Co-authored by Isabel Strahan
KEY TAKE-OUTS
- Under the Family Law Act 1975, parents have shared parental responsibility regarding major decisions, including ones that are medical.
- The Court’s recent decision regarding parental disputes around vaccinating children against COVID-19 has been handed down.
- In Palange v Kalhoun, the Court ordered the vaccination of the child as it was found to be in his best interest.
- The case stands as precedent regarding decision making in relation to the administration of the vaccine.
Previously in the blog titled ‘The COVID-19 Vaccine: What to do if both parents don’t agree on vaccinating their child’, we examined the application of shared parental responsibility under the Family Law Act 1975, and in light of the case in Makinen v Taube concluded that in the absence of expert medical advice in relation to the risk of the vaccination outweighing the benefit, it is likely that the Court would order the vaccination of a child against COVID-19.
On 16 February 2022, the case of Palange v Kalhoun was decided in the Federal Circuit and Family Court of Australia. In summary, the mother wanted to vaccinate the child before the recommencement of school however, the father wanted to wait until the long-term side effects of the vaccine were known.
Pursuant to the concept of shared parental responsibility in relation to medical decisions within the Family Law Act, neither parent was entitled to make the decision regarding vaccination unilaterally. Where parents cannot come to an agreement, the Court must consider what is in the best interest of the child and in doing so, will have regard to expert medical evidence. The Court will place significantly more weight to actions that protect the child from physical or psychological harm.
In Palange v Kalhoun, expert medical evidence was given, and it was determined that “while COVID-19 illness is frequently mild in children, the risks associated with infection far outweigh the risks associated with vaccination”.
The Court also considered medical evidence that was specific to the child regarding prior respiratory issues, the increased risk of infection for the child’s siblings, anxiety of the child in relation to COVID and the impact it would have on the child in maintaining a meaningful relationship with his elderly grandparents.
The Court ordered the vaccination of the child against COVID-19, and the case stands as a precedent for future cases heard before the Court. Although shared parental responsibility means that decisions cannot be made unilaterally by a sole parent, if a dispute with similar facts arises, it is likely to have the same outcome.
ABOUT LARA MENON:
Lara joined the Coutts Lawyers & Conveyancers Legal team in August 2018 and is currently working as a Lawyer in our Criminal and Family Law team.
Earlier in 2019, Lara was selected by the NSW Law Society to undertake an internship with the NSW Coroner’s Court, working as a Judge’s Associate for the Deputy State Coroner.
For further information please don’t hesitate to contact:
Lara Menon
Senior Associate
info@couttslegal.com.au
1300 268 887
ABOUT ISABEL STRAHAN:
Isabel joined the Coutts team in January 2022, as a Paralegal working within our Family & Criminal teams. She is currently studying a Bachelor of Laws and Bachelor of Arts, Majoring in International Relations and Minoring in Cultural Studies at the University of Wollongong. It is her dedication and hardworking nature that will see her go far within Coutts.
For further information please don’t hesitate to contact:
Isabel Strahan
Paralegal
info@couttslegal.com.au
1300 268 887
Contact Coutts today.
This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever to this blog, including all or any reliance on this blog or use or application of this blog by you.
