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Father unsuccessfully appeals order allowing mother to vaccinate child against Covid-19

Vaccination and in particular the vaccination of children, has divided our nation. We are now seeing a body of case law coming out of the Federal Circuit and Family Court involving vaccination of children for COVID-19 where their parents are separated.

Author: Rachael Parr

29 March 2022 

In the recent Family Law Parenting case of Dacombe and Paddison, a father unsuccessfully appealed against final Orders made by the Court which authorised the mother to vaccinate the parties’ child against COVID-19.

So, what’s the story here? 

Some Background: 

Orders were made by the Federal Circuit and Family Court of Australia by consent which allowed the mother to vaccinate the child with the Novavax COVID-19 vaccine in the event that the Novavax vaccine were to be approved by Australian medical authorities for the child’s age group.  

The Orders set out that if the Novavax vaccine was not approved in Australia, the father would then be at liberty to select any of the authorised COVID-19 vaccines for the child.  The father failed to select a vaccine and the mother was able to choose a vaccine for the child.

The Father’s Argument on Appeal: 

On appeal, the father argued that he never gave his consent for the Order to be made allowing the mother to vaccinate the child. He argued that the Judge lacked power to make the Order.  The father referred to section 51(xxiiiA) of the Constitution, arguing that the Order imposed a form of “civil conscription” which was unlawful.

Justice Austin’s Decision: 

The appeal Judge found that the concept of civil conscription did not restrain the Court’s power to make Orders about the child’s medical treatment under the Family Law Act 1975 (Cth).  The Judge also found that the mother and father had agreed that the child should be vaccinated and the Order being appealed only governed the manner in which that the vaccination was to occur.

The Court summarily dismissed the father’s appeal.

Want to know more? 

For information about another Family Law case of Makinen & Taube [2021] FCCA 1878 involving vaccination of children, click here

If you have any questions about vaccinations in family law parenting matters, or to seek some general advice about your family law matter, please contact our experienced team of family lawyers at Access Law Group at alg.com.au or call (02) 4220 7100 to book your initial consultation.