Father Opposes Vaccination of Child
Kafler & Magnan [2022] FedCFamC2F 198 (16 February 2022)
The Father opposes COVID-19 vaccination of his child. On the other hand, the Mother supports the COVID-19 vaccination. The Court, in making final orders, relied upon Family Law Act 1975 (Cth).
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 of the Act applied to the Mother. On 3 March 2021, the substantive applications were heard by Her Honour Judge Carter at an interim hearing. Her Honour ordered all current parenting orders in relation to X suspended; that the Father have professionally supervised time with X, no less than two hours each alternate weekend, at the Father’s expense; that 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; that 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; that 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.
The Independent Children’s Lawyer is of the view that granting the Father’s application may have a detrimental impact on X’s psychological and emotional welfare, particularly at this stage of the proceedings.
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 be reintroduced on an unsupervised basis.
Applicable law:
Family Law Act 1975 (Cth) ss 60CC(2), 60CC(2)(a) - provides that the Court must balance all the risks, including the benefit to the child of having a meaningful relationship with both parents and the need to protect him from physical or psychological harm.
Eaby & Speelman [2015] FamCAFC 104 - provides that as frequently been emphasised in interim parenting proceedings, orders made as a consequence are necessary, but a temporary measure until all evidence can be tested, evaluated and weighted at a final hearing.
Analysis:
The Father does not agree with the current government recommended regime of COVID-19 vaccinations for adults or children. He stated to the Court that it is his view that X is not getting it referring specifically to the COVID-19 vaccination, continuing that under no circumstances will X get the COVID-19 vaccination. The Father is of the view that this is not a vaccine and, instead, a trial or experimental vaccine. He stated that he knows for a fact that the vaccine has little to no effect on the transmission of the virus or the contracting of the virus. There was no evidence provided to the Court to support the submission.
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 Mother attaches to her affidavit, at annexure 4, a letter from X’s treating medical general practitioner, Dr E, who states that X is recommended to receive a vaccination against COVID-19 as per ATAGI guidelines, ideally having one dose prior to returning to school at the end of January.
Conclusion:
The Court orders that until further order the Mother have sole parental responsibility regarding medical decisions, including the COVID-19 vaccine, for X born in 2010. The Mother 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 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.