As New Zealanders face the challenge of living with Covid-19 in the community and the mandate debate continues, disputes between parents on pandemic related issues are rolling into family lawyers. New Zealand is not alone in this. For some time, Courts overseas have been
grappling with family disputes that have arisen, at least in part, out of the pandemic.
In Australia, the Family Court of Australia has established a special Court list that is dedicated to hearing urgent family law cases that involve pandemic-related disputes. The work of this Court provides a snapshot of the types of family law issues that arise out of the pandemic. We are likely to increasingly see these types of disputes in New Zealand. Those issues include:
disputes between parents about whether a child should receive the Covid-19 vaccine;
where a parent cannot fulfil their parenting obligations due to having Covid-19 or medical complications from it;
travel arrangements where border restrictions impact the child travelling between its parents’ homes;
where supervised contact cannot occur because Covid-19 has meant supervised contact centres are closed or a supervisor is unable to undertake their role;
urgent financial orders being sought to assist one party who is experiencing financial distress due to the pandemic;
where the usual parenting arrangements are impacted by one parent’s decision not to be vaccinated or by their work commitments as a front line worker.
A recent Canadian case considered two of the above issues – whether the parties’ children should be vaccinated and what contact they should have with their unvaccinated father in circumstances where one of the children was immunocompromised.
The Court made an order that meant the children did not have in-person, physical contact with their father. The order permitted generous Zoom contact. The Court had to consider what risks being in father's care posed to the immunocompromised child. The Court also ordered the children could be vaccinated (which father had withheld his consent to). Importantly, the Judge in the Canadian case rejected the "layman's" research that father had undertaken himself about the vaccine in favour of the "sound medical advice of our public health officials". While this case is not binding on the Family Court in New Zealand, it echoes approaches similarly taken in New Zealand in respect to the evidence produced about vaccination.
So, if you are making an application to the Court about vaccination, what evidence will you need to provide to the Court? As in any case involving children, the Court will decide on vaccination disputes based on what it assesses is in the best interests of the particular child in that child’s circumstances. The Court will consider independent medical evidence about the child in question and any particular medical risks that vaccination may pose to that child.
As in any case on any issue, the Court will prefer the “best evidence” available. Where an area of expertise is in issue, It will prefer the evidence of qualified experts on the issue over that of non-experts or information produced from unreliable sources on the internet. The Family Court has previously had to decide disputes about whether the usual scheduled childhood vaccinations should be given to children. Frequently in those cases, a parent has opposed the vaccination of their children but have not produced expert evidence to support their claims. Evidence has been given of what the parent may have read about vaccination on the internet, their religious views or traumas from past family experiences of vaccinations. The Court has preferred the evidence it has from a medical vaccination specialist or of Ministry of Health recommendations. As one Judge stated in a 2020 case, “ I do not accept [WN]’s opposition to the application [to vaccinate]. To do so would make a mockery of science and the place of specialist evidence in Court proceedings.”*
If you are facing a pandemic related parenting issue, you may not always need to go to Court. Mediation and Collaborative Process can assist parents to reach agreement where there is a willingness by them to engage in constructive problem solving, find compromise and understanding. However, in cases where both parents are steadfastly on opposite sides of the vaccination debate, the Court may have to decide the issue.
While it is unclear when this pandemic will end and how it will play out, one thing is certain - the divisions it has created in our country are being played out daily within our families and the Family Court is likely to get lot busier as a result.
* Chief Executive of Oranga Tamariki v WN  NZFC 11597 at .
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