Dacombe & Paddison
[2021] FedCFamC1A 103
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dacombe & Paddison [2021] FedCFamC1A 103
Appeal from: Order 1 dated 8 November 2021 Appeal number(s): NAA 74 of 2021 File number(s): MLC 4791 of 2019 Judgment of: AUSTIN J Date of judgment: 23 December 2021 Catchwords: FAMILY LAW – APPEAL – Practice and Procedure – Summary dismissal – Consent orders – Where the father appeals against an order made authorising the mother to vaccinate the parties’ child against COVID-19 – Where the proceedings were listed to afford the father an opportunity to submit why the appeal should not be summarily dismissed – Where the father contends he did not consent to the order – Where the transcript reveals the contention is false – Where the father contends the primary judge lacked the statutory power to make the appealed order – Where the provisions of the Family Law Act 1975 (Cth) amply afford the Court discretionary power to make orders about the medical treatment of children – Where the appeal lacks any reasonable prospect of success – Appeal summarily dismissed. Legislation: Australian Constitution s 51(xxiiiA)
Family Law Act 1975 (Cth) ss 45A, 47C
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 46, 69
Federal Court of Australia Act 1976 (Cth) s 31A
Judiciary Act 1903 (Cth) s 40
Cases cited: Allan and Ors & Allan and Ors (2014) FLC 93-606; [2014] FamCAFC 162
British Medical Association v The Commonwealth (1949) 79 CLR 201; [1949] HCA 44
Covington v Covington & Anor, 12 April 2021 per Steward J
General Practitioners Society v The Commonwealth (1980) 145 CLR 532;[1980] HCA 30
P v P (1994) 181 CLR 583; [1994] HCA 20
Secretary, Dept of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218; [1992] HCA 15
Wong v The Commonwealth (2009) 236 CLR 573; [2009] HCA 3
Number of paragraphs: 25 Date of hearing: 23 December 2021 Place: Newcastle via video link The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 74 of 2021
MLC 4791 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DACOMBE
Appellant
AND: MS PADDISON
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
23 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 2 December 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dacombe & Paddison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This appeal is brought by the father from a single order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 8 November 2021, authorising the mother to vaccinate the parties’ child against COVID-19.
The order purports to have been made with the parties’ consent and is expressed in these terms:
1.By consent, the Mother is permitted and authorised to have the child [NAME] born [date] immunised for COVID-19 on the following conditions:-
(a)Vaccination of children of [the child’s] age is approved by the Commonwealth Government Department of Health (“the vaccination recommendation”);
(b) 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;
(c)in the event that the Novavax vaccine is not approved but the Commonwealth Government 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.
No settled reasons were published for the order because the primary judge believed she made the order consensually.
The Notice of Appeal, filed by the father on 2 December 2021, pleads these grounds of appeal:
1.The orders were not made on consent, I never agreed that the court has the power to make this ruling and override a HCA ruling that has been in place since 1949.
3.I refer to Section 51 (xxiiia) of the Australian Constitution 1901. In this section the government is given powers to authorise health services, BUT NOT AS TO FORM ANY PART OF CIVIL CONSCRIPTION.
4.British Medical vs Commonwealth HCA 1949 - the judges in this case found that not only did Civil Conscription refer to doctors and dentists but also to patients.
5.This is a constitutional question and needs to be heard in the High Court of Australia
(As per the original) (Bold emphasis added)
As can be seen, the first ground alleges the order was not made with the father’s consent and the remaining three (misnumbered) grounds appear to contend the primary judge lacked power to make the order.
Given the apparent lack of any reasonable prospect of its success, the appeal was listed today to enable the father to be heard about why the appeal should not be summarily dismissed.
This Court is empowered by the Federal Circuit and Family Court of Australia Act 2021 (Cth) to summarily dismiss unmeritorious appeals (s 46(2)) and, for present purposes, that power may be exercised by a single judge (ss 32(3)(b) and 32(5)).
An appeal may be summarily dismissed if the appellant has no reasonable prospect of successfully prosecuting it (s 46(2)), even if it is not hopeless or bound to fail (s 46(3)), which statutory test replicates those for the summary dismissal of other applications and appeals under federal legislation (ss 45A and 47C of the Family Law Act 1975 (Cth) (“the Family Law Act”); s 31A(2) of the Federal Court of Australia Act 1976 (Cth)).
The question, therefore, is whether the appeal grounds have any reasonable prospect of success.
The father’s first contention – that he did not consent to the order – is false. The transcript reveals the following exchanges during the proceedings before the order was pronounced:
[COUNSEL FOR THE ICL]: … [the father] is not completely opposed to it. He is more – he’s selective about the vaccine that would be appropriate. He, as I understand it, would be agreeable to a vaccine called Novavax.
[THE FATHER]: Novavax and COVAX-19.
…
HER HONOUR: … We’ve then got the COIVD issue but I could hear that on submissions. I am certainly – and I will tell you this now – I am certainly not going to try and work my way to a scientific document that I have no expertise about and I am certainly not going to work my way through statistics that you’ve put in your affidavit. That is not my role. Right. Now, what I am going to look as Government directives if and when they come in with respect to vaccinations for children and I think at the moment they’re not recommending vaccinations for children under 12 years of age. Is that right?
[THE FATHER]: That’s correct, your Honour.
[COUNSEL FOR THE MOTHER]: There’s an announcement today, your Honour, which suggests – announcement from the State Minister for Health that – or Deputy Premier that suggests that that decision is not going to be made for a few months yet.
[THE FATHER]: And, your Honour – excuse me. Sorry, your Honour. That actually might solve the problem completely because, as you know, Novavax have already applied to TGA. They’ve got a interim sort of – they’re looking at their vaccination at the moment and they are assuming that it will be ready by December. It will be available for the Australian population by December and, if that’s the case, then, you know, we’re really only wasting our time if it’s going to take a couple of months for the State Government to announce it anyway and … by December the vaccination is available that I’m comfortable with then there is really no issue, your Honour.
…
HER HONOUR: [To counsel for the mother] can – could there be some compromise on that, that if Novavax is introduced at the time that the Chief Health Officer makes a recommendation that children of a – of [the child’s] age are to be vaccinated that your client would compromise on the vaccination to be chosen?
[COUNSEL FOR THE MOTHER]: She would be happy with what – on my instructing with – what with whatever vaccines are recommending by the appropriate authorities.
…
HER HONOUR: [To counsel for the ICL] can you have a talk to [the father] about the preliminary comments that I’ve made now.
…
[COUNSEL FOR THE ICL]: In relation to the COVID-19 vaccination issue, your Honour, it would appear that that matter has been resolved along the lines of the suggestion that you have given the parties, that is, once the Commonwealth Government approves COVID-19 vaccinations for the five to 11 year olds sector of the community, that the father be at liberty to choose one such vaccination.
HER HONOUR: All right. And what’s your client’s position [to counsel for the mother].
[COUNSEL FOR THE MOTHER]: In terms of the COVID-19 situation, your Honour, if – fine with provided that it’s only one approved vaccine after five year olds have been allowed – five to 11s have been allowed to take it for a month. That it has got to be whatever the Commonwealth Government has approved. …
(Transcript 8 November 2021, p.3 lines 11–15, p.14 line 42 to p.15 line 2, p.15 lines 24–26, p.16 lines 28–40)
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. The father’s consent to the order is plainly inferred from those exchanges during the course of the day.
When the primary judge sought to formulate an order to properly reflect the parties’ agreement, the father even helped with the drafting, as the following portion of the transcript reveals:
[HER HONOUR]: So I’m looking at order 10 of the minute. And this will be expressed to be by consent. The mother is permitted and authorised to have [the child] immunised for COVID-19 on the following conditions. … sorry what’s the name of it again? The – Sorry.
[THE FATHER]: Your Honour, it’s called Novavax.
HER HONOUR: N-o-v-a - - -
[THE FATHER]: A-v-a-x. Novavax. Or any – your Honour, you can also put “or any protein-based vaccine that becomes available”.
HER HONOUR: No, no, I’m not going to have you coming back with arguments about whether something is protein-based or not. All right. I can just see it now.
(Transcript 8 November 2021, p.20 lines 21–36) (Bold emphasis added)
There were other controversial issues to be resolved aside from the child’s vaccination. One such issue was the manner in which she should be tested for COVID-19. The father wanted her subjected to only rapid antigen testing and he objected to the use of a PCR test on her. The primary judge resolved that issue by Order 2, which is not the subject of the appeal. When discussing that aspect of the dispute, the father said this:
HER HONOUR: At the moment, the PCR test is the recommended test and I think that it should be a PCR test. There’s nothing to stop additional rapid antigen testing. In fact, I have bought some rapid antigen tests myself to administer as a supplement, but if she needs a COVID test, at the moment it should be a PCR test unless the government – unless the governmental directives change. And that’s the best that a judge can do with that. All right.
[THE FATHER]: Your Honour, if it please, your Honour, I believe section 51, 23A of the Australian constitution prohibits the government from enforcing any kind of immunisation or any kind of treatment on [the child], so the government’s decision in this shouldn’t really be relevant, in my opinion, your Honour. Like, this should be a factual decision based on medical facts, not on somebody – that somebody has decided that - - -
HER HONOUR: I disagree.
[THE FATHER]: They don’t even show me the facts, your Honour. They don’t even show us the facts. They don’t even share where they’re getting the medical advice from. They don’t. They just – they just do.
HER HONOUR: Well, if you want to take a constitutional point on the authority of the government to legislate and give medical advice during a state of an emergency, that can be your first appeal point for – because I disagree with you.
[THE FATHER] That’s …
HER HONOUR: Okay?
[THE FATHER]: Okay, your Honour. No worries.
(Transcript 8 November 2021, p.18 lines 19–47) (Bold emphasis added)
The father’s interjection at that point should not be construed as an objection, or his withdrawal of consent, to the appealed order. He 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. Order 1 only regulated the conditions under which the child would be immunised, including the vaccine used, and represented the eventual compromise of the parties’ dispute over that narrow issue.
It being clear the appealed order was made with the father’s consent, his ability to appeal from it is limited. As the Full Court said in Allan and Ors & Allan and Ors (2014) FLC 93-606):
63.The fact that an order is made by consent does not, of course, make the order of any different nature from an order made otherwise. The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties. Therefore, save for an important qualification, an order made by consent may be the subject of an appeal in the same way as any other order (see Gilbert v Estate of Gilbert (1990) FLC 92–125 at 77–839).
64.However, the “important qualification” referred to in Gilbert is of present significance: the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party's right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence, or the absence of jurisdiction. So, if by having consented to the orders made by Watts J, Mr Senne could not appeal to challenge the merit of the orders, nor can Mr CC. His substitution for Mr Senne as trustee does not change or enlarge his power.
Here, 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. Nor does the father now contend the appealed order was vitiated by fraud, mistake, fresh evidence, or absence of jurisdiction. He did, however, contend (by the remaining grounds) that the primary judge lacked power to make the appealed order, though that proposition is also demonstrably wrong.
The Constitution of Australia proscribes the legislative power of the federal parliament. Relevantly, s 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) in these terms:
51. Legislative powers of the Parliament.
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:
…
(xxiiiA) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:
(Emphasis added)
The term “civil conscription” in s 51(xxiiiA) is interpreted to mean the legislative compulsion of persons to perform particular medical or dental services, which compulsion is forbidden, but the prohibition does not invalidate legislation which only regulates the manner in which those services, and anything incidental thereto, are performed (Wong v The Commonwealth (2009) 236 CLR 573; General Practitioners Society v The Commonwealth (1980) 145 CLR 532). That formulation of the definition tightened the earlier broader interpretation of the prohibition, used to invalidate federal pharmaceutical legislation directing the manner in which medical practitioners could prescribe medications for patients (British Medical Association v The Commonwealth (1949) 79 CLR 201).
Regardless of its breadth, the concept of “civil conscription” has nothing at all to do with the legislative power to make orders for the vaccination of children (Covington v Covington & Anor, 12 April 2021 per Steward J at [7]-[9]). It has long been accepted that provisions of the Family Law Act amply afford the Court discretionary power to make orders about the medical treatment of children (Secretary, Dept of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218; P v P (1994) 181 CLR 583). The father’s assertion otherwise, in reliance upon British Medical Association, was misconceived.
The father sought to rely upon an affidavit he affirmed on 22 December 2021, setting out the “legal arguments” he perceived favoured his case, which was permitted (Exhibit A). Therein he submitted this:
10.…What is before the Court now is a forced legal, not practical, compulsion and this time directed against the recipients of these medical services (forced vaccination) the patient, at the hands of the State of NSW.
…
19.I draw the courts attention to the distinction between the compulsion to serve and the compulsion to receive the service, the bracketed prohibition applies just as equally to the patient as it does to the doctor.
…
23.…no court order can force any person of sound mind who is able to make his own decisions about his own life ever compel him or her to take any action against their body, and certainly not by an order of any minister of State.
…
77.The Court has no authority to legally compel my child to be vaccinated at all, to undergo a medically invasive procedure, as it is ultra vires its judicial powers. However, it is beyond the judicial powers of this Court, or any other court in the land for that matter, to order my compliance with the health order absent my consent.
78.For the court to proceed beyond its jurisdictional limits and powers would constitute a trespass upon my child’s body.
But the submissions are rejected. First, the 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 certain medical treatment is not caught by the prohibition. Secondly, the appealed order binds only the parties; not the child as the recipient of the medical service, nor the State authorities who provide the service. Thirdly, the parties agreed the child should be vaccinated and the appealed order only governs the manner in which that will occur. Even if they had not agreed, any deadlock in their exercise of parental responsibility for the child over a decision about her vaccination could be broken by an order made under the Family Law Act in the child’s best interests.
The confusion entertained by the father over this issue is evident from the submission he made in these terms:
29.…The situation here is not the improper exercise of federal judicial power, but rather the exercise of State legislative power, by a delegated discretionary power, that is inconsistent and repugnant to a grant of legislative power conferred upon the Commonwealth, s 51(xxiiiA), by the Constitution.
The appealed order was made in exercise of judicial power conferred by a valid federal statute. It had nothing to do with health orders made under NSW public health legislation, which the father claimed to be invalid.
Although the father considers the “constitutional question” about the existence of such power needs to be heard in the High Court of Australia (Ground 5), this Court has no power to transfer the proceedings there. That would take an order made by the High Court made under s 40 of the Judiciary Act 1903 (Cth).
It necessarily follows that the grounds pleaded in this appeal have no reasonable prospect of success and the appeal is therefore summarily dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 23 December 2021
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