A full legal guide to co-parenting and the child vaccination debate

Are you a co-parent not seeing eye-to-eye with another co-parent on vaccinations?

By Rebecca McLeod, Practice Leader at Watts McCray, Northern Beaches.

Navigating co-parenting post-separation can be a challenging time. More specially, it can be difficult to see eye-to-eye with an ex-partner on big decisions relating to children such as which school a child is to attend, or the major medical treatment they receive. COVID has added another big decision to be made jointly; should your child be vaccinated against COVID?

Keep reading to understand legal advice for this particular situation on co-parenting and vaccination disagreements about your child or children.

What does the law say?

The question of whether a child should be vaccinated is governed by the same principles and law that dictates most parenting matters, that is, whether receiving or not receiving the vaccination is in the child’s best interest.

In determining what is in a child’s best interest, the two primary considerations under the Family Law Act 1975 (Cth) are:

1. The benefit to the child of having a meaningful relationship with both of the child’s parents;
2. The need to protect the child from physical or physiological harm, from being subjected to or exposed to abuse, neglect or family violence.

If in conflict, the need to protect a child from risk from harm outweighs the importance of having a meaningful relationship with both parents.

The additional considerations in assessing a child’s best interests include factors such as:

1. Any views expressed by the child;
2. The nature of the relationship of the child with each of the child’s parents;
3. The extent to which each of the child’s parents has taken the opportunity;
   • to participate in making decisions about major long-term issues in relation to the child; and
   • to spend time with the child; and
   • to communicate with the child.
4. The likely effect of any changes in the child’s circumstances;
5. The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents;
6. The attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents;
7. Any family violence involving the child or a member of the child’s family;
8. Any other fact or circumstance that the court thinks is relevant.

Unless the child has a predisposition to having an adverse reaction to a vaccination endorsed and encouraged by the Government, the Court is likely to find it is in the child’s best interest to receive the vaccination.

Decisions regarding children being vaccinated and other major medical decisions should generally be made by the parents jointly, after consultation with one another and medical and legal professionals if necessary. There is no uniform answer that applies to all children as no two children are the same.

A parent who opposes a child being vaccinated with a vaccination encouraged by the government without good reason to do so (such as the child being likely to have an adverse medical reaction), is at risk of jeopardising the final outcome of their parenting case.

When deciding who the child spends time with, the Court may draw an adverse finding that adopting such a position, if unreasonable, demonstrates the parent is unable to act in a child-focused manner and properly parent the child.

Need assistance navigating discrete parenting issues, including issues such as co-parenting and vaccinations, in a sensitive and child-focused manner? Contact us for further, tailored advice. Click here to get started or request a call back via the form below.