I want my child to be vaccinated against COVID-19 – but my ex does not agree… What do I do?

On 7 January 2021, the Australian Government announced its national roll-out strategy for the COVID-19 vaccine (when approved) which is broken down into five (5) phases, based on priority as follows:

1. Phase 1A (up to 1.4 million doses) – quarantine workers, frontline health care workers and aged care and disability workers and residents;
2. Phase 1B (up to 14.8 million doses) – elderly adults aged 70 and over, other healthcare workers, Aboriginal and Torres Strait Islander adults aged over 55 years, younger adults with an underlying health condition and critical and high-risk workers (e.g. police, defence, emergency services, etc.)
3. Phase 2A (up to 15.8 million doses) – adults ages 50 years and over, Aboriginal and Torres Strait Islander adults aged over 18 years and other critical and high-risk workers;
4. Phase 2B (up to 16 million doses) – the balance of adult population; and
5. Phase 3 – children and minors under 18 years of age.

On 25 January 2021 the Therapeutic Goods Administration (TGA) announced that it has provisionally approved the Pfizer/BioNTech COVID-19 vaccine for use in Australia and Phase 1A of the roll-out strategy will be begin this month, being February 2021.

At present, the TGA has only approved the vaccine for use in Australia for individuals aged 16 years and over. It is also relevant that minors will be the last portion of the population to qualify for the vaccine in accordance with the Federal Government’s roll-out strategy, which likely means that they will not be eligible to receive the vaccine until late 2021 at the earliest.

Under the strategy children and minors will be the last to receive the COVID-19 vaccine unless they are at high risk. Unsurprisingly, many parents are now asking important questions about the COVID-19 vaccine such as…:

Does my child need the vaccine?

Is it (or will it be) mandatory for daycare / childcare / school?  

What if my child’s mother, father or other parent disagrees?

Decisions relating to the health of a child, including vaccinations, are considered ‘major long term’ issues under the Family Law Act 1975 (Cth). This means that parents of children are required to consult with each other and genuinely attempt to reach agreement about whether or not to have their child or children vaccinated against COVID-19. Parents should consider the best interests of the children when making this important decision and consideration should be given to the requirements of the children’s daycare / childcare / school, the children’s potential exposure to COVID-19 (e.g. if the children are regularly in contact with front-line workers) and any underlying health concerns the children may have when making this important decision. Of course, parents should be guided by the advice of the family’s General Practitioner and any other medical specialists treating the child or children.

If parents are unable to reach agreement as to whether or not to vaccinate their children and have attended compulsory Family Dispute Resolution, then parents may then issue proceedings in the Family Court of Australia or Federal Circuit Court of Australia’s National COVID-19 List to determine the issue. The National COVID-19 List includes as one of the matters which may give rise to an application in that list is “Vaccinations: at the relevant time, there is a dispute about a child being vaccinated against COVID-19.”

Parents should consider that, once approved and available for children, many private daycares, childcares and schools may require all enrolled children to be vaccinated as a condition of enrolment. For public educational institutions public health is a State Government responsibility and in Victoria, the Public Health and Wellbeing Act 2008 (Vic) provides that the Chief Medical Officer can issue a public health order requiring a person to receive a vaccine. However, the question has, again, been raised as to whether this power is limited in scope or provides, in theory, for population-wide compulsory vaccinations, or allows government daycare facilities, kindergartens, primary and secondary schools, and TAFEs with students under 18 years of age, to require vaccination as a pre-condition of enrolment or attendance.

Parents may need to consider whether they are comfortable vaccinating their children against COVID-19 to enable them to continue attending their daycare, childcare or school, or consider alternate options (noting that education is also a major long term issue which must be agreed between parents).

The Federal Government has stated that the vaccine will be made “as mandatory as possible”, it has since been confirmed that it will not mandate the vaccine at this point, noting that it is questionable whether the Commonwealth even has the legislative power in the first place to impose compulsory vaccination on all individuals in Australia, including children. However, it seems clear that the vaccine will be strongly encouraged by both Federal and State Governments, but will not be made compulsory to the greater population of Australians, including children.

For further information, please contact a member of the TLFC family law team on (03) 8600 9333.