Vaccinate my child - can a court order me to do this ?
with Emily Nugara , Graduate Solicitor Digital Age Lawyers
The outbreak of COVID-19 has brought about a divide in public opinion about a number of things . However , none is more topical then whether one is required to be vaccinated against the virus . This societal issue has made its way to the Federal Circuit and Family Court of Australia , given the most recent rollout of vaccination recommendations for children over five years old . Case 1 : Makinen v Taube [ 2021 ] In the recent case of Makinen v Taube [ 2021 ], the court ruled against a mother who asked for an injunction against vaccinating her children . The children were 12 and eight years of age .
The Family Law Act holds the presumption that both parents of a child / children should have equal shared parental responsibility , meaning that both parents have a say in their child / ren major longterm decisions . This is held unless one parent has a Court Order granting sole parental responsibility .
The father asked the court to grant him sole parental responsibility about immunisation / vaccination of the children . This would allow him to have the children vaccinated without the approval of the mother .
The mother made a counter application asking the court to injunct the father from vaccinating the children . The mother relied
on several factors including the fact that she is the children ’ s primary carer , ( post separation and while the parties were together ) and asserted that her medical research showed if one parent was immune compromised the child of that parent is more likely to have adverse side effects .
The Independent Children ’ s Lawyer relied on recommendations of the Family Consultant as follows :
“ The children not being vaccinated is contrary to the State and Federal Government Health recommendations . Non-vaccinated children and adults can be excluded from services and travel opportunities due to the risk they pose to other people .”
The Court ultimately found that the material the mother was relying on , only noted the potential for side effects , however , ultimately concluded children should be vaccinated . Further , adverse side effects are rare and most people within Australia are vaccinated for COVID-19 and other widespread infectious diseases . This was accepted by the mother in her evidence .
Therefore , the court ruled in the father ’ s favour granting him sole parental responsibility in relation to the children ’ s vaccinations . He was ordered to follow the recommendations of the children ’ s treating GP in relation to whether they should get vaccinated .
The mother was given the opportunity to be consulted and raise concerns she had to the children ’ s GP . However , the father was still given sole parental responsibility as the court found the mother was unlikely to follow expert medical advice .
Case 2 : Covington v Covington ( 2021 )
The case of Covington v Covington ( 2021 ) was a further case that demonstrated the Federal Circuit and Family Court ’ s ability to make rulings on a child ’ s vaccination status .
Similar to the above case , there was a disagreement between the parents as to whether their child should be vaccinated . Orders were made in the Federal Circuit and Family Court that meant the child was to be vaccinated , despite the mother ’ s request for that not to happen .
To facilitate this , the child was to live with the father for a period of time to ensure the mother did not interfere with the vaccination process .
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On appeal to the High Court , the mother argued that the issue of vaccination was not one for the Federal Circuit and Family Court to determine , instead it was a Constitutional issue . According to the mother , the child had a constitutional right to decide whether they wanted to be vaccinated under 51xxiiiA of the Constitution .
The High Court found that the Federal Circuit and Family Court did in fact have jurisdiction to made orders requiring a child to be vaccinated . Further , the section of the Constitution raised by the mother did not apply to vaccinations . Instead , it protected doctors and dentists from being required to administer medical procedures .
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LAW & ORDER
Motor accident claims
with Anthony McDonnell of McDonnell Schroder
When your car , or other property is damaged in a motor vehicle accident , if you are not insured , you have one or two options . You can either :
• Claim payment from the other party and sue if necessary , or
• Pay for your own repairs If the other party in the accident is insured , then you can :
• Make a claim on their insurance policy
• Pay the cost of the repair yourself
• Demand payment from the other party and sue them if necessary
In deciding what to do , an insured
owner should consider a number of issues , including :
• What is the type of insurance policy ?
• How much excess is payable ?
• Will it affect your no-claim bonus ?
• Whether the other person is insured ?
• How the amount for damages they may receive will compare with legal costs ?
If you do have comprehensive insurance , it is generally best to let the insurance company handle an accident claim .
Going to court is expensive . Before suing for damages , it is important to check whether the other party is insured , and if the other party is not insured , whether they can afford to pay damages .
There is no point in paying legal costs then finding that the other person simply cannot pay any damages ordered by the court . If this seems likely , then it may be better for you to claim on your own insurance .
If you need legal advice from a professional , contact McDonnell Schroder on 9622 1155 .
This article is written in a general non-specific manner . Always contact your solicitor for specific legal advice .
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THE HAWKESBURY INDEPENDENT theindependentmagazine . com . au ISSUE 143 // APRIL 2022 19