Since the onset of the Covid-19 pandemic, the Federal Circuit and Family Court of Australia’s (FCFCOA) Covid-19 list has seen a boom in the number of applications made relating to the vaccination of children, whereby parents are unable to come to an agreement. In this article, we discuss the role of the FCFCOA in making Orders regarding a child’s vaccination status where parents are unable to agree, and the extent to which the Courts have the power to make such Orders.

Vaccinations, Family Courts and Covid-19

It has long been accepted that provisions of the Family Law Act afford the Court discretionary power to make orders about the medical treatment of children, including on issues of Vaccination. [1]

Prior to the pandemic, there were many cases relating to traditional vaccines, whereby the Courts made Orders relating to:

  1. the immunisation of children against measles, mumps, rubella, diphtheria, tetanus, as well as a raft of other diseases; [2]
  2. vaccination processes; [3]
  3. the change of residence of children in circumstances where one party is anti-vaccination;
  4. Preventing children from relocating away from their country of residence with the parent that takes an anti-vaccination position; [4]
  5. the use of homeopathic immunisation procedures as opposed to traditional vaccines; [5] and
  6. parental responsible for medical decisions including those relating to vaccination. [6]

All of these decisions were made in circumstances where the Court considered it would be in the best interests of the child/ren involved to be vaccinated. 

Below we look at a recent decision made by the Courts in the matter of Dacombe & Paddison to show how child vaccination matters are treated. 

The case of Dacombe and Paddison

In this matter, the Mother (Paddison) wished for the child to be immunised against COVID-19, to which the Father (Dacombe) did not initially consent to. They eventually reached an agreement via Consent Orders, whereby the mother was granted permission to have the child immunised against COVID-19 on the following conditions:

  1. Vaccination of children of [the child’s] age is approved by the Commonwealth Government’s Department of Health;

  2. In the event that the Novavax vaccine is approved by the Commonwealth Government Department of Health and [the child’s] medical practitioner does not advise against [the child] receiving the Novavax vaccine, she be immunised with the Novavax vaccine;

  3. In the event that the Novavax vaccine is not approved but the Commonwealth Government’s Department of Health recommends immunisation for COVID-19 for children of [the child’s] age, the Father be at liberty to select any of the authorised vaccines PROVIDED ALWAYS THAT he does so within one month of the vaccine recommendation being made, failing which the Mother be at liberty to choose any authorised vaccine.

The Father’s appeal

 Despite Consent Orders being signed, the Father appealed the decision on the Grounds that:

  1. The orders were not made by consent, as the Father did not agree that the Court had the power to make this ruling;
  2. That the Constitution does not provide the government powers to authorise health services; [7] and
  3. The matter was one of a constitutional nature and needed to be addressed by the High Court of Australia. [8]

The Court's findings

In considering the father’s grounds for appeal, the Court found the following:

  1. Given that the Father had consented to the Order, he could no longer appeal the order based on its merits. It was also noted, in reviewing previous Court transcripts, that the Father was clearly informed of the explicit details of the agreement and provided his consent in front of all parties present.

  2. In respect to the government’s power to authorise health services, the Court found that Section 51 of the Constitution allows the government to make laws about “the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances.”

  3. The Court also did not consider the matter to be a constitutional one, and irrespective of that, the Court did not have the power to transfer the proceedings to the High Court and this was something the High Court itself would have to Order.[9]

As such, the Father’s appeal was dismissed by the Court.

What does this tell us about a Court’s powers regarding child vaccination orders?

As can be seen from the above, the Court:

  1. has discretionary power to make orders relating to the medical needs of children, including the issue of immunisation;

  2. will not hesitate to exercise its discretionary power, as can be seen from the numerous cases that established the position prior to the Covid-19 pandemic, as well as the cases arising now following the government authorising the immunisation of children against the Covid-19 virus.

  3. The Court’s power to make Orders in respect of medical procedures for children is not a constitutional issue stemming from s 51(xxiiA).

In summary

Generally speaking, for a Court to consider an argument regarding vaccination, whether it is to have a child vaccinated or to prevent the other parent from having the child vaccinated, the Court will want to hear expert evidence related to that child specifically, and not general information on the vaccine itself or its side effects. This evidence can be obtained from paediatricians who have examined the child, are aware of the child’s medical history, and preferably have a background in paediatric immunology. All decisions made by the Court in these delicate matters are always done in the best interests of the child.

Need advice on child vaccination in a family law matter?

If you require assistance in a family law matter regarding child vaccinations or any other parenting orders, our experienced and friendly Sydney Family Lawyers are here to help. Contact us today on 02 9262 4003 for a confidential discussion or submit an online enquiry.   

If you would like to learn more on vaccination mandates and policies, you might also be interested in our article: “Are mandatory Covid-19 vaccinations in the workplace legal?”

REFERENCES 
[1] Secretary, Dept of Health & Community Services v JWB & SMB (Marion’s Case) [1992] HCA 15; (1992) 175 CLR 218; P v P [1994] HCA 20; (1994) 181 CLR 583.
[2] Mains & Redden [2011] FamCAFC 184.
[3] Kingsford & Kingsford [2012] FamCA 889.
[4] Gerber & Beck [2020]FamCA 210.
[5] Kingsford & Kingsford [2012] FamCA 889.
[6] Howell & Howell [2012] FamCA 903.
[7] Australian Constitution 1901 s51 xxiiia.
[8] Dacombe v Paddison [2021] FedCFamC1A 103 para 4(1-5)
[9] Judiciary Act 1903 (Cth) s 40.
The content of this article is intended as a general guide to the subject matter. For specific legal advice about your individual circumstances, please contact our experienced lawyers.