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COVID-19 Vaccinations For Children

An issue between many separated couples is whether their children should or should not be vaccinated against COVID-19. This specific issue was dealt with before the Federal Circuit and Family Court of Australia (FCFCA) in the decision of Palange & Kalhoun. This article summarises the court’s decision and particularly its comments about COVID-19 vaccinations for children.

Palange & Kalhoun

In Palange & Kalhoun [2022] FedCFamC2F149, the court heard an application where the only matter in issue was whether the parties’ 10 year old should receive COVID-19 vaccinations. The mother sought orders for the child to be vaccinated, whilst the father opposed the vaccination “until any possible long-term side-effects” were known.

Requirement of evidence

The court directed each parent to file any expert evidence that they sought to rely upon. The mother filed an affidavit by “Dr E”, a public health researcher in the area of vaccination, who had a PhD in public health amongst other qualifications. The mother also sought to rely upon brochures and documents published by the World Health Organisation and the Center for Disease Control Prevention.

There was no other expert evidence. The father argued that he could not be expected to provide expert evidence as to unknown side effects.

The expert evidence provided by Dr E and adduced by the mother included a “comparison table” as to the risk of COVID-19 infection of children in vaccinated children compared to unvaccinated children, concluding “While COVID-19 illness is frequently mild in children, the risks associated with infection far outweigh the risks associated with vaccination”.

Admissibility of evidence

Given the evidence and the specific issue in dispute, the court said “Broadly speaking the Evidence Act is designed to ensure: that evidence is adduced and admitted in a manner which is fair; and, that evidence which is relevant is admitted and that evidence that is not relevant is not admitted (ss 55 and 56 Evidence Act); and, that evidence which does not reach a specified standard of reliability is generally not to be admitted… It is clear that each party has given evidence of what various bodies have said, and what is contained in the pamphlets provided, to seek to prove the truth of those statements. Further, much of their evidence is their summary of what they understand and not a direct repetition of the statements made.”

The court further noted that the hearsay exclusion applied to the parties’ evidence of what they say various public health bodies have said, and to the contents of the two pamphlets or articles annexed to the mother’s affidavit.

“…It is clear that the evidence each party has given about COVID-19 infection and COVID-19 vaccination is opinion evidence given for the purpose of proving the existence of a fact about the effects of COVID-19 infection or vaccinations on children and in particular the relative risks and benefits. …Neither the mother nor the father suggested that they had the training, study or experience to give them specialised knowledge or make them experts in any aspect of medicine or public health so that they could give opinion evidence on issues relating to COVID-19 infection or vaccination. …Dr E, on the other hand, has a PhD on the topic on which she has given her opinion. She currently works in the field in which she has given her opinion and her role is to study the area on which she gave an opinion. There was no challenge to Dr E’s expertise. She has set out the material on which she relied on. Dr E was not cross-examined on her opinion evidence. …Although very concise, having considered her opinion I am satisfied that Dr E’s opinion evidence sufficiently satisfies the criteria for admissibility pursuant to s.79 Evidence Act …Thus, unlike the parties’ opinion evidence, Dr E’s opinion evidence is admissible pursuant to the Evidence Act.”

Both parents provided their opinion by way of evidence in relation to the COVID-19 vaccine, however, the court determined that as neither party was an expert or held appropriate qualifications in COVID-19 vaccination and in particular on COVID-19 vaccinations on children that it was not appropriate to give any weight to their opinions on the medical and public health issues associated with COVID-19 or with vaccinations.

The court further relied upon the principles in McGregor & McGregor [2012] FamCAFC 69], about the reliance on articles, and as the authors of the pamphlets were not available to be cross-examined, no weight was given to the pamphlets that the mother sought to rely upon.

However, the court gave substantial weight to Dr E’s evidence as he was a highly qualified and unchallenged expert.  The court held that his evidence was admissible and provided a summary of the relative risks of COVID-19 vaccination as against COVID-19 for children aged between 5-11. It established that there was a clear health benefit to a child aged 10 from being vaccinated against COVID-19, rather than remaining unvaccinated.

Deciding the issue of COVID-19 vaccinations for the child

The court’s role was to “…consider and weigh the relative risk” and take into account the admissible evidence and the individual circumstances of the child, to make a decision as to what course of action was in the child’s best interest.

COVID-19 vaccinations ordered

After considering the above, the court was satisfied that it was in the child’s best interest to be vaccinated against COVID-19 now in order to reduce the risks which, though small, include potentially significant health impacts, rather than waiting and exposing the child to the risks of COVID-19 for an unspecified period of time until any currently unidentified adverse side effects are known.

Therefore, the court ordered the child to be vaccinated with the Pfizer paediatric vaccine.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Sarah Rodrigues - Senior Associate - Canberra

This article was written by Sarah Rodrigues - Senior Associate - Canberra

Sarah Rodrigues holds a Bachelor of Laws from Western Sydney University and a Graduate Diploma of Legal Practice from the College of Law. She was admitted to practice in the Supreme Court of New South Wales in 2015 and is also admitted to practice in the High Court of Australia. Since 2009, Sarah has worked in family law either in...

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