Jabs, Jurisdiction and the COVID list

11 APR 2022

 

The ‘Covid list’ is a national court list dedicated to dealing with urgent family law disputes that have arisen as a result of the Covid-19 pandemic.  

The Covid list is tasked with dealing with issues and disputes surrounding the vaccination of children.  While the Court has long heard disputes between parents about a child’s proposed medical treatment or whether they should be vaccinated, the amount of disputes in relation to Covid-19 vaccinations are fast surpassing what was previously seek in the Federal Circuit and Family Court of Australia.     

The ultimate question when determining whether a child should be vaccinated is whether it is in the child’s best interest.   

This question was addressed in the matter of Covington & Covington (2021) HSCASL 179, whichconcerned a mother’s appeal against Orders providing that the parties’ child be vaccinated.   The Mother withdrew the Consent Orders which permitted the child to be vaccinated, arguing that as a result she had not provided her consent.  The Mother also argued that the Court did not have jurisdiction under the Constitution to make an Order requiring her child to be vaccinated. The Court held that receiving the Covid-19 vaccination was in the children’s best interests, and accordingly they dismissed the Mother’s application.  

While this case did not relate to the Covid-19 vaccination, it emphasised that the Court has jurisdiction to make Orders regarding the vaccination status of a child where they deem that it is in the best interest of the child.  

When determining what is in the ‘best interest’ of a child, the Court will consider a number of factors, including: 

  1. Whether a proposed course of action will cause the child to be exposed to physical or psychological harm, family abuse, neglect or otherwise; and, 
  2. The capacity of the parents to make the best decisions for the child, and whether there are any attitudes of the child that should be considered. 

In determining whether receiving a Covid-19 vaccination is in the child’s best interests, the Court will rely on expert evidence to support either proposition.  For parties seeking to oppose their child receiving the Covid-19 vaccination, the difficulty arises when trying to find appropriate and credible experts that are willing to align themselves with more controversial viewpoints.  

In determining the weight to be given to an expert’s evidence, the court will consider the experts background, speciality, training and knowledge as well as whether they have journals published and are peer reviewed.  

In the matter of Palange & Kalhoun [2022] FedFamC2F 149, the Mother proposed the vaccination while the Father opposed it.  The parties evidence was focused on Covid-19 infections, the risk and benefits associated with the vaccinations, risks to the child if unvaccinated, and the mother’s opinion in relation to the psychological benefits of the vaccine. The Court held that the majority this evidence was ‘opinion evidence’, and while this type of evidence is typically non-admissible, it was admitted into evidence by reason of Section 69ZT(1) of the Family Law Act.   The Court held that no weight could be afforded to the parties’ evidence on the basis that they were not medical experts, had no relevant qualifications, were repeating medical opinions, and the experts they had sought to rely upon were not available for cross-examination. 

The Mother also obtained the expert evidence of Dr E in relation to the risk and benefits of the Covid-19 vaccination for children aged 5 to 11 years of age.   The Court held that Dr E’s evidence was admissible pursuant to s 79 of the Evidence Act on the basis that he was an appropriately qualified and highly credible expert.   In making their judgement, the Court gave significant weight to the evidence of Dr E and an Order was made for the child to be vaccinated against Covid-19. 

Case law indicates that the Court will rely heavily on expert evidence when determining what is in the child’s best interest.   When determining who is an appropriate expert witness, consider the following: 

  1. Ensure that evidence is presented in the form of an Affidavit pursuant to the Family Court Rules 2021; 
  2. Ensure the opinion is provided by an appropriate expert who has knowledge and/or specialty in an area relevant to the issue in dispute; and, 
  3. Ensure that the expert is available to be cross-examined at trial for the purpose of challenging their opinion.  

If you are interested in submitting an application to the Covid list, contact Marsdens Law Group to arrange an appointment with one of our family law solicitors.  

* I note that the Covid list hears matters in relation to the range of Covid-19 related issues such as: family violence; travel arrangements and border restriction; supervised contact arrangements; failure to resume time arrangements; and, instances where a party’s employment as a front line health worker has impacted upon their ability to comply with Parenting Orders.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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