COVID-19 – risks of child being vaccinated or remaining unvaccinated favoured neither party’s case…

family law casenotes

…anticipated social and indirect benefits of vaccination

In McGowan & Brennan [2022] FedCFamC2F 1082 (17 August 2022), Judge Eldershaw determined that a nine-year-old child (X) should be vaccinated against COVID-19, where the father sought orders permitting vaccination and the mother sought restraints against vaccination.

The mother relied on adversarial expert Dr B, whose evidence included a conclusion that “there is a statistically or virtually nil risk of serious COVID-19 in general affecting children aged 5 to 11 years … ” ([60]).

The father sought to rely on recommendations of the Australian Technical Advisory Group on Immunisation (ATAGI).

The court said (from [56]):

“ … [T]he existence of the health advice is common knowledge. … [T]he purpose upon which the father relies on the advice pertains to the accuracy or correctness of its substance. The substance of the advice is that of an opinion. (…)

[59] That said;


(a) There is no dispute that the advice of ATAGI and government health advisors is admissible in the proceedings;

(b) Pursuant to s183 of the Evidence Act, I can infer that the documents that have been prepared by … persons who are appropriately qualified …

(c) … [I]t is not necessarily essential, that the information from ATAGI be before the Court through an expert witness; and

(d) This matter concerns an evaluation of risk to a child, for which as much information as possible would assist me in making a decision. … (…)

[92] Dr B cites no benefit to X in obtaining the vaccine …

[93] ATAGI cites benefits of the vaccine which include the corollary of avoiding the risk of the disease and other wider social and/or indirect benefits.


[98] …[T]he risks to X from receiving … and … of not receiving the vaccine, favour neither party’s case, a point of contrast can be identified by reference to the anticipated social and/or indirect benefit to X in being vaccinated. … It is in his best interests that he … avail himself of it. (…)”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (

Share this article

Leave a Reply

Your email address will not be published. Required fields are marked *

Search by keyword