An interesting and important case was recently decided by the High Court of Australia. It involved a dispute between the parents of a 12-year-old girl. The mother had originally signed Consent Orders in The Family Court of Australia (FCA), agreeing to the child being vaccinated, but not specifically against COVID-19.

The mother then sought to withdraw her consent to the vaccinations. She relied on the provisions of Section 51 of the Commonwealth Constitution, claiming that the Court did not have the power to make an order for mandatory vaccination. 

You may remember that a High Court challenge was previously made to the rights of the Australian states to close their borders because of COVID-19. The claimant in that case said closing the borders was against Section 51, which provided that “trade between the states shall be absolutely free.” In this case, the FCA held that the parents were to support their child in receiving vaccinations.

The father agreed with that decision, but the mother appealed to the Full Court of the FCA. That appeal was heard on 16 April 2021. The child’s father and the Independent Children’s Lawyer opposed the mother’s appeal. The Full Court decided that the mother’s argument had no merit, and it dismissed her application. It said that the Court does have the power, both under the Family Law Act and the Family Law Rules, to make orders concerning the vaccination of a child. In addition, the mother had consented to the original orders, and she could not now argue that she had withdrawn her consent.

The mother then sought special leave to appeal to the High Court of Australia. You can’t just appeal to the High Court, you have to get their permission to do so, otherwise the Court would be swamped with applications. The case has to raise, in this instance, a matter of public importance. Clearly, this case fitted that category- the issue of vaccinating children in the middle of the COVID-19 pandemic, even though the case was not specifically about that, was a matter of national importance.

The High Court agreed to hear the case but gave it short shrift, as they had done with the closing the borders case. They dismissed the appeal, saying that the FCA decision was correct. So, the High Court has confirmed that the FCA (now the FCFCOA, following the amalgamation of the Family Court and the Federal Circuit Court on 1 September 2021) does have the power to make orders about vaccinating children when the parents can’t agree. That doesn’t mean they will always order vaccination, but they are the go-to place if a decision has to be made.

If you would like further information, please do not hesitate to contact Tonkin Legal Group on (03) 9435 9044 to arrange an appointment with one of our experienced Family Lawyers.