Medical decision-making, uncertainty and vaccination decisions in family courts in the age of COVID-19

Medical decision-making, uncertainty and vaccination decisions in family courts in the age of COVID-19

19 September 2021 By Michelle Meares and Professor Cameron Stewart
Michelle Meares and Professor Cameron Stewart

In the time of COVID-19, there is considerable public debate about vaccinations. The Australian Technical Advisory Group on Immunisation (ATAGI) has recommended 12- to 15-year-olds be added to Australias COVID-19 vaccination program, wrote Michelle Meares and Professor Cameron Stewart.

Family courts are frequently asked to decide whether a child should be vaccinated when parents cannot agree on the decision. Judges may be asked to make orders about how the vaccination should occur for the child or asked to make injunctions restraining one or both parents from vaccinating the child or children.

Family court judges will likely be asked to determine parent disputes over the COVID vaccinations for children and young people in the near future.

The Family Courts have jurisdiction to determine these matters. Section 67ZC of the Family Law Act 1975 is the basis of the jurisdiction. The best interest test is applied. This is the statutory parens patriae jurisdiction of the Family Court.

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FAMILY LAW ACT 1975 - SECTION 67ZC

Orders relating to welfare of children

(1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.

(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

The primary case on the Australian law of consent to medical treatment and the Court’s jurisdiction to make these decisions is Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion’s case).

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The case was concerned with a 14-year-old girl with cognitive disabilities, Marion, and whether she should undergo a sterilisation procedure. Marion’s parents believed that it would be in her best interests to be sterilised as they were concerned about her ability to deal with menstruation and they were also concerned about the risks of her falling pregnant.

The primary question to decide was whether Marion’s parents had the power to consent to a sterilisation or should such decisions be made by the courts?

Marion’s case established there were some medical procedures which fell outside the scope of parental authority and required the approval of the Court as parens patriae.

It cemented the therapeutic/non-therapeutic distinction as the foundation of the law of consent for children, and it created a shift in the court’s jurisdiction towards the notion that the court had greater power than parents to consent to treatment or functioned as a type of “uber-parent” when exercising parens patriae powers and deciding medical issues for children when the parents can not.

Parents have the power to consent to medical decisions such as vaccination for children (absent any sole parental responsibility orders granting one or other parent sole parental responsibility for those decisions).

The decision to vaccinate a child is a decision in relation to the long-term care, welfare and development of the child and is, therefore, a decision that parents should consult jointly about and make together where possible.

The Family Court has regularly exercised parens patriae powers to make vaccination decisions for children when the parents cannot agree. Expert evidence is critical in those matters. Combative approaches by parents are viewed poorly.

Mains & Redden [2011] FamCAFC 184

In December 2010, Judge Dunkley had made orders that a six-year-old child should be immunised for measles, mumps, rubella, diptheria, tetanus, pertussis, varicella and papilloma pirus. The mother appealed those orders.

The mother opposed immunisation. The father supported it.

The appellant mother sought an order restraining herself and the respondent father from imminently immunising the child and leave to reduce further evidence. The current orders were that the child live with a mother and spend substantial and significant time with the father.

Judge Dunkley at trial had considered all the evidence and concluded it was in the child’s best interests to be vaccinated.

The mother had grave fears the child would become disabled or sick if immunised based on previous reactions of the child and her own reactions as a child to immunisation. The mothers attitude to immunisation was an issue in the proceedings. The mother asserted she was not anti-immunisation.

Previously the parties had consented to a non-immunisation order when the child was one year old.

On appeal, the Court found it was open to the judge on the expert evidence before him to make the decision that he did.

The appellant mother failed on the main grounds of her appeal but she was successful with regards to her application to adduce further expert evidence from two medical practitioners – a paediatrician and a doctor.

Their evidence was focused on the likelihood of the child suffering an adverse vaccination reaction and indicated that it was highly probable this might occur.

The additional expert evidence recommended that further testing of the child should occur prior to the vaccinations being undertaken to identify any underlying disorders and sensitivities.

The respondent also sought to rely on further evidence. Judge Dunkley did not have either of these expert’s evidence available to him and Justice Coleman on Appeal found that the trial judge’s finding that there was an “extremely remote” risk of the child suffering a significant reaction was pivotal to his decision.

Justice Coleman said, “if the further evidence, to which the court has referred if accepted would render erroneous a finding that the risk was extremely remote, the evidence should be admitted and the appeal allowed.”

The Appeals Court determined the matter was determined by the lower Court with something “less than the best expert opinion evidence”.

The Court applied section 93A(2) and the further evidence was admitted. The matter was readmitted for rehearing. Both parties received cost certificates.

Howell & Howell [2012] FamCA 903

The wife in this case was critical of the husband’s religion and expressed concern that it required a very strict adherence to vegetarianism. This included a refusal of vaccination by immunisation, given that process contained animal products.

The parents had agreed on her birth, that the child would not be immunised and, therefore, the parents completed and lodged the necessary conscientious objection forms.

The child has been homoeopathically immunised and the wife actively participated in this procedure, which the husband reported to Dr J was “equivalent to regular immunisation”.

Immunisation remained strongly opposed by the husband and it was contrary to all of his strongly held beliefs including his acceptance of Religion T, vegetarianism, and acceptance of traditional Chinese medicines and a distrust of modern medicine.

The Court made orders for equal shared parental responsibility save for the wife to have sole parental responsibility to make health decisions for the child and considered this to be in the child’s best interests.

Duke-Randall & Randall [2014] FamCA 126

Both parties were unrepresented in this case involving two children. The vaccination dispute was the discrete issue for determination in this case.

There were previous interim parenting orders for the father to have sole parental responsibility, for the children to live with the father and spend no time with the mother (Interim Orders made by consent 13 February 2012).

On 11 March 2013, further Interim Orders were made by consent for the mother to have alternate weekend time and on a without admissions basis, a restraint on both parties from vaccinating the children prior to the immunisation issue being determined. The father sought to be released from those restraints.

The father considered it appropriate and in the best interests of the children that they be vaccinated and/or immunised. The mother sought orders restraining both parties from vaccinating the children without written consent of the other party or order of the Court.

The mother sought to adjourn the proceedings and rely on further expert evidence.

Final orders were made by Justice Foster in the Family Court in Parramatta for the father to be at liberty to immunise/vaccinate the children in accordance with the recommendations of the single expert, Professor K, or in accordance with the recommendations of the children’s treating general practitioner after consultation with Professor K or such other specialist medical practitioner recommended by Professor K.

Kingsford & Kingsford [2012] FamCA 889

This case involved an eight-year-old child. There were prior parenting orders for the child to live with the mother and spend alternate weekends and half school holidays with the father.

The child had been previously received homoeopathic treatments.

The father took the child for traditional vaccinations without the mother’s knowledge or consent. The mother sought orders that the child be homoeopathically immunised by her and that the father, his servants and agents, be restrained by injunction from otherwise immunising the child, or allowing anyone else to do so, without the express written permission of the mother.

Expert evidence before the Court showed the benefits of vaccination outweighed the risks.

The judge was critical of the father and said, “the father’s behaviour in having the child immunised in secret reflects very poorly on his attitude to the responsibilities of parenthood”.

Detailed orders were made for vaccinations to occur.

Rilak & Tsocas (No 8) [2015] FamCa 1235

The issues in dispute in this matter included where the child should live, whether the mother’s time should be supervised, and the extent and manner of her immunisation.

The mother alleged while the matter was part heard that the father had sexually abused the child.

An investigation found this allegation was not substantiated.

The father’s contention was that the child was at grave risk of psychological harm with the mother and this view was supported by the single expert.

In relation to vaccination, the mother sought that the child be immunised under care of a medical doctor in accordance with the modified vaccination protocol to include three doses of Infanrix IPV at two monthy intervals followed by meningococcal vaccine.

The father sought that he be at liberty to arrange for the child to be vaccinated at a hospital in accordance with the recommendations of Dr Y.

The independent children’s lawyer supported the father’s orders.

Expert evidence was received from a number of experts including from a neuroscientist. The Court considered the public benefit of immunisation or herd immunity as a relevant factor.

Orders were made for vaccination of the child as sought by the father and for the father to have sole parental responsibility; the child to live with the father and spend time with the mother to be supervised once per week.

The mother appealed but her appeal was dismissed with costs.

Arranzio & Moss [2015] FamCA 544

The mother had previously been the child’s primary carer. She believed the child suffered from food allergies and food intolerances. The mother had a “conscientious objection to vaccination on the basis of her research and her comparison of risk”.

The only orders sought by any party in respect of the issue of the child’s vaccination were those sought by the mother. The primary injunctive order sought to restrain the father from having the child vaccinated without her written authorisation.

The mother accepted under cross-examination that, irrespective of any scientific evidence put before her, she would never consent to the child being vaccinated. Her position was consistent with that which she maintained since very soon after the child was born.

The Court said that “given that she will never consent to the child being vaccinated, she will never provide the father with written authorisation for this to occur. In such circumstances, the form of her proposed injunction is entirely misleading and illusory – what she really seeks is an order prohibiting the father from having the child immunised. Such an order may be made if, having had regard to the child’s best interests as the paramount consideration, it is considered appropriate for his welfare”.

The recommendation in the family report was that the mother has sole parental responsibility for all major decisions except vaccination and the father to have sole parental responsibility in relation to this major long-term issue of vaccination.

The Court made final orders for the father to have sole parental responsibility and for the child to live with the father and spend four nights a fortnight with the mother and half school holidays.

Gerber & Beck [2020] FamCA 210

This was an international relocation case before Judge Wilson heard in Melbourne involving two children aged two and six years old. The mother alleged the father was an alcoholic and sought supervision of his time. The father denied the allegations.

The father said that the children’s maternal grandmother was “an outspoken anti-vaccination campaigner contending that the immunisation of children is a ploy of the pharmaceutical industry”.

The mother said the children had commenced their vaccination regime. She told the Court that if she was permitted to relocate, the vaccination schedules that were commenced in Melbourne will continue in Country A with the father’s preferred general practitioner, Dr W.

The mother:

a) admitted that in relation to the eldest daughter she and the father assisted in the falsification of an immunisation certificate that purportedly recorded immunisations administered, which immunisations had not been administered;
b) said the father suggested doing that;
c) admitted her own mother was involved on the basis that the mother’s mother found the doctor who was prepared to forge an immunisation certificate; and
d) admitted that the same fraudulent Country A doctor provided a second false immunisation certificate at a time when the eldest daughter was not even in Country A.

The mother admitted to the falsity of the vaccination documentation and she admitted that the information in that documentation falsely represented that the children had been vaccinated when in truth they had not been vaccinated. 

The mother also admitted that she made the wrong decision to expose other children in the children’s community to risks associated with unvaccinated children.

The relevant Country A doctor who engaged in the document falsification was sourced by the maternal grandmother. The father contended that “the evidence of the children’s immunisation in Country A demonstrated that the mother engaged in fraudulent activities with the consequence that she should not be believed when she says that she will promote a positive relationship between the father and the children if she is permitted to relocate to Country A.”

The mother’s relocation application was unsuccessful.

Pieper & Jesberg & Ors [2020] FamCA 989

The Court found that the father’s beliefs were highly conspiratorial in nature and the judge referred to as “whacky”.

Those beliefs include:
a) the earth is flat;
b) the government conceals that we live on a flat earth;
c) the 9/11 disaster in New York, USA was orchestrated by the United States government to excite anti-terrorist sentiment;
d) the 1969 moon landing and all space exploration before and since did not take place and have been staged by governments for the purpose of deceiving the public.

There was an oral application by the mother for sole parental responsibility for immunisation of the children.

At the final hearing, the father denied being opposed to all vaccinations and said that his comments related only to the vaccine for the COVID-19 virus. The Court was unable to accept that was necessarily the case.

Earlier evidence in this case included the father criticising the mother, to the children, for causing or permitting the children to receive usual childhood immunisations without the father’s consent.

The Court ordered that the parents each file and serve evidence in support of their respective positions on immunisation.

Locatelli & Smith [2020] FCWA 198

This case involved a 10-year-old child. The parents had different views on immunisation. The mother failed to participate in the proceedings and questioned the validity of the Court.

In the mother’s minute of orders, she sought “full parental rights”; an injunction restraining the father from vaccinating the child “at all ever” and an injunction restraining any person from doing so.

She sought the existing interim injunction preventing the child from being vaccinated continue. If the child were vaccinated the mother sought damages of $20 million (not surprisingly this order was not made). There had been a dispute at a vaccination clinic in front of the child when taken to be vaccinated.

The father elected not to press issue as the child had become fearful of vaccines. The Court said: “In the absence of any admissible expert evidence, I am unable to make any findings about whether it is in Z’s best interests to be vaccinated, or more general findings as to her health”. (Tyson J)

Essa & Salter [2021] FamCA 22

In this matter before Justice Henderson, the father would not accept the mother’s word that the child had been vaccinated and sought an order from a court that she not only provide details of him being vaccinated, but also who prescribed the vaccination or administered it.

The Court said that the child had been surrounded by a combative atmosphere. The father was a criminal lawyer and the judge said: “It was apparent to me that the father ran his family law proceedings as he would run a criminal trial, leaving no stone unturned, proving his innocence at every point and the mother’s culpability, gathering evidence to prove his point being video recordings, verbal recordings, and witnesses from every walk of life and social situation who may have seen him with the child or he, the mother and the child. B’s needs were somewhat lost at times in this evidence”.

This approach did not assist the father, and the Court found that the father’s approach of “telling the Court, blow by blow, what occurred at every change-over, every communication, every telephone call or attempted telephone call, every attempt by him to extend time, every argument they had about everything, including COVID-19, was distressing in the extreme and merely indicated that he had learnt absolutely nothing from his extensive cross-examination at the initial hearing. He has continued to use his significant power, expertise, and position to harass the mother, to have her do what he wants, and he believes his position is in the child’s best interest."

This did not assist the father and final orders were made for equal shared parental responsibility, and for the child to live with the mother and spend substantial and significant time with the father.

Covington & Covington [2021] FamCAFC 52

This appeal before the Full Court of Family Court was heard by Strickland, Ryan & Aldridge JJ. This particular case was an application to stay an appeal pending determination by the High Court of the mother’s special leave application.

The appellant mother contended that her consent to orders providing for the child to be vaccinated was withdrawn and thus those orders have no legal effect. The mother alleged that in the absence of consent the orders contravene the prohibition on civil conscription provided for in s51(xxiiiA) of the Constitution.

The basis for that withdrawal of consent was said to be that although the orders had been pronounced in court, they had not yet been uploaded to the Commonwealth Courts portal.

The Appeals Court found no merit in these contentions and the application was dismissed.

The mother’s special leave application to the High Court was refused.

The Court gave leave for a representative of the hospital where the child was to be vaccinated to appear on behalf of the B Hospital as amicus curiae at the hearing. The mother had emailed the hospital and stated that if the vaccination of the child proceeded it would constitute an “assault and battery” on the child.

In this case, consent was given to the orders that the child be vaccinated and the order was made on that basis.

The fact that the mother sought to subsequently withdraw her consent did not invalidate the order, or change its binding effect. The Full Court found the mother’s argument had no merit and found that the order for vaccination of the child was an order of the Court which it had the jurisdiction to make.

If parents cannot agree about COVID-19 vaccinations for children

If an agreement cannot be reached, parents can attend mediation or family dispute resolution to attempt to come to an agreement.

The Federal Circuit and Family Court of Australia has a dedicated fast-tracked COVID-19 list and COVID-19 vaccination disputes can be dealt with in this list on an urgent basis.

The article above is a summary of a presentation on 5 August 2021 at the Law Society of New South Wales Specialist Accreditation Conference in the family law stream by Michelle Meares (principal lawyer of Meares Law based at Terrigal on the Central Coast of New South Wales and Councillor of Law Society of NSW/Family Law Committee member) and Professor Cameron Stewart (professor of health law & ethics from University of Sydney) on the issue of medical decision-making, uncertainty, and vaccination decisions.

Medical decision-making, uncertainty and vaccination decisions in family courts in the age of COVID-19
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