In the case of Dacombe v Paddison [2021] FedCFamC1A 103, the Federal Circuit and Family Court of Australia (FCFCOA) has weighed in on the applicability of Constitutional Prohibitions upon consent orders made under the Family Law Act and revisited the ability to appeal a consent order on the grounds that no consent was given.
On 8 November 2021 consent orders were granted to the mother that enabled her to vaccinate her daughter on the conditions that;
i. The child’s age was within the age groups approved for vaccination by the Commonwealth Department of Health
ii. The ‘Novavax’ Vaccine was approved by the Commonwealth Department of Health and was not going against any medical advice concerning the child; and
iii. In an instance where ‘Novavax’ was not approved, the father of the child reserves the right to select an approved vaccine, except where the father does not decide, the mother is at liberty to select the vaccine.
The father appealed the consent orders on the basis that he never agreed to it and the court did not have the power to make the order according to s 51 (xxiiiA) of the Australian Constitution, which disempowers legislation regarding medical and dental services to the extent that it authorises “any form of civil conscription”.
The Court recognised that “an appeal may be summarily dismissed if the appellant has no reasonable prospect of successfully prosecuting it”. Therefore, the question was whether the grounds of appeal had any prospect of success.
The father’s first ground of appeal, that he did not consent to the order was found to be false, which was confirmed by the initial consent orders hearing whereby the facts state the following;
i. Although it was the legal representatives of both the mother and the father who confirmed the parties’ agreement, the father did not object when the primary judge was informed of the compromise that had been reached.
ii. When the primary judge began formulating an order reflecting the parties’ agreement, the father helped with the drafting.
iii. The father only objected to any form of government-imposed immunisation or treatment of his daughter, but the order did not deal with government mandates of immunisation or treatment because both parties agreed that the child should be immunised.
From the facts, it was clear that the order was made with the father’s consent. Therefore, his ability to appeal the order is subsequently limited.
The father’s second ground of appeal questioned the powers of the Court to make the consent orders, citing s 51 (xxiiiA) of the Australian Constitution which enables federal parliament to create laws regarding medical and dental services but prohibits law-making on these services in any form of civil conscription.
Civil conscription is interpreted to mean legislation that compulsorily orders people to perform medical or dental services. Compulsion is prohibited, but the prohibition does not extend to invalidate legislation that regulates the way these services are performed.
However, it has historically been accepted that provisions of the Family Law Act afford the Court discretionary power to make orders about the medical treatment of children. Additionally, the Constitutional prohibition only affects federal legislation which enables civil conscription of medical and dental services, upon which the Family Law Act does not apply.
In summary, the father’s appeal was summarily dismissed for the following reasons;
- An order made under the Family Law Act ensuring that a child receives certain medical treatment will not be caught by the constitutional prohibition.
- The appealed order binds only the mother and the father, not the child as the recipient of the vaccination, nor the State authorities who administer the vaccine and provide the service of practitioners.
- The order only governs the way the child’s vaccination will occur, since both the mother and the father agreed that the child should be vaccinated. The order does not deal with the occurrence of government mandated treatment or vaccination, to which the father raised objections.
If you find yourself with a family law issue at the present time and require legal advice, contact our Family Law team today.
DISCLAIMER: The information contained in this article is general and is not intended to be advice on any matter. It is for information only and is not legal advice. In the event of a legal problem, you should seek legal advice.
