Brown v Brown - [2022] NSWSC 16

Supreme Court

New South Wales

Medium Neutral Citation: Brown v Brown [2022] NSWSC 16
Hearing dates: 13 and 14 January 2022
Date of orders: 14 January 2022
Decision date: 14 January 2022
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Proceedings dismissed

Catchwords:
CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae – Dispute over COVID-19 vaccination of child subject to family law proceedings — Extraordinary circumstances for exercise of jurisdiction not demonstrated when specialist COVID-19 list available in Federal Circuit and Family Court of Australia

Cases Cited:
Covington v Covington [2021] FamCAFC 52
Mains v Redden [2011] FamCAFC 184

Category: Principal judgment
Parties: Mrs Brown (Pseudonym)(Plaintiff)
Mr Brown (Pseudonym)(Defendant)
Representation: Mrs Brown (Pseudonym)(In person)

File Number(s): 2022/10880
Publication restriction: By order of Kunc J on 14 January 2022, the plaintiff, defendant and child in these proceedings are to be referred to by the pseudonyms Mrs Brown, Mr Brown and Miss Brown respectively.

EX TEMPORE Judgment (Revised)

This is an urgent application made by the plaintiff, Mrs Brown, in the parens patriae jurisdiction of the Court to prevent her ex-partner, Mr Brown, from permitting a COVID-19 vaccination to be administered to the child of their relationship, Miss Brown, who is currently seven and a half years old.
What follows are the reasons why the Court has concluded of its own motion that it is not appropriate to exercise the parens patriae jurisdiction to determine whether or not Miss Brown should be vaccinated against COVID-19. However, because Mrs Brown must return Miss Brown to her father this afternoon, the Court will lay an injunction against Mr Brown for the limited purpose of preserving the status quo while the matter is dealt with in the Federal Circuit and Family Court of Australia (the Family Court).
My chambers were originally contacted on Wednesday 12 January 2022 by Mrs Brown who informed my staff that she wished to make this application. Mrs Brown was told that because there were already custody proceedings in the Family Court, she should contact that Court to ascertain how it could be urgently resolved in that jurisdiction. The next day, Mrs Brown again contacted my chambers and informed my staff that, as a result of her enquiries with the Family Court, she did not believe that Court would be able to deal with her application with the necessary urgency.
The urgency was that for this week, but concluding today, Mrs Brown had an access visit with her daughter pursuant to orders made in the ongoing Family Court proceedings. Mrs Brown also candidly informed me that Mr Brown has been awarded sole parental responsibility for their daughter, which in the ordinary course would mean that it was within his power to determine without reference to Mrs Brown whether or not their daughter should be vaccinated.
The Court permitted her to file a summons and affidavit which were to be served last night by email on Mr Brown. The summons sought, in effect, a final…

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.

Continue reading Brown v Brown

Details

AGLC: Brown v Brown [2022] NSWSC 16
Case: [2022] NSWSC 16
Decision Date: 14 January 2022

CaseChat Overview and Summary

The case of Brown v Brown arose in the Supreme Court of New South Wales, with the central issue being the jurisdiction to determine the COVID-19 vaccination status of a child embroiled in family law proceedings. The parents, Brown and Brown, were in dispute over whether their minor child should receive a COVID-19 vaccination, a decision that had not been straightforwardly settled in the family law proceedings. The father sought to prevent the child from being vaccinated, while the mother argued in favour of vaccination.

The legal issues before the court involved whether the Supreme Court had the necessary jurisdiction to make a decision regarding the child's vaccination status. The court had to consider whether the situation constituted extraordinary circumstances that warranted the exercise of its parens patriae jurisdiction. The parents argued that the court should intervene, given the significant implications for the child's health and well-being. However, the court needed to determine whether the circumstances were indeed extraordinary enough to warrant this intervention, especially when a more specialised list was available in the Federal Circuit and Family Court of Australia.

The Supreme Court held that the extraordinary circumstances necessary to justify its intervention were not demonstrated in this case. The court noted that the Federal Circuit and Family Court of Australia had a specialist list for COVID-19 related matters, which was equipped to handle such disputes. The court reasoned that, given the availability of this dedicated list, the circumstances did not meet the threshold for invoking the parens patriae jurisdiction of the Supreme Court. The court dismissed the father's application, reinforcing that the primary jurisdiction for such disputes rested with the Federal Circuit and Family Court of Australia.

The court's decision underscores the importance of jurisdictional boundaries and the role of specialised courts in addressing complex issues. By dismissing the father's application, the Supreme Court emphasised that, in the absence of extraordinary circumstances, it would not intervene in matters already falling within the purview of a specialised court. The outcome highlights the need for parties to navigate the appropriate legal avenues when disputes arise, particularly in contexts where specialised courts have been established to address specific issues.

Orders