The mother of a 10-year-old child commenced proceedings under part VII of the Family Law Act 1975, seeking that the father be restrained from causing or permitting the child from receiving any further doses of the vaccination against COVID-19.
In particular, the mother submitted that, while not being against vaccines per se – she is concerned about the safety of COVID-19 vaccines for children, being the vaccine novel and with limited clinical data to support a conclusion that it is sufficiently safe. The father joined the proceedings and submitted that, contrary to the mother’s position, he is concerned about the safety of the child not being vaccinated. In this regard, he added that, while acknowledging that the vaccines may carry risks, the Australian Technical Advisory Group on Immunisation (‘‘ATAGI’’) and other public agencies have already weighed the risks related to the vaccine and ultimately recommended its use also on children.
By decision of 17 August 2022, the Federal Circuit and Family Court of Australia Section ruled in favor of the father and found that the child may receive all vaccinations against COVID-19 as recommended by the ATAGI. The Court first considered that, in accordance with Section 60CA of the Family Act, in deciding whether to make a parenting order, the Court must regard the best interests of the children as the paramount consideration. In particular, Section 43 of the Act sets out the principles to be applied in the exercise of the Court’s jurisdiction and includes, in subsection (1)(c), an obligation to have regard to “the need to protect the rights of children and to promote their welfare.”
With regards to vaccines, based on the evidence submitted before it and ATAGI’s advice, the Court found that (i) clinical trials were conducted prior to the Omicron variant and the results reflect vaccine efficacy against older strains of the virus; (ii) the pediatric vaccine has been demonstrated to reduce COVID-19 in children five to 11 years of age; and (iii) approval of the vaccine is based on results of a clinical trial demonstrating that the vaccine is highly effective and that most side effects are mild and transient.
With regards to potential adverse effects, ATAGI considered that the most common side effects include a sore arm, headaches and fatigue. These usually go away on their own or are treated with over-the-counter medication like paracetamol or ibuprofen. Other dangerous and catastrophic adverse effects can be myocarditis, pericarditis or even death but such events are extremely rare. Hence, the incidence of the child experiencing common and negligible side effects– unlike catastrophic events – is reasonably acceptable. Based on the above, the Court concluded that the child can be vaccinated against COVID-19.