Covington and Covington (No 2)

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.