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    The Court’s Power to Order Vaccinations for Children

    Aug 26, 2021 12:05:38 PM

    In this COVID-19 climate, opinions in relation to vaccinations are being discussed more than ever in the media and in everyday conversations.

    Research, data and analysis are still developing in relation to the COVID-19 vaccinations, however, Australians are being urged to “get the jab”.

    We are facing unprecedented times and so are the Courts. The Court’s response to these unprecedented times is predominantly through the National COVID-19 List which is dedicated exclusively to urgent family law disputes which have arisen as a result of the COVID-19 pandemic.

    The Family Court of Australia or Federal Circuit Court of Australia have not yet had to deal with a parenting dispute directly relating to whether a child should receive the COVID-19 vaccine, however, it is likely only a matter of time.

    Thus, it is important to know the Court’s powers in relation to vaccinations generally so as to understand the approach that might be taken in this regard.

    The Court has the jurisdiction to make an order providing for a child to be vaccinated. The power to do this comes from section 65 of the Family Law Act 1975 (Cth) (“the Act”) which provides that “the Court can make such parenting order as it thinks proper” or section 67ZC which provides that the Court can “make orders relating to the welfare of children”. In any event, the Court’s paramount consideration is the best interests of the child.

    As recently as April 2021, in the case of Covington v Covington (2021) 63 Fam LR 173 (“Covington”), the Full Court was asked to consider a dispute relating to the vaccination of a child. The vaccine in question was not the COVID-19 vaccine.

    In that case, the mother challenged orders which provided for her child to be vaccinated. The primary judge considered that the vaccination was in the child’s best interests.

    The mother first filed a Notice of Appeal in the Family Court of Australia. Shortly thereafter, the mother filed an application in the High Court of Australia seeking an order removing the appeal to the Family Court of Australia because there was a question involving the interpretation of section 51(xxiiiA) of the Commonwealth Constitution. Further, the mother filed another application in the High Court of Australia seeking an interlocutory injunction restraining the vaccination of the child.

    Section 51(xxiiiA) of the Commonwealth Constitution is as follows:

    The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to … the provision of … medical and dental services (but not so as to authorise any form of civil conscription) …

    It was the mother’s argument that this section of the Commonwealth Constitution conferred a constitutional freedom from compulsory vaccination.

    The High Court of Australia dismissed the mother’s application to restrain the vaccination of the child because it lacked merit and was misconceived.

    The Full Court (Strickland, Ainslie-Wallace & Aldridge JJ) discussed the term “civil conscription” and expressed a view that the mother would need to persuade the High Court of Australia that section 65C and section 67ZC of the Act are caught by the prohibitions found in section 51(xxiiiA) of the Commonwealth Constitution in order to successfully challenge the Court’s power to make an order that a child be vaccinated. The Full Court was not persuaded that the mother could successfully make that submission.

    If you have a parenting issue resulting from COVID-19 or in general, please contact us on (02) 9688 6023 to book a free first conference with our experienced family lawyers.

    This is not legal advice. 

    Isabella Urso

    Written by Isabella Urso