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)

1. 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.

2. 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).

3. 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.

4. 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.

5. 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 order preventing Mr Brown from allowing the vaccination. Mrs Brown has today informed the Court that she complied with the order for service and has also attempted to telephone Mr Brown. Mr Brown has not appeared this afternoon at the return of the summons notwithstanding further attempts to telephone him by Mrs Brown and a further email from my tipstaff to him.

6. The significance of his non-participation today is that Miss Brown is in the course of being returned to him and, if what the Court proposes to do is to have any efficacy, it will be necessary for Mr Brown to be restrained from causing or permitting any COVID-19 vaccine to be administered to Miss Brown while Mrs Brown's application is pending in the Family Court. In response to a question from me, Mrs Brown has undertaken to this Court that she will file an application in the COVID-19 List of the Family Court no later than next Monday (the FC Application). Had Mr Brown appeared today, I would have sought an undertaking from him to preserve the status quo while the FC Application was determined, but in his absence it will be necessary for the Court to lay an injunction.

7. It is well understood that the parens patriae jurisdiction of this Court is only to be invoked in extraordinary circumstances. As part of that jurisprudence, this Court will generally not exercise that jurisdiction when there is a specialist court charged with responsibility for the particular issue that is raised. The most common example is where parties wish to invoke the Court's parens patriae jurisdiction in relation to matters currently before the New South Wales Children's Court, however I see no reason why the same principle should not apply to the Family Court. This is because, as I shall shortly describe, it is both a specialist court familiar with this issue and has in place a specialist list to enable the urgent determination of questions concerning vaccination and other matters arising from the COVID-19 pandemic.

8. Enquiries made by my chambers and an internet search have disclosed that the Family Court operates a national COVID-19 List. That list is able to be accessed on an urgent basis by emailing the requisite, relatively straightforward documents to a special email address for the COVID-19 List, where the application will be assessed quickly by a registrar as to whether it is urgent and how it is best to be resolved. That list has been in operation for some time and, as I understand it, is well-known to family law practitioners.

9. Furthermore, the Family Court has a well-developed jurisprudence in relation to disputes between parents about whether or not a child should be vaccinated, which well predates the current pandemic. An early case is Mains v Redden [2011] FamCAFC 184. The jurisdiction of the Family Court to make orders in relation to the vaccination of children (although not concerning COVID-19) was considered most recently by the Full Court of the Family Court in Covington v Covington [2021] FamCAFC 52.

10. In circumstances where there is both a specialist court with a specialist list for precisely the present problem which can act urgently, and that Court has a well-developed jurisprudence in this area, I have concluded that extraordinary circumstances do not exist for the intervention by this Court in its parens patriae jurisdiction to resolve the question of whether or not Miss Brown should be vaccinated. I have reached that conclusion of my own motion.

11. However, in the present factual circumstances of the proceedings now being before me, Miss Brown is shortly to be returned to her father, and it is now 2:40pm on a Friday afternoon, I am satisfied that the need to preserve her mother’s right to bring the FC Application is a proper basis upon which to restrain Mr Brown, notwithstanding that he has sole parental responsibility for his daughter, from causing or permitting any COVID-19 vaccine to be administered to Miss Brown until the determination of Mrs Brown’s FC Application.

12. The Court has every confidence from the material on the Family Court website, and from enquiries made by my chambers to the Registry of the Family Court, that Mrs Brown's application will be promptly dealt with once received. Accordingly, upon Mrs Brown giving an undertaking to commence the FC Application no later than Monday, the Court will make an order restraining Mr Brown in the way in which I have described until determination of that application. The summons will otherwise be dismissed with no order as to costs.

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Decision last updated: 14 January 2022