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 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Dacombe & Paddison [2021] FedCFamC1A 103
Case: [2021] FedCFamC1A 103
Decision Date

CaseChat Overview and Summary

The father appealed from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 8 November 2021. That order authorised the mother to vaccinate the parties’ child against COVID-19, provided certain conditions were met. The appeal was listed to afford the father an opportunity to submit why the appeal should not be summarily dismissed. The father pleaded four grounds of appeal. The first contended the order was not made with his consent. The remaining three contended the primary judge lacked power to make the appealed order.

The court found the father’s first contention was false. The transcript revealed the father did consent to the order. The father’s remaining contentions were also found to be wrong. The Constitution of Australia enables the federal parliament to make laws about the provision of medical and dental services. However, that power does not authorise civil conscription. Regardless of its breadth, the concept of “civil conscription” has nothing to do with the legislative power to make orders for the vaccination of children. The provisions of the Family Law Act amply afford the Court discretionary power to make orders about the medical treatment of children. The father’s assertions to the contrary were misconceived.

Given the appeal grounds had no reasonable prospect of success, the appeal was summarily dismissed.

Orders