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vaccination in children: parental consent and disputes

29 October 2021
carly burgess
Read Time 4 mins reading time

As of 26 October 2021 in Victoria, more than 75% of people over the age of 16 have now received their full COVID-19 vaccination. Recently, the State Government announced that children aged between 12-15 years could also receive the vaccination, if they were able to provide their appropriate consent.

The uptake of the vaccination by children between 12-15 years has been tremendous thus far, but what has been less discussed, is what autonomy we should give (or withhold) to children within this age bracket when it comes to vaccination.

So, what happens if a child wants the vaccination but their parents say no?

The current State Government guidelines provide that people aged 12-17 may provide their own consent, if deemed to be a mature minor by a senior and experienced immuniser. That means that the health professional assesses that you understand the information relevant to the decision to be vaccinated and the effect of that decision.

So, if the child is a mature minor they do not need the consent of one or both of their parents to get the covid vaccine.

what happens in the event the child is not deemed to be a ‘mature minor’ and one of the parents does not consent to the vaccination?

The recent High Court of Australia decision of Covington & Covington discussed issues including vaccinations and examined in detail the Court’s power to make orders in relation to vaccinations. This case progressed through the Federal Circuit Court and Family Court of Australia as well as the High Court of Australia.

It should be noted that the decision was delivered prior to the state’s guidelines to allow for children aged 12-17 to obtain a COVID-19 vaccination.

the facts: a brief summary

  • This was a parenting matter in relation to the parties’ child who was born in 2010 (12 years of age).
  • The proceedings resolved by consent on 3 December 2020. The consent orders provided that the father, Mr Covington would take the child to receive vaccinations as advised by a medical practitioner, and both parties were to support the child in being vaccinated.
  • A few days later, the Mother, Ms Covington advised the court that she was withdrawing her consent to the order for the child to be vaccinated.

the application to set aside the consent orders – 11 december 2020[1]

On 11 December 2020, Justice McEvoy of the Family Court of Australia at Melbourne dismissed the Mother’s Application to stay the orders. Justice McEnvoy made the following orders in relation to the issue of vaccinations for the child, (amongst others):

  • that the father shall be permitted to attend the paediatric appointment and shall take the child with him;
  • unless agreed otherwise in writing, the father will take the child to any vaccination appointment;
  • the Mother be restrained from attending any and all paediatric appointments with a general practitioner for the purposes of having the child immunised or vaccinated.

On 14 January 2021, the Mother filed a further stay application which was heard on 27 January 2021 in the Family Court. Justice McEvoy dismissed the Mother’s stay application on the basis it was likely the mother’s appeal was unlikely to succeed.[2]

On 26 February 2021, the Mother then filed an application in the High Court of Australia regarding s 51(xxiiiA) of the Commonwealth Constitution Act, which forbids the Commonwealth provision of medical dental services, and provides a freedom from compulsory vaccination. In plain English, her position was that the High Court was the appropriate jurisdiction to hear the matter and her application should be removed from the Family Court.

The mother also filed an application to the High Court seeking an injunction restraining the vaccination of the child, pending determination of her application for removal of the appeal to the High Court. This was dismissed by Justice Stewart of the High Court of Australia.

The child was scheduled for the vaccination on 15 April 2021. Given the above events, the Father filed an Application in a Case in the Family Court seeking an urgent hearing.

On 13 April 2021, Orders were made by Justice McEvoy of the Family Court of Australia for the child to live with the father so that the vaccination could be administered.

the full court appeal 16 april 2021[3]

The Full Court dismissed the Mother’s application in an Appeal for the following reasons, amongst other things:

  • The Family Court of Australia has the jurisdiction to make an order providing for a child to be vaccinated.
  • That jurisdiction is not dependent on whether or not the parents’ consent. Under Section 65 of the Family Law Act, the Court has the power to make such parenting order as it thinks proper, and that order can be validly made even if there is no consent between the parents.
  • As for the constitutional point, the Full Court relied on Justice Steward’s judgment and found, “Her contention is not supported by any authority and would appear to have very slim prospects of success.”

is the high court[4] and child vaccination disputes?

The Mother sought special leave to appeal from the Full Court of the Family Court decision delivered on 16 April 2021. It was the Mother’s case that the High Court was the appropriate jurisdiction to hear this case because she said it raised constitutional issues.

The Mother’s application for special leave was refused.

what does the decision mean for child vaccination?

This case highlights that the newly formed Federal Circuit and Family Court of Australia is the appropriate jurisdiction for decisions in relation to vaccinations.

The Full Court was clear on the point that it did not matter that there was previous consent orders and the mother had purportedly withdrawn her consent. The key was that there was an Order from the Court for a vaccination to take place.

The decision highlights that the Court will be guided by what’s in the best interests of the child and make orders accordingly.

If you are in dispute with your former partner about the vaccination status of your child, we recommend that you seek legal advice.

For more information or assistance, please contact Macpherson Kelley’s experienced Private Clients (Family Law) team.

[1] Covington & Covington [2020] FamCA 1064 (11 December 2020) (austlii.edu.au)

[2] Covington & Covington (No. 2) [2021] FamCA 24 (27 January 2021) (austlii.edu.au)

[3] Covington & Covington [2021] FamCAFC 52 (16 April 2021) (austlii.edu.au)

[4] Covington v Covington & Anor [2021] HCASL 179 (9 September 2021) (austlii.edu.au)

stay up to date with our news & insights

vaccination in children: parental consent and disputes

29 October 2021
carly burgess

As of 26 October 2021 in Victoria, more than 75% of people over the age of 16 have now received their full COVID-19 vaccination. Recently, the State Government announced that children aged between 12-15 years could also receive the vaccination, if they were able to provide their appropriate consent.

The uptake of the vaccination by children between 12-15 years has been tremendous thus far, but what has been less discussed, is what autonomy we should give (or withhold) to children within this age bracket when it comes to vaccination.

So, what happens if a child wants the vaccination but their parents say no?

The current State Government guidelines provide that people aged 12-17 may provide their own consent, if deemed to be a mature minor by a senior and experienced immuniser. That means that the health professional assesses that you understand the information relevant to the decision to be vaccinated and the effect of that decision.

So, if the child is a mature minor they do not need the consent of one or both of their parents to get the covid vaccine.

what happens in the event the child is not deemed to be a ‘mature minor’ and one of the parents does not consent to the vaccination?

The recent High Court of Australia decision of Covington & Covington discussed issues including vaccinations and examined in detail the Court’s power to make orders in relation to vaccinations. This case progressed through the Federal Circuit Court and Family Court of Australia as well as the High Court of Australia.

It should be noted that the decision was delivered prior to the state’s guidelines to allow for children aged 12-17 to obtain a COVID-19 vaccination.

the facts: a brief summary

  • This was a parenting matter in relation to the parties’ child who was born in 2010 (12 years of age).
  • The proceedings resolved by consent on 3 December 2020. The consent orders provided that the father, Mr Covington would take the child to receive vaccinations as advised by a medical practitioner, and both parties were to support the child in being vaccinated.
  • A few days later, the Mother, Ms Covington advised the court that she was withdrawing her consent to the order for the child to be vaccinated.

the application to set aside the consent orders – 11 december 2020[1]

On 11 December 2020, Justice McEvoy of the Family Court of Australia at Melbourne dismissed the Mother’s Application to stay the orders. Justice McEnvoy made the following orders in relation to the issue of vaccinations for the child, (amongst others):

  • that the father shall be permitted to attend the paediatric appointment and shall take the child with him;
  • unless agreed otherwise in writing, the father will take the child to any vaccination appointment;
  • the Mother be restrained from attending any and all paediatric appointments with a general practitioner for the purposes of having the child immunised or vaccinated.

On 14 January 2021, the Mother filed a further stay application which was heard on 27 January 2021 in the Family Court. Justice McEvoy dismissed the Mother’s stay application on the basis it was likely the mother’s appeal was unlikely to succeed.[2]

On 26 February 2021, the Mother then filed an application in the High Court of Australia regarding s 51(xxiiiA) of the Commonwealth Constitution Act, which forbids the Commonwealth provision of medical dental services, and provides a freedom from compulsory vaccination. In plain English, her position was that the High Court was the appropriate jurisdiction to hear the matter and her application should be removed from the Family Court.

The mother also filed an application to the High Court seeking an injunction restraining the vaccination of the child, pending determination of her application for removal of the appeal to the High Court. This was dismissed by Justice Stewart of the High Court of Australia.

The child was scheduled for the vaccination on 15 April 2021. Given the above events, the Father filed an Application in a Case in the Family Court seeking an urgent hearing.

On 13 April 2021, Orders were made by Justice McEvoy of the Family Court of Australia for the child to live with the father so that the vaccination could be administered.

the full court appeal 16 april 2021[3]

The Full Court dismissed the Mother’s application in an Appeal for the following reasons, amongst other things:

  • The Family Court of Australia has the jurisdiction to make an order providing for a child to be vaccinated.
  • That jurisdiction is not dependent on whether or not the parents’ consent. Under Section 65 of the Family Law Act, the Court has the power to make such parenting order as it thinks proper, and that order can be validly made even if there is no consent between the parents.
  • As for the constitutional point, the Full Court relied on Justice Steward’s judgment and found, “Her contention is not supported by any authority and would appear to have very slim prospects of success.”

is the high court[4] and child vaccination disputes?

The Mother sought special leave to appeal from the Full Court of the Family Court decision delivered on 16 April 2021. It was the Mother’s case that the High Court was the appropriate jurisdiction to hear this case because she said it raised constitutional issues.

The Mother’s application for special leave was refused.

what does the decision mean for child vaccination?

This case highlights that the newly formed Federal Circuit and Family Court of Australia is the appropriate jurisdiction for decisions in relation to vaccinations.

The Full Court was clear on the point that it did not matter that there was previous consent orders and the mother had purportedly withdrawn her consent. The key was that there was an Order from the Court for a vaccination to take place.

The decision highlights that the Court will be guided by what’s in the best interests of the child and make orders accordingly.

If you are in dispute with your former partner about the vaccination status of your child, we recommend that you seek legal advice.

For more information or assistance, please contact Macpherson Kelley’s experienced Private Clients (Family Law) team.

[1] Covington & Covington [2020] FamCA 1064 (11 December 2020) (austlii.edu.au)

[2] Covington & Covington (No. 2) [2021] FamCA 24 (27 January 2021) (austlii.edu.au)

[3] Covington & Covington [2021] FamCAFC 52 (16 April 2021) (austlii.edu.au)

[4] Covington v Covington & Anor [2021] HCASL 179 (9 September 2021) (austlii.edu.au)