Covington and Covington (No 2) - [2021] FamCA 24

FAMILY COURT OF AUSTRALIA

COVINGTON & COVINGTON (NO. 2)

[2021] FamCA 24

FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – Where the mother seeks a stay pending appeal of final parenting orders made by consent – Where final parenting orders provide for equal shared parental responsibility, for the child to live with the mother and spend substantial time with the father, for the child to be vaccinated, to commence mainstream schooling, to obtain a passport and that the father be permitted to involve the child in the practice of his religion subject to certain constraints – Where the mother submits that she did not give valid consent to the orders made by consent as she was subject to pressure from her legal representatives at the time – Where the mother further submits that the child has a Constitutional right not to be vaccinated and that no one will be harmed if there is a stay of the orders, and that if the orders are not stayed and the father proceeds to vaccinate the child, the child may run away and this would be antithetical for to her best interests – Where the father submits that the final orders are in the best interests of the child and the father is entitled to act in accordance with those orders, that the mother’s prospects on appeal are weak, that the mother’s actions suggest that her bona fides should be called into question and that to stay these orders would undermine the Court’s process – Where the Independent Children’s Lawyer also submits that the mother’s application for a stay should be dismissed – orders made dismissing the mother’s application for a stay.

FAMILY LAW – CHILDREN – Where the father seeks orders pursuant to a reservation of liberty to apply to facilitate the implementation of the final orders particularly in relation to the child’s attendance at primary school, vaccinations, obtaining a passport for the child and imposing certain injunctions on the mother – Where the mother’s behaviour in resisting the implementation of the existing orders and evidence that she has been involving the child in the proceedings supports the making of such orders – orders made to facilitate the implementation of the existing orders.

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)
Australian Constitution
Family Law Rules 2004 (Cth)

Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106
Mains & Redden [2011] FamCAFC 184

APPLICANT:

Ms Covington

RESPONDENT:

Mr Covington

INDEPENDENT CHILDREN’S LAWYER:

Matthew Harper

FILE NUMBER:

MLC

9008

2019

DATE DELIVERED:

27 January 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

27 January 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self-represented

SOLICITOR FOR THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Ms Mallett

SOLICITOR FOR THE RESPONDENT:

Coulter Roache Lawyers

INDEPENDENT CHILDREN’S LAWYER:

Mr Harper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

MMH Lawyers

Orders

The Application in a Case filed by the mother on 14 January 2021 be dismissed.
In order to give effect to…

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 Covington and Covington (No 2)

Details

AGLC: Covington and Covington (No 2) [2021] FamCA 24
Case: [2021] FamCA 24
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an application by Ms Covington (the mother) for a stay pending appeal of final parenting orders made by consent on 3 December 2020. These orders provided for equal shared parental responsibility, the child to live with the mother and spend substantial time with the father, the child to be vaccinated, to commence mainstream schooling, to obtain a passport, and for the father to involve the child in his religion subject to constraints. The mother contended that her consent was not valid due to pressure from her legal representatives, that the child had a constitutional right not to be vaccinated, and that a stay would not cause harm, whereas proceeding with vaccination might lead the child to run away, which would be contrary to her best interests. The father argued the orders were in the child's best interests, the mother's appeal prospects were weak, her bona fides were questionable, and a stay would undermine the court's process. The Independent Children's Lawyer also opposed the stay application.

The court was required to determine whether to grant a stay of the final parenting orders pending the mother's appeal. This involved assessing the mother's grounds for seeking the stay, including her assertion of invalid consent and the alleged constitutional right of the child not to be vaccinated. The court also had to consider the father's submissions regarding the strength of the appeal, the mother's conduct, and the potential undermining of the court's process. Furthermore, the court needed to weigh the best interests of the child, the risk of the appeal being rendered nugatory if a stay was not granted, and the general principles governing applications for stays of judgments, including the entitlement of a party to the benefit of a judgment and the presumption of its correctness.

The court dismissed the mother's application for a stay. It reasoned that the mother had not established a proper basis for the stay, noting that her claim of invalid consent was not supported by evidence and that her constitutional argument regarding vaccination was weak and had not been raised during the initial proceedings. The court found that the mother's conduct, including her inconsistent positions and inappropriate involvement of the child in the proceedings, called her bona fides into question. While acknowledging a potential risk of the appeal being rendered nugatory regarding vaccinations, the court found this was outweighed by the child's best interests, the medical evidence supporting vaccination, and the father's entitlement to act on the final orders. The court also made further orders to facilitate the implementation of the existing final orders, including injunctions restraining the mother from discussing the proceedings with the child and authorising the father to execute documents for the child's passport.

Orders