Can the Court order your child get vaccinated?

While COVID-19 vaccinations are not strictly mandatory in Australia, several freedoms are only afforded to those who have received their jabs, including the ability to travel without impunity. From this, it is not surprising that several disputes have arose between parents as to the necessity to vaccinate their children, whether against COVID-19 or otherwise.

Recently, the Federal Circuit and Family Court of Australia (FCFCOA) reaffirmed that it has the jurisdiction to order a child receive a vaccination, where it believes that the provision of the vaccination is in the best interests of the child. In the matter of Covington & Covington [2021] FamCAFC 52 (Covington), the Full Court provided that:

[42] The Family Court of Australia has the jurisdiction to make an order providing for a child to be vaccinated (Mains v Redden (2011) 46 Fam LR 400; [2011] FamCAFC 184, and if necessary see Re Kelvin (2017) 351 ALR 329; (2017) FLC 93-809; [2017] FamCAFC 258).

[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.

To this end, the court relied on its power to make parenting orders under the Act (outlined here). It is also key to consider that section 60CA of the Act 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.

It is also important to bear in the mind the context of Covington. The case presented circumstances where the parties has previously agreed to consent orders which provided for their child to be vaccinated. Thereafter, the mother then filed an application to the High Court of Australia seeking that these consent orders be set aside (together with an interlocutory injunction seeking a restrain on vaccinations). Her application was made to the High Court as it relied on the interpretation of the Constitution, specifically section 51(xxiiA). At first instance, the High Court dismissed this application, in circumstances where the application ‘lacked merit and was misconceived’. The Full Court of the FCFCA then heard the matter.

Section 51(xxiiiA) of the Constitution provides (emphasis added):

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) …

The mother believed that this section of the Constitution provided her and her child a freedom from any requirement for mandatory vaccination (in these circumstances, as they were ordered by the court), as she considered it a form of ‘civil conscription’.

The court then provided:

[45] As for the constitutional point, we can do no better than record what Steward J said in dismissing the mother’s application for an interlocutory injunction, namely:

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.

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. Her contention is not supported by any authority and would appear to have very slim prospects of success. In General Practitioners Society v Commonwealth (1980) 145 CLR 532; 31 ALR 369, 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” (General Practitioners Society at CLR 557; ALR 388). Earlier in his Honour’s reasons, Gibbs J explained the term “civil conscription” in the following way (General Practitioners Society supra):

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.

Accordingly, the mother’s application was dismissed and the consent orders providing for vaccination of the child were upheld.

The key take away from this case are that:

• the Court has the power to make an order for the vaccination of a child (by consent or otherwise);

• in making the order for vaccination, the court must consider the paramount principle, i.e., whether such order is in t he best interest of the child; and

• the Constitution does not prohibit the Courts ability to make an order in relation to vaccinations.

If you are facing a dispute regarding vaccination, please reach out to our specialised family law team to discuss your rights further, and how we may best assist you.