Rise in vaccination disputes hitting the Family Court

The Family Court’s priority COVID-19 list is experiencing a rise in the number of applications involving disputes about vaccination, mostly related to the immunisation of children, and also cases where access to a child has been limited because one parent is unvaccinated.

The list, created in April last year to deal with urgent family law disputes arising from the pandemic, was expanded a year ago in the hope it would help ease delays.

Those with family law matters can submit an application to the list and the court assesses whether they meet the criteria. If deemed suitable, applicants are assigned a court date within three business days if urgent, and seven business days if deemed a priority. Hearings have mostly been done online.

Federal Circuit and Family Court of Australia Chief Justice Will Alstergren said the COVID-19 list allowed the court to embrace digital transformation to improve access to justice. Credit: Eddie Jim

The court has received 680 applications since the COVID-19 list was created (250 in the past 12 months), of which 80 per cent have been accepted and heard within the time frame.

A spokesman said that more recently, the court had experienced a steady rise in the number of claims related to vaccination.

While mostly related to disputes about the vaccination of children, the court has also been presented with situations where one parent has stopped the other from seeing the child because they are unvaccinated.

In disputes involving vaccination, registrars have been requesting expert evidence to determine the applications.

Other common pandemic-related family issues brought before the court this year included cross-border travel (both domestic and international) and the suspension or resumption of parenting orders when a parent was unwell or tested positive.

There were also situations where there was a disagreement or failure to resume time with a child in accordance with parenting orders as restrictions lifted, issues arising from a parent or child needing to isolate, and applications to suspend or resume time when there were concerns regarding exposure to COVID-19.

The Family Court has long struggled with chronic delays. A federal inquiry last year heard that the current average time between the date a family law matter is filed to the commencement of a trial is 18.6 months in the Family Court and 17.5 months in the Federal Circuit Court.

Examples of applications that may be considered suitable for filing in the COVID-19 list

• Family violence: where there has been an escalation or increase in risk due to family violence associated with the COVID-19 pandemic.
• Suspension of parenting orders due to a family violence order: where either parenting orders or a parenting plan have been suspended by an ex parte family violence order made during the COVID-19 pandemic and a party seeks that the court make further parenting orders.
• Medical: the parties cannot fulfil the parenting obligations due to a party and/or child testing positive for COVID-19 or medical complications from having contracted COVID-19, or due to concerns about infection or quarantine requirements.
• Vaccinations: dispute about a child being vaccinated against COVID-19.
• Travel arrangements or border restrictions: the parties live in different states or territories and there are difficulties or anticipated difficulties with the child travelling between the parties’ residences, or a party is planning international travel.
• Urgent or priority financial and maintenance issues: a party is experiencing financial distress related to the impact of COVID-19 and requires urgent court orders, for example, an application for occupation or sale of a property.
• Failure to resume time in accordance with parenting orders or a parenting plan: where parties agreed to suspend parenting orders or a parenting plan due to COVID-19 restrictions, but there has been a failure or refusal to resume compliance with those parenting orders or that parenting plan following the easing of COVID-19 related restrictions.
• COVID-19 related employment: a party is a front-line health worker or engaged in other employment connected with COVID-19 that is impacting parenting arrangements or compliance with orders.
• Supervised contact: the current parenting arrangements involve supervised contact, and the contact centre is closed or the supervisor is unable to perform their role, and the parties cannot agree on an alternative arrangement.

The two courts have since been merged as part of a federal government plan to reduce the delays and improve efficiency. However, the merger, which took place in September, was opposed by peak legal bodies, who said families and judges would suffer and there would be a loss of family law specialisation.

Dr Jacoba Brasch, QC, the president of the Law Council of Australia which was strongly against the merger, said the response of the Family Court to the pandemic had been swift and this agility ensured families in crisis were still able to have their matters progressed at court and that services remained available nationally.

“The establishment of the COVID-19 list to deal with any urgent applications filed as a direct result of the COVID-19 pandemic, particularly those involving family violence, is a good example of this responsiveness by the Family Court,” she said.

“As for the merger, it is too early to tell whether or how the efficiency of the family law system has been impacted by these reforms, although we welcome the many excellent appointments to that court in recent months.”

Federal Circuit and Family Court of Australia Chief Justice Will Alstergren said the COVID-19 list was a world first and was an example of how courts could be innovative in the way they helped people access justice in a timely way.

“It is incumbent upon our courts to provide the best service possible with the available resources. This includes embracing the benefits of a rapid digital transformation to improve access to justice.”

He said often disputes arose in critical moments where urgent hearings were needed by those who were facing risk, were from regional or remote areas, or were trying to deal with distressing circumstances.

The federal government committed $140 million in last year’s budget for courts and the family law system, which included funding for additional senior registrars and registrars to deal with applications on the COVID-19 list.

According to the Australian Institute of Family Studies, only about 3 per cent of separated parents use courts as their main pathway to making parenting arrangements. These are predominantly families affected by family violence, child safety concerns and other complex issues.

Most (97 per cent) separated parents do not go to court to decide their parenting arrangements, although 16 per cent use family dispute resolution services or lawyers.

The courts are open for those involved in family law matters during the holiday period.

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