application in a proceeding on 15 February 2022. His Application was supported by an affidavit filed 15 February 2022.
The Father is seeking that he be permitted to commence unsupervised telephone communication and written communication with X. He also opposes any order allowing X to be vaccinated with the COVID-19 vaccination. It was the view of the Independent Children’s Lawyer that the Mother should be permitted to have X vaccinated with the COVID-19 vaccine and there should be no orders to allow the Father having unsupervised telephone or written communication with the Father. Judge Carter made an order on the day following a contested hearing that the requirements of section 102NA Mandatory protections for parties in certain cases
applied to the Mother.
Her Honour made orders that all current parenting orders in relation to X be suspended; the Father have professionally supervised time with X, no less than two hours each alternate weekend, at the Father’s expense; the parents do all such things necessary to engage a psychologist to work with X, such psychologist to be nominated by the Independent Children’s Lawyer; the Mother shall do all things to obtain a mental health treatment plan for referral to Mr B, psychologist, for the purpose of conducting family therapy. The Father was to pay the costs of the family therapy; the Father was to obtain a report from the family therapist at his expense; and there were various other restraints, including non-denigration, belittling, criticising or otherwise speaking negatively about the other parent within the hearing of X.
On 2 June 2021, an order was made listing the matter for final hearing on 30 March 2022. It was noted at that time that the Father had not exercised supervised time as had previously been ordered on 3 March 2021. On 4 August 2021, an order was made listing the matter for directions on a date to be fixed, with a request from Her Honour Judge Kari (as she was known then) that consideration be given to listing the matter on an undefended basis in circumstances where there was continued non-compliance with orders of the Court by the Father. Her Honour noted that the Father has not complied with orders for spending time with X first made on 3 March 2021.
Issues:
I. Whether or not the Mother should be permitted to allow X to receive the COVID-19 vaccination.
II. Whether or not the Father’s telephone and written communication with X should be reintroduced on an unsupervised basis.
Applicable law:
Family Law Act 1975 (Cth) ss 60CC - provides that the Court must balance all the risks, including the benefit to the child pursuant to section 60CC(2) of the Act of having a meaningful relationship with both parents and the need to protect him from physical or psychological harm.
Analysis:
The father was of the view that the children’s strong immune system was sufficient to prevent any transmission or contracting of the virus should such a virus even exist. The Mother’s position is that the eligibility of children five to 11 years of age has been approved by the appropriate government organisations for safe administering to children. The Mother states that she seeks to have X vaccinated to mitigate any serious illness should he contract COVID-19.
The Court raised with the parties that one option for dealing with this controversy between the parents was for one parent to have sole parental responsibility for medical matters, inclusive of the COVID-19 vaccination. The Father did not support such an order being made. The Mother and the Independent Children’s Lawyer supported such an order being made. The Court is of the view that the protection of X from potential physical harm as presented by COVID-19 and potential emotional or psychological harm if allowing the Father’s Application to succeed is provided for by the orders that the Court makes.
Conclusion:
Until further order the Mother has sole parental responsibility regarding medical decisions, including the COVID-19 vaccine, for X born in 2010. The Mother be and is hereby authorised to provide a copy of these orders to any medical general practitioner or other vaccination provider. The Application in a Proceeding filed by Ms Kafler on 10 February 2022 be and is hereby dismissed. The Response to an Application in a Proceeding filed by Mr Magnan on 15 February 2022 be and is hereby dismissed. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
