Ingate & Swinton
[2022] FedCFamC1F 222
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ingate & Swinton [2022] FedCFamC1F 222
File number(s): MLC 7467 of 2017 Judgment of: STRUM J Date of judgment: 9 March 2022 Catchwords: FAMILY LAW – CHILDREN – Medical procedures – COVID-19 vaccination – Where the applicant mother seeks to have the child vaccinated against the COVID-19 virus – Where the respondent father opposes – Where the father contends that the Court does not have jurisdiction to make orders in relation to the vaccination of the child without the consent of both parents – Where it was found that the Court does have jurisdiction – Where orders were made for the mother to have sole parental responsibility in relation to vaccination.
FAMILY LAW – COSTS – where the mother sought costs incidental to her application – Where the father resists an order for costs – Where the father was wholly unsuccessful – Where the father was ordered to pay the mothers costs at scale.
Legislation: Commonwealth of Australia Constitution Act ss 51(xxii), 51(xxiiiA), 76
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61D, 64B, 65AA, 65D, 117
Federal Circuit and Family Court of Australia (Family Law Rules) 2021 rr 2.13, 2.18
Judiciary Act 1903 (Cth) ss 40, 78B
Cases cited: Covington & Covington [2021] FLC 94-014; [2021] FamCAFC 52
Covington v Covington & Anor [2021] HCASL 179
Dacombe & Paddison, [2021] FedCFamC1A 103
Kingsford & Kingsford [2012] FamCA 889
P & P (1994) 181 CLR 583; [1994] HCA 20
Secretary, Department of Health and Community Services v JWB and SMS (“Marion’s Case”) (1992) 175 CLR 218; [1992] HCA 15
Division: Division 1 First Instance Number of paragraphs: 80 Date of hearing: 9 March 2022 Place: Melbourne, via Microsoft Teams Counsel for the Applicant: Ms Fisken Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: The Respondent appeared in person Counsel for the Independent Children’s Lawyer Ms Agresta Solicitor for the Independent Children's Lawyer: Creative Family Law Solutions ORDERS
MLC 7467 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SWINTON
Applicant
AND: MR INGATE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRUM J
DATE OF ORDER:
9 MARCH 2022
THE COURT ORDERS THAT:
1.The Respondent Father have leave to make an oral application for a stay of the Mother’s Application in a Proceeding filed 17 February 2022.
2.The Respondent Father’s oral application for a stay be dismissed.
3.The Applicant Mother have sole parental responsibility for all decisions relating to immunisation and vaccination against Covid-19 for the child X born in 2013 (“the child”),
And for the avoidance of doubt, the Mother be solely authorised to facilitate for the child to receive a first and second dose of a Covid-19 vaccine as recommended by the child’s treating medical practitioner, Dr B, or any other medical practitioner or pharmacist upon whom the child attends who is authorised to administer the Covid-19 vaccine, in such dose and such frequency as recommended by the medical practitioner or pharmacist, and any such further booster shot/s as recommended, and the consent of the Father will not be required by the practitioner or pharmacist administering the vaccine.
4.The Applicant Mother advise the Respondent Father through the Our Family Wizard App of the date of any appointment made by her with the child’s treating medical practitioner, or any other medical practitioner or pharmacist qualified to administer the vaccination, for the administration of the first and second dose of the Covid-19 vaccination for the child and any subsequent booster shot/s as may be recommended by the medical practitioner or the pharmacist administering the vaccine.
5.The Applicant Mother provide the Respondent Father with a copy of the child’s vaccination certificate if requested.
6.The Applicant Mother be at liberty to provide a copy of these orders to Dr B at D Medical Centre or any other medical practitioner or pharmacist authorised to administer the Covid-19 vaccine.
7.The costs of the Independent Children’s Lawyer for the hearings on 7 and 9 March 2022 be reserved.
8.The Respondent Father pay the Applicant Mother’s costs for Counsel at scale for the hearings on 7 and 9 March 2022, fixed in the sum of $2,500.
AND THE COURT NOTES THAT:
9.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ingate & Swinton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORESTRUM J:
These proceedings relate to the child of the relationship of the applicant mother and the respondent father, X, born in 2013 ("the child"), who is soon to be aged nine years. The proceedings before me today involve an Application in a Proceeding filed by the mother on 18 February 2022 in which she sought, in summary:
(a)Orders relating to immunisation and vaccination against COVID-19 for the child; and
(b)Orders providing for the referral of the child to a paediatrician.
She does not today pursue the order in relation to the paediatrician, and all parties are content for that issue to await trial before me.
The orders that I made on 11 February 2022 provided for the mother to file an Application in a Proceeding and for the father to file a Response thereto. On one view, no order was strictly necessary for the father to file a Response, for that is his obligation under the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 ("the Rules"). Nevertheless, he has filed no Response either to the relief sought by the mother or seeking other relief or objecting to jurisdiction (as he says he does) as required by rule 2.18 of the Rules and emphasised by my orders made on 11 February. The vaccination issue is not a new issue. It first arose in the mother's further amended Initiating Application filed on 30 December 2021 for a trial which was listed on 31 January this year.
In his amended Response to Initiating Application, which he filed on 17 January this year, the father sought final orders for equal shared parental responsibility and an order that the parents "communicate with each other prior to any medical consultation or treatment, unless in the event of an emergency". The mother, in her written submissions before me today, points out that in the father's trial affidavit, similarly filed on 17 January this year, at paragraph [148] he deposed, relevantly, as follows:
… I am not against having [X] vaccinated. The decision to have [X] vaccination [sic] should be informed and consented by both parents. I am not personally against vaccinations and have had vaccinations in the past. [X] has received childhood vaccinations.
I note that the father, when he filed his amended Response to Initiating Application and his trial affidavit, both of which I have just referred to, was legally represented and those documents were filed on his behalf by the solicitors who acted for him on that date. When the matter came before her Honour Judge Boymal for trial on 31 January 2022, amongst the orders her Honour made, was an order that the matter be transferred to Division 1 of this Court on a date to be advised. There were several notations to her Honour's orders, including reasons why the matter was transferred to Division 1, one of which was the dispute as to parental responsibility. Her Honour also noted that the mother seeks sole parental responsibility in relation to health. There were two further notations made by Judge Boymal. At Notation C, her Honour stated as follows:
It is requested an interim hearing date be allocated in 2 – 3 weeks for the determination of two discrete issues, namely, whether the child will be referred to a paediatrician within [E Hospital] Gender Service, or alternatively, a private paediatrician, and whether the child should receive a Pfizer COVID-19 vaccination.
The next notation stated:
It is asserted by the mother and the Independent Children's Lawyer that these issues need resolution very promptly.
At the very least, by 31 January 2022, the father was aware that this was an issue and that it was one that, if possible, would be determined within two to three weeks of that date. The matter was put into my docket and, for reasons of availability, I was unable to accommodate it before Monday of this week. The father himself put in issue consent to vaccination on 17 January this year, in his trial affidavit. He has not sought to resile from that evidence and, in fact, he was on notice that the mother would be relying upon his admission in paragraph [148] upon receipt of her written submissions last week. Thereafter, he was aware that it was an issue, and said to be an issue of urgency, on 31 January of this year.
The matter came before me on 11 February, for a trial management hearing, where the father flagged issues relating to consent. The matter was again before me last week, on Thursday, 3 March, for mention and it was listed before me on Monday, 7 March 2022 for hearing. On that day, the father produced a medical certificate and the matter was adjourned to today. Insofar as the father sought a stay of these proceedings, he did so after Ms Fisken of Counsel's submissions in support of her client's application had closed. It was an application that was made without notice. I told him on Thursday, 3 March that if he sought to stay these proceedings, he should make an application, or that if he sought a writ of prohibition against me in the High Court, by reason of an application that he has apparently made pursuant to section 40(1) of the Judiciary Act 1903 (Cth), he could do so.
He did neither of those things. Rather, after the close of Ms Fisken's submissions for the mother, and having heard that Ms Agresta of Counsel, for the Independent Children's Lawyer ("ICL"), supported the mother's position, in the course of his submissions, the father sought that the proceedings not continue before me today, alleging that there was a new issue, namely, that of consent. That is manifestly not the case. An unsealed copy of an application that he purportedly filed in the High Court was forwarded to my chambers on 11 February made it abundantly clear that the issue of consent was fairly and squarely put in issue by him at least by that date, if not earlier, for the reasons that I have given. Any sealed copy of that application is not in evidence. However, in circumstances where he is self-represented, I gave him leave to make an oral application for a stay. Having heard his submissions and the foundation supposedly grounding them, I dismissed that oral application because it is not, in fact, a new issue at all.
In relation to the father's apparent application to the High Court of Australia, on 23 February this year he filed an affidavit in this Court in which he deposed that he had filed such an application. He did not exhibit it to his affidavit. On the evidence before me, I do not even know whether it has been accepted for filing or not.
Section 40(1) of the Judiciary Act relevantly provides as follows:
Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a federal court other than the High Court or in a court of a State or Territory may, at any stage of the proceedings before final judgment, be removed into the High Court under an order of the High Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit…
I sought to understand from the father on 11 February, at the mention before me on 3 March and again today how it is said by him, albeit a litigant in person, that this cause arises under the Constitution or involves its interpretation. I have been taken to various sections by the father. He referred me to section 76(ii) and, in his affidavit filed on 23 February 2022, he refers to section 51(xxii). He made no submissions in support of that contention today.
When I pressed him about this today, the father boldly asserted that he was being bullied. When I asked him by whom he asserted he was being bullied, he said it was by me. No application flowed from that. I sought to explain to the father that, if I was interrupting his submissions, it was only to do justice to him, in an endeavour to understand his submissions and explore them with him, and for no other reason. I have made it perfectly clear to all the parties, as early as the mention on 11 February, that I will decide this case on the evidence and on the law applicable thereto.
The mother has filed an affidavit by her and an affidavit of the child's treating general medical practitioner. The father has not filed any evidence going to the issue of vaccination. He has merely filed an affidavit deposing to his apparent application under section 40 of the Judiciary Act and asserting that he was aware of the issue of consent as early as 23 February. However, for the reasons that I have given, he was clearly aware of it earlier than that.
The father made an implicit criticism of me for saying on 11 February that this case was not about the "vibe" of the Constitution. I do not resile from that comment. It was made in the context of me asking him, a number of times that day, upon which section of the Constitution he relied upon or what was the interpretation of the Constitution in issue in this aspect of the proceeding. He could not point on that occasion to a single section of the Constitution, notwithstanding I asked him on a number of occasions that day. It was in that context that I informed the father that it was not about the "vibe" of the Constitution. Constitutional issues are serious matters and must be properly enunciated. That has not occurred in this case.
Whilst I allowed the father to make submissions as a matter of procedural fairness to him, his application is strictly unopposed, in the sense that he has not filed a Response to an Application in a Proceeding, as required by Rules, and as required by the orders that previously made. Further, there is no contradictory evidence adduced by the father to suggest why vaccination might not be in X's best interests.
Again, on 11 February, I told all parties that I would decide the matter on the evidence and I made orders providing for affidavits to be filed. The mother has done that. The father has chosen not to do so. The mother and the ICL have filed helpful case outlines, and the ICL supports the mother's Application. The father did not file a case outline but sent an email to my associates on 2 March in which he again questioned the Court's jurisdiction to grant the relief sought by the mother, and again raised the issue of his apparent High Court application.
Further, on Monday, 7 March, notwithstanding that he provided a certificate to the effect that he was not fit to work that day (there being no reference therein to any inability to attend Court either in person or by electronic communication), the father was nevertheless fit enough to prepare a one and a-half page, single-spaced document, which was forwarded to my chambers and which I indicated earlier today I would allow to stand as submissions on his behalf. He was clearly well enough to prepare that document, which bears that date. As I have indicated, no application has been made to the High Court for a writ of prohibition restraining me from dealing with the matter. In circumstances where, for the reasons that I will address shortly, I am of the view that I clearly have jurisdiction, I will exercise it.
At the mention on 3 March, the father submitted that notice should be given to the Attorneys-General of the Commonwealth and the States and Territories pursuant to section 78B(1) of the Judiciary Act. It is not in terms dissimilar to section 40 of that Act. It relevantly provides that:
Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court.
Again, neither on that occasion nor today has the father been able to persuasively point me to how he says that the cause pending in this Court involves a matter arising under the Constitution or involving its interpretation. The sections to which I have been referred by father, either in writing or orally, have no bearing, in my view, whatsoever. Paragraph (xxiiiA) of section 51 of the Constitution, provides that:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good governance of the Commonwealth with respect to the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances.
Given the way that paragraph has been drafted, the words within parentheses, "but not so as to authorise any form of civil conscription", must, as a matter of statutory interpretation, be confined or relate to the words "medical and dental services". It is important to note, though, that the chapeau to section 51 is directed to the Parliament having the power to make laws. It is not directed to the judiciary, nor is it directed to courts created by the legislature, such as this Court. Similarly, insofar as the father referred me to section 76 of the Constitution, in my view, it has no relevance and no application whatsoever to the matter before me today. It provides that the Parliament may make laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament.
I sought to grapple with the father's submission in relation to paragraph 76 so that I could understand it. Whilst I acknowledge that the father is a litigant in person, nevertheless, he has been sufficiently attuned to look at the Constitution and identify certain sections of the Constitution upon which he says he relies. On any reading of section 76, it does not, in my view, apply to judges. It is addressed to the Parliament. It enables the Parliament to makes laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament. There is no reference to the Federal Circuit and Family Court of Australia.
Properly understood, there is no cause, or part of a cause, arising under the Constitution or involving its interpretation, pending in this Court for the purposes of section 40 of the Judiciary Act. Similarly, properly understood, the cause before me does not involve a matter arising under the Constitution or involving its interpretation for the purposes of section 78B of that Act.
Furthermore, in circumstances where the father was at least alive to a section 40 application on 11 February, for him to purport to give a section 78 notice at 11.28 pm last night, 8 March, is too little, too late. The notice has not been tendered, but I was referred to it. It is unsealed and although it refers to this Court, it appears to be drawn under the rules of the Federal Court of Australia. In any event, the relevant rule in this Court is rule 2.13(1) of the Rules, which provides that:
If a party is, or becomes, aware that a proceeding involves a matter that:
(a)arises under the Constitution or involves its interpretation, within the meaning of section 78B of the Judiciary Act 1903; and
(b)is a genuine issue in the proceeding;
the party must give written notice of the matter to the Attorneys-General of the Commonwealth, and each State and Territory, and to each other party of the proceeding.
Presumably, neither the mother nor the ICL thought that rule 2.13 was enlivened. The father clearly does, but he has done so too late and not in accordance with the Rules. In any event, if he did believe that the matter arose under the Constitution or involved its interpretation, rule 2.13 requires that it must be a genuine issue in the proceedings. Having regard to the authorities to which I will turn shortly, I could not find that it is a genuine issue in the proceeding.
Section 61B of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides that:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
It is contended by the father that parental responsibility is a matter, in the first instance, for parents. It would be hard to disagree with that proposition. However, as I endeavoured on a number of occasions to point out to him, this is a case in which the parents cannot agree upon whether or not to vaccinate the child. The mother wants the child vaccinated, the father opposes it, and that deadlock needs to be resolved as promptly as possible in the current circumstances.
Section 61D(1) provides that:
A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 64B(2) provides that:
A parenting order may deal with one or more of the following…
A relevant issue for present purposes is to be found in paragraph (c) of that subsection:
The allocation of parental responsibility for a child.
Another relevant issue for present purposes is to be found in paragraph (i) of that subsection:
Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Section 65D(1) of the Act provides that:
In proceedings for a parenting order, the Court may, subject to sections 61DA and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
I can clearly make an order in relation to the matters specified in section 64B(2), in particular, paragraphs (c) and (i).
Section 65AA reminds the Court that:
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
At paragraph [3] of the father's affidavit, he says as follows:
In particular, whether the Federal Circuit and Family Court of Australia has jurisdiction or whether jurisdiction falls within the parental power to consent or not, in relation to vaccination and whether or not vaccination would form a special case as was decided in the case of Marion.
The father made a submission during the hearing which seemed to me to be at odds with that. He said to me that vaccination is not a special case. And yet in paragraph 3, above, he raises the issue as to whether or not vaccination would form a special case. To me, that appeared inconsistent with the matters to which he deposed, albeit really a submission, in his affidavit.
At paragraph [4], he continues:
This involves the conferral of power of the Constitution onto [sic] the Family Law Act (1975) under s51 (xxii) of the Constitution…
That is the well-known paragraph which confers power upon the Parliament to make orders with respect to divorce and matrimonial causes; and in relation thereto, parental rights and the custody and guardianship of infants. Again, that is not germane to the matter before me today. The jurisdiction of this Court to entertain and grant the relief sought by the mother, and supported by the ICL, was put beyond doubt by the High Court of Australia in P & P (1994) 181 CLR 583 following on from its decision in Marion's Case, reported as Secretary, Department of Health and Community Services v JWB and SMS (1992) 175 CLR 218.
The High Court has held unequivocally that the Family Law Act confers upon this Court the power to make an order authorising a person to carry out on a child a medical treatment that is intended or reasonably likely to have the effect of rendering the child permanently infertile. Such conferral of power on the Court is consistent with Chapter 3 of the Constitution and is a valid exercise of the legislative power of the Commonwealth Parliament. That being the case, this Court, in my view, all the more so, has the power to make an order authorising a person to carry out on a child a medical treatment, such as a vaccination, that is intended or reasonably likely to have the effect of rendering the child immune to COVID.
As I put to both counsel, as well as to the father, in my exchanges with all three of them, in my view, the greater encompasses the latter. It was not submitted to me and, more importantly, there was no evidence before me, that would, in any way, support the proposition that vaccinating a child against COVID could be said to be anywhere near as draconian as sterilising an intellectually disabled prepubescent child.
The issue of vaccination was considered by Bennett J of this Court in Kingsford & Kingsford [2012] FamCA 889. The question in that case was whether a child was to be immunised by way of homeopathic or traditional vaccination against diphtheria, tetanus, pertussis, hepatitis B, polio, HIV, measles, mumps, rubella, and meningococcal C. Her Honour made an order to ensure that the child received any and all childhood vaccinations / inoculations as were recommended by a specified doctor of E Hospital, so that the child was fully immunised to a level which was equivalent to a child of her age as prescribed or recommended in the National Immunisation Program schedule published by the Australian Government Department of Health and Ageing. In my view, this case is on all fours with the decision of Bennett J in Kingsford & Kingsford, and I find that authority to be persuasive.
The issue in relation to COVID vaccination was considered by Strickland, Ryan and Aldridge JJ in the Full Court in Covington & Covington [2021] FLC 94-014, in the context of an application to stay an appeal pending determination by the High Court of an application to remove the appeal to that Court pursuant to section 40 of the Judiciary Act. The primary judge had made an order for the vaccination of the child and dismissed an application for a stay of that order pending an appeal. The plurality of the Full Court said at paragraph [20], as follows:
In summary, his Honour dismissed the application because he considered that vaccination was in the best interests of the child, and because the mother’s appeal was “most unlikely to succeed” (Covington & Covington (No. 2) [2021] FamCA 24) (“Covington (No. 2)”) at [23]). His Honour further opined that a constitutional point which was raised by the mother, and to which we will be referring later in these reasons, was “wholly misconceived” (Covington (No. 2) at [23]). And finally, his Honour found that the mother’s claim that she had not consented to the orders made on 3 December 2020 flew “in the face of the evidence she gave to the Court during the trial” (Covington (No. 2) at [23]).
In my view, the constitutional point raised by the father in these proceedings is similarly wholly misconceived and, insofar as, in that case, the mother had consented to orders for vaccination and then withdrew her consent, that is not, in any way, material to the applicability of Covington & Covington in this issue.
In Covington & Covington, the issue before the primary judge, when he came to determine the point, as well as before the Full Court and the High Court was, as in this case, that one party wished to vaccinate the child and the other party did not, and I find that there is no basis to distinguish that case from the one presently before me. At paragraphs [39] to [44], their Honours in the Full Court said as follows:
39.Further, it is said that “the Family Law Court only has the power to make a binding order upon the mutual consent of the parties (emphasis added). If there is no mutual consent by the parties any order made by the Family Law Court has no legal effect because it would contravene the prohibition on civil conscription provided in s 51(xxiiiA) which is binding on all the Courts and Judges” (paragraph 12 mother’s affidavit filed on 13 April 2021).
40.As can be seen, that brings in the constitutional point raised in the application to remove the appeal to the High Court of Australia.
41.These contentions are entirely without foundation.
42.The Family Court of Australia has the jurisdiction to make an order providing for a child to be vaccinated (Mains & Redden [2011] FamCAFC 184, and if necessary see Re Kelvin (2017) FLC ¶93-809).
43.That jurisdiction is not dependent on whether or not the parties consent. Section 65 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings for a parenting order a court may make such parenting order as it thinks proper (alternatively or additionally see s 67ZC of that Act), and that order can be validly made even if there is no consent.
44.In this case, consent was given and the order was made on that basis. The fact that the mother sought to subsequently withdraw her consent does not in any way invalidate the order, or change its binding effect. The order stands as an order of the Court for which it had the jurisdiction to make.
(Emphasis in original)
Whilst I acknowledge that, insofar as paragraph [44] is concerned, the father here submits that he has not consented, that does not sit comfortably with the relief sought in his amended Response to Initiating Application filed on 17 January this year. It does not sit comfortably with paragraph 148 of his trial affidavit, and as I have indicated, he has not filed a response either opposing the relief sought or objecting to jurisdiction.
In relation to the argument that section 51(xxiiiA) prohibits legislation that authorises any form of civil conscription, the plurality in Covington in the Full Court said as follows, at paragraphs [48] - [53]:
48.However, here there is an order that the child be vaccinated; and therefore the only legislation that could be in play is the Act. Thus, the mother would have to persuade the High Court of Australia that that Act, and presumably s 65, and maybe s 67ZC, is the relevant legislation that is caught by the prohibition in s 51(xxiiiA). However, nowhere does the mother make that submission, and indeed, in our view, it is a submission that could not be made.
49.What the mother does do in her affidavit is suggest that the relevant legislation which is caught by s 51(xxiiiA) here is the Victorian Public Health (No Jab, No Play) Act 2008, and as a result that Act is invalid.
50.However, the first point to make is that that is a Victorian Act, and not Commonwealth legislation, when only the latter would be caught by s 51(xxiiiA).
51.Secondly, and obviously, the order was not made under the Victorian Act; it was made under the Family Law Act 1975 (Cth), and thirdly, the vaccinations once given, will be given pursuant to the orders made by his Honour.
52.The mother suggested in oral submissions that this Court had more material before it than was before Steward J. We assume that that is referring to the reliance before this Court on the High Court decision of Wong v The Commonwealth (2009) 236 CLR 573. However, that decision can give no comfort to the mother. It does not provide a basis for the application of s 51(xxiiiA) to the proceedings here.
53.In summary then, we are not persuaded that there is any merit in the constitutional issue relied on to have the appeal removed to the High Court of Australia. Thus, we dismissed the Application in an Appeal filed on 13 April 2021.
Even had the father brought a stay application in a timely fashion, and he did not do so, in my view, there is no merit in any constitutional issue raised by him, such as to warrant this application being removed to the High Court, and that is a further basis for which I have made the decision to dismiss the father's stay application.
In another incarnation of Covington, this time in the High Court of Australia, namely Covington v Covington & Anor [2021] HCASL 179, pending determination of an application for removal to the High Court of an appeal to the Full Court of the Family Court of Australia, pursuant to section 40 of the Judiciary Act, the mother sought an interlocutory injunction restraining the vaccination of the parties' 11 year old child. Again, no such application has been made in the matter before me today. Whilst the father has, albeit not in proper form, adverted to his opposition to the order sought by the mother, he has not sought any restraint on the child's vaccination. In the High Court, Steward J said as follows at [7] - [9]:
7.The constitutional point would appear to rely upon the carve out for “civil conscription” in s 51(xxiiiA) of the Constitution, which is in the following terms:
“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 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)
8.The mother alleges that this paragraph confers a constitutional freedom of some kind from compulsory vaccination. Her application for removal, which characterises the freedom as a constitutional “right”, is very difficult to follow and is, with great respect, assertive in nature. The contention is not supported by any authority and would appear to have very slim prospects of success. In General Practitioners Society v The Commonwealth, Gibbs J (as his Honour then was) observed that the phrase “civil conscription” applied to medical and dental services and “refers to any sort of compulsion to engage in practice as a doctor or a dentist or to perform particular medical or dental services”. Earlier in his Honour’s reasons, Gibbs J explained the term “civil conscription” in the following way:
“The word ‘conscription’, in the sense that seems to be most apposite for present purposes, means the compulsory enlistment of men (or women) for military (including naval or air force) service. The expression ‘civil conscription’ appears to mean the calling up of persons for compulsory service other than military service.”
9.As it is directed at preventing the conscription of a doctor or dentist to perform compulsory medical or dental services, the carve out for civil conscription in para (xxiiiA) would appear to have nothing at all to do with the power of the Family Court to make orders by consent for the vaccination of the daughter. Further, it is not suggested in any way that the doctor who might perform that vaccination will do so compulsorily pursuant to some act of Parliament.
I respectfully adopt the views of Steward J, especially insofar as they relate to the lack of merit in the mother's case there (and the father's case here), as well as his constitutional observations.
At [13], Steward J said:
Finally, my conclusion is also fortified by the fact that McEvoy J, having regard to the evidence before his Honour, found that the best interests of the daughter are that she be vaccinated. No medical evidence is before me which might contradict the opinion of the Associate Professor whose evidence was before McEvoy J.
Those observations of Steward J, again, are on all fours with this case. Having regard to the only evidence before me, to which I will refer below, it is in the best interests of X that he be vaccinated. As I observed, both on 11 February and again today, there is no medical evidence before me at all which contradicts the opinion of the child's treating general medical practitioner, Dr B.
The issue was most recently considered by Austin J in Dacombe & Paddison, [2021] FedCFamC1A 103, where the father appealed against an order authorising the mother to vaccinate the parties' child against COVID-19, contending that the primary judge lacked the statutory power to make the appealed order. Austin J summarily dismissed the appeal, finding that the appellant had no reasonable prospects of successfully prosecuting it.
At [16], Austin J said the father's contention that the primary judge lacked power to make the appealed order was demonstrably wrong. I place reliance upon that observation of Austin J and make the same observation about the father's case, as articulated before me, namely, that his contention that I lack the power to make the order sought by the mother is demonstrably wrong.
Austin J opined at paragraph [17] - [19] that:
17.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)
18.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] HCA 30; (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] HCA 44; (1949) 79 CLR 201).
19.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] HCA 15; (1992) 175 CLR 218; P v P [1994] HCA 20; (1994) 181 CLR 583). The father’s assertion otherwise, in reliance upon British Medical Association, was misconceived.
His Honour continued at [20] - [25]:
20.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.
21.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.
22.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.
23.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.
24.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).
25.It necessarily follows that the grounds pleaded in this appeal have no reasonable prospect of success and the appeal is therefore summarily dismissed.
In the circumstances of this case, the issue already having been considered by the Full Court of this Court and by the High Court, as well as by other judges of this Court at first instance, I find that there is no cause or part of a cause arising under the Constitution or involving its interpretation under section 40 of the Judiciary Act.
I find that the cause before me does not involve a matter arising under the Constitution or involving its interpretation for the purposes of section 78B of the Judiciary Act and, in the circumstances, insofar as it be relevant, I find that there is no genuine issue for the purposes of rule 2.13 of the rules of this Court.
Turning, then, to the affidavit of the mother, she sets out, succinctly and cogently, why it is that she wants X to be vaccinated. In summary, she says that when vaccination first became available to children of X's age in Australia late in 2021, she spoke with Dr B, X's treating GP, as to whether or not she would recommend vaccination. Dr B advised her, consistently with Dr B's evidence, that COVID-19 vaccination was recommended for children, given the prevalence of COVID-19 in their community and local area at the time and that there was nothing in X's medical history that would prevent him from being vaccinated. The mother further deposes, and the father agrees, that X has received all recommended vaccines since his birth and has not had an adverse reaction to vaccination. As X's primary carer, she simply wishes to ensure that X is as physically safe and well as can be. She relies upon Dr B's evidence that vaccination is safe for X and is recommended for most children aged between five and twelve years, noting that X will soon be nine.
The mother deposes that X has no allergies or other medical conditions that she or Dr B are aware of that would prevent him from being safely vaccinated. Not surprisingly, she is concerned that, now that X is back at school and learning in a face-to-face environment, he is unprotected against COVID-19 and that, despite protective measures being put in place, she has frequently received notification from X's school as to positive cases there. She is of the belief, not unreasonably on the evidence, that X is at high risk of contracting COVID-19 if he comes into close contact with a positive case, as he is unvaccinated. The mother is fully vaccinated against COVID-19 and she does not wish to be exposed to COVID-19. She has done everything that she can to keep X and herself safe and they practise safe daily habits. Nonetheless, there is a risk that if X contracts COVID-19, he will transmit it to her. As his primary carer, she is concerned to avoid becoming ill and, consequently, unable to care for X. She deposes that the risk to X of catching COVID-19 whilst unvaccinated is greater, because he spends regular time with the father and the father's partner, family and friends, who are also unvaccinated. She has never observed the father to wear a mask or to observe reasonable COVID-19 prevention measures in public. Indeed, she points to the father's trial affidavit at paragraph [148], where he asserts that he has a lawful reason for not wearing a mask. There is no evidence of what that lawful reason might be.
The mother acknowledges that, given X's age, his personal views as to vaccination are not definitive and that he is not old enough to consent. However, she deposes that X has expressed concerns to her about comments made by the father and his partner, Ms F, in relation to COVID-19 and vaccination, including negative comments in relation to the Government and police. X has told the mother that he does want to catch COVID-19 nor does he wish to spend any time away from his school and friends. He regularly asks to undertake rapid antigen tests that have been provided by the school and he wears a mask as required, without any issue. She deposes that X's classmates are being vaccinated and he wishes, similarly, to be protected as much as he possibly can against serious illness.
Turning to the evidence of Dr B, the child's general medical practitioner. Her qualifications are not put in issue. She deposes to being a general medical practitioner at the D Medical Centre and to holding a Bachelor of Medicine from C University and being a fellow of the Royal Australian College of General Practitioners.
Dr B deposes that X is a current patient of hers and that the mother has sought her advice in relation to vaccination. Annexure AT1 to her affidavit is a copy of a letter dated 28 January 2022, confirming her medical recommendation that X receive a paediatric Pfizer COVID-19 vaccination as per the ATAGI national guidelines, which are also in evidence. have read her letter, as well as the guidelines. The father does not submit, let alone adduce any expert evidence which suggests, that Dr B and/or the ATAGI national guidelines are wrong. He has had the benefit of the mother's affidavit since it was filed on or about 17 February.
This being an application under Part 7 of the Act, albeit that it is of limited compass, I turn briefly to section 60CA of the Family Law Act which provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) provides:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Section 60CC(2) provides:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2)(a) is not relevant. However, section 60CC(2)(b) is relevant insofar that, on the only evidence before me, which is not challenged by the father, in my view, a failure to vaccinate the child could subject the child to neglect, in that could expose him to physical harm. There is a need to protect him from the physical and psychological harm of being subjected to neglect if the mother were to contract COVID-19 from him.
As to the section 60CC (3) additional considerations, many of them are not relevant to the confined nature of this case and I will only list those that in my opinion are relevant or applicable to this case.
As to paragraph (a), the only evidence before me is that the child wishes to vaccinated and, although only nine, he appears to be mature for his age. Accordingly, I do take into account the expressed by him.
As to paragraph (c)(i), I accept that each of the parents has hitherto taken the opportunity to participate in making decisions about major long-term issues in relation to the child. However, on this discrete issue before me today, they cannot agree, and in circumstances where they cannot do so, that impasse must be resolved.
As to paragraph (f)(i), whilst each of the parents hitherto appears to have had the capacity to provide for the child's needs, including his emotional and intellectual needs, on the evidence before me in relation to this discrete issue alone, I find that the father does lack the capacity to provide for this need. He seems intent upon taking legal / jurisdictional points and not in any way meeting the evidence that has been adduced by the mother, which establishes that it is in X's best interests to be immunised.
As to paragraph (i), on the evidence before me, the father's attitude to the child and to the responsibilities of parenthood on this issue of vaccination alone, falls below that of the mother. He was on notice, as early as 11 February, that if he sought to oppose the mother's application, he needed to adduce evidence in support of any contention that it was not in X's best interests to be immunised. He has not done so.
In the circumstances, I accede to the mother's application, which is supported by the ICL.
Costs
The mother seeks an order that the father pay her counsel's costs, at scale, in the sum of $2,494, which, for ease, I have rounded up to $2,500. The Independent Children's Lawyer seeks the reservation of her costs. This is opposed by the father.
Turning to the second of those matters first, there is no reason not to reserve the ICL's costs. There is no prejudice whatsoever to the father. If a costs application is made in the fullness of time by the ICL, any reservation of costs will not in any way prejudice the father. Accordingly, I shall reserve the ICL's costs.
In relation to the mother's application for costs, notwithstanding the general rule in section 117(1), if I am of the opinion that there are circumstances that justify me in doing so, I may make such order as to costs as I consider just, having regard to the matters in section 117(2A).
As to paragraph (a), I have not been taken to any evidence of the parties' financial circumstances. Clearly, neither of them are people of means. The father is self-represented, and the mother has been able to obtain pro bono services of a law firm, so there is nothing that turns on that.
As to paragraph (b), neither party is in receipt of assistance by way of legal aid, so that is not relevant.
As to paragraph (c), namely, the conduct of the parties to the proceedings in relation to the proceedings, I take into account that, on one view, this was strictly an unopposed application. I have given the father every possible opportunity to properly prosecute his case. Although the Rules provide for it, I made a specific order that he file a Response. He did not do so, either in accordance with the Rules or my order. I brought that issue to his attention at the mention last Thursday and, rather than address what needed to be addressed, he saw fit to waste his time on some submissions which were of no assistance to the Court whatsoever. Also, whilst he opposed the mother's application (albeit without a response), he has done so without any evidence whatsoever that dealt with the merits of the mother's case. Again, that is a matter that I brought to his attention specifically on 11 February, cognisant of the fact that he was a litigant in person.
Paragraph (d) and (f) do not apply to this case.
As to paragraph (e), the father has been wholly unsuccessful in relation to the issue that was litigated before me today, namely, that of X's vaccination. This is in circumstances where his opposition flew in the face of first instance, persuasive authority; binding Full Court decisions of this Court; and binding High Court authority. In my view, his opposition, such as it was, unsupported by a response or evidence, was doomed to fail, as it has. In the circumstances, he has, in every respect, been wholly unsuccessful today.
Accordingly, I find that there are circumstances that justify me in making an order as to costs and I am reinforced in that respect by the modest quantum sought by the mother in respect of her counsel's costs of Monday and today. I shall order that the father pay the mother's costs for counsel, at scale, for the hearings on 7 and 9 March 2022, fixed in the total sum of $2,500.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 9 March 2022
0
12
0