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Children – father unsuccessfully appeals order authorising mother to vaccinate child against COVID-19

In Dacombe & Paddison [2021] FedCFamC1A 103 (23 December 2021), Austin J (sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia) summarily dismissed a father’s appeal against a consent order, which authorised the mother to arrange vaccinations of the parties’ daughter.

The court said (from [8]):

“An appeal may be summarily dismissed if the appellant has no reasonable prospect of successfully prosecuting it (s46(2)) [ed. of the Federal Circuit and Family Court of Australia Act 2021 (Cth)], even if it is not hopeless or bound to fail (s46(3)) (…)

[10] The father’s first contention – that he did not consent to the order – is false. …

[11] While it was the legal practitioners who confirmed the parties’ agreement, the father did not demur when the primary judge was informed of the compromise. …

[12] When the primary judge sought to formulate an order to properly reflect the parties’ agreement, the father even helped with the drafting (…)

[14] [The father] … only disagreed with any form of government-imposed immunisation or treatment for the child, but the appealed order did not deal with any form of immunisation or treatment mandated by government because the parties agreed the child should be immunised (…)

[16] … Ground 1 of the father’s appeal depends entirely upon his false contention that he did not consent to the appealed order. He did and now he cannot appeal the order on merit in the teeth of such consent. …

[17] … [Section] 51(xxiiiA) of the Constitution enables the parliament to make laws about the provision of medical and dental services (but not so as to authorize any form of civil conscription) (…)

[21] … [T]he Constitutional impediment only affects the validity of federal legislation which enables the civil conscription of medical and dental services, upon which field the Family Law Act does not play. An order made under the … Family Law Act which ensures a child’s receipt of … medical treatment is not caught by the prohibition (…)”

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 (thefamilylawbook.com.au).

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