The family lawyers here at Berryman Partners have recently handled a number of parenting matters where one of the key issues in dispute is whether the children shall be vaccinated against COVID-19 or not.
As it turns out, we aren’t alone.
Following the COVID-19 vaccination program’s extension to children aged 5-11 on 10 January 2022, the Federal Circuit and Family Court of Australia (FCFCOA) has experienced a rise in the number of applications made to its specialised National COVID-19 List involving disputes between parents about getting their children vaccinated against the virus.
The National COVID-19 List was established in April 2020 to deal with urgent family law disputes arising in relation to the pandemic. At the time, and for much of the past few years, applications in the list revolved largely around parents failing to comply with court ordered time, where one parent had been exposed to COVID-19/lived in a hotspot, or where parents had taken the opportunity to blame the pandemic for their failure to ensure the children spent time with the other parent.
However, with vaccinations now available for children aged 5 and up, applications are flooding in from parents who cannot agree on whether their children should receive the vaccination. Applications have also arisen where one parent has limited or stopped the children’s time with the other parent because they remain unvaccinated.
In disputes regarding whether children should receive a vaccination or not, Judicial Registrars are largely requesting that expert evidence be provided in order to determine the application. In other words, is there medical evidence as to why, or why not, a child should receive a vaccination?
In order to be considered for the National COVID-19 List, any application must satisfy the following criteria:
- the application has been filed as a direct result of, or in significant connection to, the COVID-19 pandemic;
- the matter is urgent or of a priority nature;
- reasonable attempts have been made to resolve the issue where safe to do so, but were unsuccessful, ie the parties have attempted to negotiate including by participating in mediation; and
- the matter is capable of being dealt with by electronic means.
Given that case numbers in the wake of the Omicron variant are still incredibly high, it seems that the National COVID-19 List will continue to function for some time yet. The Court has provided the following examples of applications that may be considered suitable for the National COVID-19 List:
- Family violence: there has been an escalation or increase in risk due to family violence associated with the COVID-19 pandemic. Examples include (but are not limited to) a breach of a family violence order, a party being charged with a family violence related offences or recent child welfare agency involvement with the family related to family violence concerns.
- Suspension of parenting orders due to a family violence order: where either parenting orders or a parenting plan have been suspended by an ex-parte family violence order made during the COVID-19 pandemic and a party seeks that the Court make further parenting orders.
- Vaccinations: there is a dispute about a child being vaccinated against COVID-19.
- Medical: the parties cannot fulfil the parenting obligations due to a party and/or child testing positive for COVID-19 or medical complications from having contracted COVID-19, or due to concerns about infection or quarantine requirements.
- Travel arrangements or border restrictions: the parties live in different States or Territories and there are difficulties or anticipated difficulties with the child travelling between the parties’ residences, including due to any Government restrictions, or a party is planning international travel.
- Supervised contact: the current parenting arrangements involve supervised contact, and the contact centre is closed or the supervisor is unable to perform their role, and the parties cannot agree on an alternative arrangement.
- Urgent or priority financial and maintenance issues: a party is experiencing financial distress related to the impact of COVID-19 and requires urgent court orders; for example, an application for occupation or sale of a property.
- Failure to resume time in accordance with parenting orders or a parenting plan: where parties agreed to suspend parenting orders or a parenting plan due to COVID-19 restrictions, but there has been a failure or refusal to resume compliance with those parenting orders or that parenting plan following the easing of COVID-19 related restrictions.
- COVID-19 related employment: a party is a front-line health worker or engaged in other employment connected with COVID-19 that is impacting parenting arrangements or compliance with orders.
If you or someone you know is experiencing a parenting issue related to the pandemic, including child vaccination, Contact Us on (02) 4943 3988 to speak with one of our family lawyers. We have years of experience helping people with their family law needs throughout the Newcastle, Lake Macquarie and Hunter region.
This blog was written by Associate,
Jessica Benson
Jessica practises in the areas of Family Law, Wills & Estate Planning,
Deceased Estates and Will disputes
