What if we can’t agree on vaccinating our child?

Now that Australians are starting to dip their toes into the brave new world of COVID-19 vaccinations, family lawyers are expecting to see a particular issue in parenting matters raise its head– vaccinating children, and what happens when parents cannot agree.

Whether or not a child is vaccinated is a major, long term parenting decision and falls within the scope of ‘parental responsibility’ under the Family Law Act. If you and the other parent really cannot agree on what, if any, vaccinations you are going to give your children, you can ask the Court to step in to make that decision for both of you.

In the recent case of Covington & Covington (2021) FLC 94-014, the Mother had consented to an order allowing their daughter to be vaccinated but tried to withdraw her consent a few days later. She filed an appeal, arguing that the Australian Constitution prohibited the Family Court from making Orders for a child to be vaccinated and that any doctor administering the vaccination would be committing an assault against their child. In dismissing her appeal, the Court held that it is well settled that the Family Court does in fact have the power to make Orders about vaccinations, both by consent and without the consent of one parent. Each matter turns on its own facts, and in this particular case, the fact that the mother changed her mind later was not a proper basis for the Court to change the original Order.

If you do find yourself in this situation, you should seek specialist family law advice before taking any steps. There is no ‘one size fits all solution when parents disagree about vaccinations. It is a complex area, and any application to the Court seeking orders about vaccinations must properly address the advantages and disadvantages of vaccinating or not vaccinating your child, not just children generally. Evidence about your child’s personal medical history and circumstances must be put forward along with expert evidence from medical specialists who are appropriately qualified to give that evidence.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

5 Things You Need To Know About Surrogacy

1. Commercial surrogacy is not permitted in Australia.

Although each state has different laws relating to surrogacy arrangements, there is one consistent theme throughout Australia. Commercial surrogacy is not permitted in Australia, and any surrogacy arrangement must be altruistic. This means that one party cannot bargain with another party in order to persuade them to become a birth parent.

In some states, a birth parent may be entitled to be reimbursed certain expenses which they incur as a result of the pregnancy, such as medical expenses.

2. Surrogacy laws vary from state to state.

There is no uniform national legislation in relation to surrogacy arrangements in Australia. This means that the laws relating to surrogacy vary state to state. Accordingly, it is necessary for you to receive specialist advice which is tailored to where the child of a surrogacy arrangement will be born.

3. It is necessary for a person entering a surrogacy agreement to obtain legal advice and also independent counselling.

To ensure that each party entering into a surrogacy agreement is emotionally equipped to do so counselling is required.

Thereafter, and prior to entering into a surrogacy arrangement, each party must obtain independent legal advice regarding the surrogacy arrangement to understand the associated risks and processes.

4. Surrogacy arrangements are not enforceable.

Surrogacy arrangements are not enforceable in Australia. They are however evidence of each party’s intention that a biological parent may not ultimately be the legal parent of a child born of a surrogacy arrangement. In some states, surrogacy arrangements may be able to be enforced in relation to the reimbursement of any expenses, such as medical expenses, which a birth parent has incurred as a result of the pregnancy/birth.

5. After a child of a surrogacy arrangement is born, you may not be the legal parent.

There are complex presumptions which apply in relation to parentage in Australia. A birth mother is considered to be a legal parent until the making of a Parentage Order by a Court, as envisaged by a surrogacy arrangement.

There is also a presumption that any person who is married to, or in a de facto relationship with, the birth parent is also a legal parent of a child born of a surrogacy arrangement.

If you are considering a surrogate, or have been asked to be a birth parent, it is important to obtain independent legal advice to fully understand your options and position at law. Please contact one of our family law specialists in Canberra on (02) 6225 7040 to make an appointment.