Covington & Covington
[2020] FamCA 1064
•11 December 2020
FAMILY COURT OF AUSTRALIA
| COVINGTON & COVINGTON | [2020] FamCA 1064 |
| FAMILY LAW – CHILDREN – Where final parenting were made by consent following a final hearing – Where the mother purported to withdraw her consent before the orders were formally published and entered in court’s database – Where the mother says her consent was given under duress, coercion and pressure from her legal representatives – Where it is found that pursuant to Family Law Rules 2004 r 17.01(1)(a), the orders were made and in effect when pronounced in court, rather than on the day they were published – Where the mother cannot now seek to withdraw her consent without making an application to have the orders set aside – Where the mother seeks to be represented by someone who is not a legal practitioner – Where there are no exceptional circumstances which would make it appropriate for her to have leave to be represented someone who is not a legal practitioner – Where leave granted for this person to assist the mother in the capacity of a McKenzie Friend – Where there was liberty to apply in relation to the implementation of the consent orders – Where the father makes an application to vary the consent orders to exclude the mother from the vaccination process while she maintains her opposition to the child being vaccinated – Where it is found that the evidence suggests that to allow the mother to be involved in the vaccination process would be distressing for the child and not in her best interests – Orders made varying the consent orders accordingly. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Batey-Elton & Elton (2010) 43 FamLR 62 Belle & Vaughan [2012] FamCAFC 133 Damjanovic v Maley (2002) 55 NSWLR 149 Melville v Melville (No 3) (2020) 61 Fam LR 280 MG & MG (2000) FLC 93-034 |
| APPLICANT: | Mr Covington |
| RESPONDENT: | Ms Covington |
| INDEPENDENT CHILDREN’S LAWYER: | Matthew Harper |
| FILE NUMBER: | MLC | 9008 | of | 2019 |
| DATE DELIVERED: | 11 December 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | McEvoy J |
| HEARING DATE: | 11 December 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Mallett |
| SOLICITOR FOR THE APPLICANT: | Coulter Roache Solicitors |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
| THE RESPONDENT: | Self-represented |
| THE INDEPENDENT CHILDREN’S LAWYER: | Mr Harper |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | MMH Lawyers |
Orders
Order 23 of the Final Orders made by consent on 3 December 2020 (the Final Orders) be varied to read as follows: The father shall be permitted to attend the paediatric appointment and shall take Z with him as recommended by the B Immunisation Service.
Order 24 of the Final Orders be varied to read as follows: The father shall ensure that he is calm and co-operative during any attendance at the B Immunisation Service and ensure that any questions or concerns that he may have are raised in an appropriate setting and that Z is not exposed to any conflict or distress.
Order 25(e) of the Final Orders be varied to read as follows: unless agreed otherwise in writing, the father will take Z to any vaccination appointment.
Notation D of the Final Orders be discharged.
Unless otherwise agreed in writing, the Mother be restrained from attending any and all paediatric appointments/appointments with a general practitioner made for the purposes of having Z immunised or vaccinated.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Covington & Covington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9008 of 2019
| Mr Covington |
Applicant
And
| Ms Covington |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are the applicant father, Mr Covington and the respondent mother, Ms Covington. The proceedings have concerned parenting arrangements for the one child of the relationship Z born in 2010 (“the child”), currently 10 years of age.
Originally in issue was the question of parental responsibility and whether the child should be immunised or vaccinated, whether she should transition from home schooling to mainstream schooling, and whether the father should be permitted to involve the child in the practice of his religion.
The trial commenced before me on 30 November 2020 by way of Microsoft Teams, and ran for four days. Both the applicant father and the respondent mother gave evidence and were cross examined.
In broad terms the mother contended that she should have sole parental responsibility, that the child should not be immunised or vaccinated, that the child should continue to be home schooled, and that the father should be restrained from involving the child in any activity relating to his membership of the C Church or exposing her to any C Church material.
For his part the father maintained that the parties should have equal shared parental responsibility, that the child should be vaccinated in accordance with a vaccination schedule recommended by a paediatrician, that the child’s home schooling should come to an end and that she should be enrolled in a mainstream school commencing in 2021, albeit on a staged basis, and that he should be permitted to involve the child in the activities of the C Church. The father conceded that the child should not have to participate in door to door knocking, prior to attaining the age of 12 years, and only then should she agree to do so.
During the course of the trial the issues separating the parties narrowed, and ultimately, on the fourth day of the trial, the parties came to an agreement in relation to all matters.
Accordingly, late on 3 December 2020, I made orders by the consent of the parties, together with certain other procedural orders, in the following terms:
1.All previous parenting orders be discharged.
2.The mother and father have equal shared parental responsibility for Z born … 2010.
3.Z live with the mother.
Spend time
4.Unless otherwise agreed in writing between the parties, Z spend time with the father as follows:
(a)subject to order 6 herein, in week one of a two weekly cycle:
(i) from the conclusion of school or 3.30 pm if a non-school day on Wednesday to the commencement of school or 8.30 am if a non-school day on Thursday; and
(ii) subject to order 5 below, from the conclusion of school or 3.30 pm Friday to 9.30 am on Sunday;
(b)subject to order 6 herein, In week two of a two weekly cycle:
(i)from the conclusion of school or 3.30 pm if a non-school day on Wednesday to the commencement of school or 8.30 am if a non-school day on Thursday; and
(c)for half of each of the Victorian gazetted school term holidays, at times to be agreed between the parties and failing agreement as follows:
(i)for the first half of each of the gazetted school term holidays in 2020 and each alternate year thereafter; and
(ii)for the second half of each of the gazetted school term holidays in 2021 and each alternate year thereafter;
(d)for half of the gazetted long summer holidays, at times to be agreed between the parties and failing agreement as follows:
(i)for the first half of the long summer holiday in 2020/2021 and each alternate year thereafter; and
(ii)for the second half of the long summer holiday in 2021/2022 and each alternate year thereafter.
(e)by telephone with the father being at liberty to communicate with Z via SMS or telephone (or similar) at all reasonable times and Z being at liberty contact the father at any time that she wishes and the mother is not to restrain or inhibit her from doing so.
5.From 1 September 2021 the time provided for in order 4(a)(ii) be extended to the commencement of school or 8.30 am if a non-school day on Monday (or 3.30 pm if Monday is a public holiday).
6.During the period where Z is attending school on a part-time basis (being a period of three or less days a week), Z’s time with the father pursuant to order 4(a)(i) and order 4(b)(i) coincide, where possible, to a school day for Z.
7.For the purposes of the time Z spends with the father pursuant to paragraphs 4(c) and (d), the school term holidays and the long summer holidays are calculated as from the last day of the school term to 6.00 pm on the Sunday preceding the commencement of the following school term.
8.The arrangements provided for in order 4(d)(i) be suspended from 12.00 pm on Christmas Eve to 12.00 pm on Boxing Day and Z spend time with the mother during this time.
9.Commencing in 2022, in the event that Z is living with the mother pursuant to these orders, the mother’s time be suspended from 8.30 am on the special religious day commemorated by the C Church until 8.30 am or the commencement of school (if a school day) the following day, and Z spend time with the father during this time.
10.In the event Father’s Day falls on a day when Z is living with the mother, that Z spend time with the father from 10.00 am to 6.00 pm on Father’s Day.
11.In the event Mother’s Day falls on a day when Z is living with the father pursuant to these orders, that Z spend time with the mother from 10.00 am to 6.00 pm on Mother’s Day.
12.In the event that Z’s birthday or the mother’s birthday fall on a day when Z is spending time with the father that Z spend time with the mother by agreement between the parties and failing agreement from 3.30 pm to 6.00 pm on Z or the mother’s birthday if such birthday falls on a weekday and from 12.00 pm to 6.00 pm should the birthdays fall on a weekend.
13.Unless otherwise agreed in writing, changeover which does not take place at Z’s school shall take place with the father to collect Z from the mother’s home at the commencement of Z’s time with the father and with the mother to collect Z from the father’s home at the conclusion of such time save and except on Thursdays where the father’s times extended by reason of a public holiday.
14.The parties be at liberty to travel with Z interstate as agreed in writing between the parties, with the other party not to unreasonably withhold their consent to the travel on the basis that the travelling party:
(a)provides not less than 28 days written notice to the other party of their intention to travel interstate with Z, with that notice to include the destination(s) and proposed dates of travel;
(b)provides not less than 28 days prior to departure a copy of the itinerary, confirmed destination(s), confirmed dates of travel, copies of the return tickets for Z and contact details for Z for the duration of the travel, including each address and contact telephone number for where Z will be staying; and
(c)provides the other party with make-up time with Z for any period of travel that occurs during Z’s usual scheduled time with the other party.
15.Within 60 days, the parties do all such things necessary to apply for and obtain a passport for Z which will be held by the mother on condition that it will be provided to the father as necessary to facilitate order 16 below and that she not use said passport to travel with Z except for in accordance with order 16 below.
16.The parties be at liberty to travel with Z outside the Commonwealth of Australia as agreed in writing between the parties, with the other party not to unreasonably withhold their consent to the travel and on the basis that the travelling party:
(a)provides not less than 60 days written notice to the other party of their intention to travel overseas with Z, with that notice to include the destination(s) and proposed dates of travel;
(b)ensures that they have registered the proposed trip with smarttraveller.gov.au and complied with all recommendations thereof for the destination including but not limited to Z receiving all recommended vaccines/immunisations (from a General Practitioner agreed between the parties or in default agreement by attendance at the B Hospital or other paediatric vaccination facility nominated by the father);
(c)provides not less than 28 days prior to departure:
(i) a copy of the itinerary;
(ii) confirmed destination(s);
(iii) confirmed dates of travel;
(iv) copies of the return tickets for Z;
(v) contact details for Z for the duration of the travel, including each address and contact telephone number for where Z will be staying; and
(vi) written evidence of compliance with order 16(b) of these orders; and
(d)provides the other party with make-up time with Z for any period of travel that occurs during Z’s usual scheduled time with the other party.
17.The mother and father by themselves, their servants and/or agents be and hereby are restrained from denigrating each other in the presence of Z.
18.For the purposes of communication between the parties:
(a)the parties shall utilise text message, telephone or email to communicate; and
(b)the parties shall keep each other informed of their residential address, mobile telephone number, landline telephone number (if applicable) and email address and notify each other within 48 hours of any change thereto.
19.The mother and father shall authorise Z’s school to provide to the other parent at the other parent’s expense, information in relation to Z’s education (including but not limited to school reports, school photograph order forms and notices).
20.With respect to Z’s attendance at any school or activity outside of the mother’s home schooling, The mother and the father be permitted to attend the same in accordance with the normal arrangements of the school or activity for the attendance of parents.
21.The mother and father inform each other of any significant medical illness or injury suffered by Z and provide information to each other and consult with the other party prior to Z receiving medical treatment/psychological treatment or undergoing surgery except in an emergency in which case they will inform each other as soon possible thereafter.
Immunisation/Vaccination
22.Within seven (7) days of the date of these orders, The father shall make an appointment with a paediatrician at the B Immunisation Service (“the paediatric appointment”) for the purposes of Z receiving vaccinations as recommended by the paediatrician on such dates and times and in accordance with a schedule as recommended by the paediatrician.
23.The mother and father shall each be permitted to attend the paediatric appointment and shall take Z with them as recommended by the B Immunisation Service.
24.The mother and father shall ensure that they are calm and co-operative during any attendance at the B Immunisation Service and ensure that any questions or concerns that they may have are raised in appropriate setting and that Z is not exposed to any conflict or distress by either of them.
25.For the purpose of the orders herein related to immunisations/vaccination, the following shall apply:
(a)the mother and father shall not discuss the issue of vaccinations with Z until such time as the Independent Children’s Lawyer has met with Z in accordance with order 37 herein;
(b)the father shall provide a copy of the report completed by Associate Professor D (together with any further recommendations provided in evidence, if any) and a copy of these orders to the B Immunisation Service;
(c)following the Independent Children’s Lawyer’s explanation of these orders to Z, both parties are to use their best endeavours to support Z in attending the appointment with the B Immunisation Service and any subsequent vaccination appointments;
(d)unless agreed otherwise in writing, the parenting orders herein be suspended for twenty-four (24) hours immediately prior and following any paediatric (or vaccination) appointment and Z spend time with the father twenty-four (24) hours prior to the paediatrician’s (or vaccination) appointment and be returned to the mother twenty-four (24) hours following the appointment; and
(e)unless agreed otherwise in writing, the father will take Z to any vaccination appointment but the mother be permitted to meet them at the appointment and accompany Z during the appointment to provide comfort and support.
26.Z receive all future vaccinations and anti-venom treatments as recommended by a paediatrician or treating medical professional nominated by the father as and when they are recommended to occur by such paediatrician or treating medical professional.
Primary school
27.Each party be at liberty to take Z to attend any school open days or tours available at the enrolled school upon providing the other parent with no less than 24 hours’ notice of the same. The other parent may attend the same if agreed in writing in advance.
28.Within seven (7) days of the date of these orders the mother and father do all such acts and things necessary for Z to be enrolled to attend E School with her attendance to commence as soon as a place becomes available and pending such place becoming available Z be enrolled to and attend F School from Term 1 2021 (“the school”).
29.In the event that no place is available or the enrolment is not accepted, the orders applying to Z’s enrolment and attendance shall be applied (unless otherwise agreed in writing) to schools in the following order of preference:
(a)G School;
(b)H School; and
(c)J School.
30.For the purposes of any enrolment pursuant to these orders:
(a)the school be provided with a copy of the educational assessment prepared by Dr K;
(b)Z attend the school for a minimum equivalent of two (2) days per week (“the transition period”) with the attendance days to be as recommended by the principal of the school;
(c)at the time of enrolment, the mother and father meet with the principal of the school (either jointly or separately) for the purposes of determining the appropriate enrolment grade, the length of the transition period and a review date to review Z’s progress;
(d)at the conclusion of term one in 2021, or earlier if agreed by the mother and father and principal, the mother and father meet with the principal of the school (either jointly or separately) to review Z’s progress and the plan for Z’s full-time transition into mainstream schooling; and
(e)in default of agreement between the parents as to when Z is to commence full time attendance, the parties will follow the advice of the principal at the school.
Secondary School
31.Within twenty-eight (28) days of the date of these orders Z be enrolled to attend (on a full time basis) the following secondary schools:
(a) E School for year 7;
(b) L School; and
(c) M School.
32.The secondary schools referred to in order 31 herein represent the order of preference should Z be accepted to attend multiple secondary schools.
Future schooling
33.In the event that no place is available at the schools listed in order 29 and 31, or if there is a proposed change of geographical location of the parties, the mother and father will do all things necessary to investigate and reach agreement on a school for Z and in default of agreement the father will provide a list of three proposed schools (with no less than two having no single religion admission requirements) and the mother will select from the proposed list.
Religion
34.Commencing 1 June 2021, Z be permitted to attend with the mother or father to any and all religious activities attended by the mother or father during the time that Z is in their respective care, subject to Notation B.
35.Each party be restrained from baptising or ordaining Z into any religious practice without the express consent of the other party.
Relocation
36.The mother be hereby restrained by injunction from relocating with Z more than 45 kilometres from the father’s residence (unless said move be to a place within 30 kilometres of the school Z is attending) and provided that in any event, the father’s travel time from his residence in N Town at peak hour not ordinarily exceed one hour without the written consent of the father.
Independent Children’s Lawyer
37.Within seven (7) days of the date of these orders the mother or father make Z available for an appointment with the Independent Children’s Lawyer for the purposes of explaining these orders.
38.The order for the appointment of the Independent Children’s Lawyer be discharged six (6) months from the date of the Final orders.
Intervention order
39.The father has leave to provide a copy of these orders to the Magistrates’ Court of Victoria in relation to the ongoing Intervention order proceedings.
40.Pursuant to s 68Q of the Family Law Act 1975, insofar as these orders are inconsistent with any family violence order, these orders shall prevail.
Other
41.The mother and the father forthwith enrol in and complete a Post Separation Parenting Course and provide evidence of the same to each other and the Independent Children’s Lawyer.
42.All parties have liberty to apply at short notice as to the implementation of these orders until completion of the immunisation program provided for herein or in relation to a dispute arising in relation to order 36.
IT IS ORDERED THAT:
43.The hearing date of 4 December 2020 be vacated.
44.All extant applications be otherwise dismissed.
45.A copy of the minute of consent orders be placed on the court file.
AND THE COURT NOTES THAT:
A.The father agrees to meet any costs associated with the attendance of Z at mainstream primary and secondary school and not claim a reduction in any Child Support payments in relation to the same.
B.The father acknowledges and agrees that Z will not participate in door to door knocking prior to Z attaining the age of 12 and thereafter in accordance with Z’s wishes as expressed by her to the father.
C.The mother has indicated an intention to withdraw her application (Case No …) for an intervention order on behalf of herself and Z.
D.In the event that the mother has appropriately supported Z during the first three vaccination appointments then the parties agree to s 25(d) being discharged and the parent who Z is otherwise with pursuant to these orders have her for the 24 hour period preceding and after any further vaccination appointments.
E.Pursuant to s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
The Mother’s Support for the Consent Orders
On 3 December 2020, prior to the making of these orders, counsel for the father made the following observations:
MS MALLETT: The observations that I wish to make before any responses. My client’s overall concern and certainly my client’s – my concerns on his behalf are that whilst we are enormously pleased to see the concessions that have been made, we have some reservations in light of the fact that the mother gave evidence just this morning, and it was very much obvious from her evidence, in my submission, still at that stage, that many of these concessions did not appear to be made at that stage. So my only concern, your Honour, is that she has a full and proper understanding that by asking your Honour to make these as consent orders, it does not, in any way, undermine the role that the court has played in this and the decisions and the basis on which it is made.
It would be most unfortunate if there were to be any suggestion that it had been done under inappropriate duress or feeling that duress. Because if that is the case it would be proper that she ask the court to make them as orders with her objections having been noted, rather than projected as if it was with her consent when it is not. I’m just – I’m anxious in that regard, your Honour.
HIS HONOUR: Yes.
MS MALLETT: And I just wanted that to be on the record, as it were.
In response, I said as follows:
HIS HONOUR: Yes. Well, look, I can understand that concern. And, I suppose, to some extent, Ms [counsel for the mother], we’re in your hands about that. I mean, if ‑ ‑ ‑
COUNSEL FOR THE MOTHER: Yes.
HIS HONOUR: And I say this conscious that Ms Covington is – I can see that Ms Covington is on this link, albeit that she’s not visible. Maybe it would be good, Ms Covington, if you did turn your video on. Thank you. So you will have heard what Ms Mallett just said, Ms Covington. And you will have heard what I said to your barrister, Ms [counsel for the mother]. Really, what Ms Mallett is saying is that if you are genuinely content to agree to orders along these lines, subject to those couple of matters that you have got a different view about, then these orders can be made as consent orders.
But if you really are very reluctant in relation to some of them, and in truth, do not consent, then it would be better for you to leave me to make the decision, and, if necessary, to pronounce reasons in relation to those particular matters with which you did not agree. And what that would mean then is that it would have been a decision of the court. There wouldn’t be an ability for you to later say that you had some issue with them unless you were minded to institute an appeal from whatever orders that I made. So the central thing is for you to consider – and you don’t have to go into this with me. You can have some discussions with [your counsel] about this.
The central thing for you to consider is whether you really do want these orders to be made by consent. Whether you are happy with these orders or not. And if you’re not happy with some of them and you would rather me just make the decision and publish some reasons for the making of that decision then that might be the safer course in the long run, if you understand what I’m saying.
After further exchanges between the Court and counsel for the parties and my indication that the consent orders proposed would be made, the following exchange occurred between the Court and counsel for the mother:
… Ms [counsel for the mother], you’re obviously quite content that your client is fully on board with all of this and with these orders being made as consent orders?
COUNSEL FOR THE MOTHER: I am, your Honour. I have questioned her closely about this and I’m satisfied and I’m prepared to say to the court that ‑ ‑ ‑
HIS HONOUR: Yes.
COUNSEL FOR THE MOTHER: ‑ ‑ ‑ she is on board.
HIS HONOUR: Yes. Well, look, I wish to acknowledge the distance that the mother has obviously moved and to acknowledge that her movement I regard as highly child-focused and consistent with the sort of orders that I would ultimately have made in any event. So she shouldn’t, you know, regard herself as having moved further than she needed to and she is to be congratulated for revising her position to the extent that she has.
I then requested that my Chambers be provided with a Word version of the agreed orders and pronounced the orders. In doing so I enquired of the parties whether they intended to sign a minute of orders. Counsel for the father indicated that in light of the fact that on the transcript it will be apparent that both the parties were present during the discussion and agreed together with their counsel, there was no need for signatures to be obtained. Counsel for the mother stated that she agreed to this course: see Transcript 3 December 2020, pp 39-40.
At 5.06 pm on 3 December 2020, having made the final orders by consent, I adjourned the Court.
The Mother’s Complaint
On Monday 7 December 2020, the consent orders not having yet been published and uploaded to the Commonwealth Courts Portal, the Court received a communication from one Mr P, purportedly on behalf of the mother. Mr P advised that the respondent mother “respectfully withdraws her consent given (in her view) under duress, coercion and pressure” in circumstances where “no orders [had] yet [been] released”. This communication notified this Court that an application of some kind had been filed in the High Court of Australia or would be filed seeking to restrain this Court from “issuing [the] consent orders”. It would seem that, as of first thing this morning, this application has not been accepted for filing by the High Court Registry.
On Tuesday 8 December 2020 my Chambers wrote to the parties noting the suggestion that the mother wished to withdraw the consent she had given to the orders made by the Court on 3 December 2020 and listing the matter for mention at 10.00 am on Thursday 10 December 2020. The date of this mention was subsequently changed to today at 9.00 am to suit the convenience of counsel for the father and counsel for the ICL.
Later on 8 December 2020 the mother wrote to my Chambers by email confirming that “the sole issue I am withdrawing my consent for is vaccinations for Z”. The mother also indicated that she wished for her “personal Authorised Advocate”, Mr P, to speak on her behalf and she sought leave for Mr P to represent her at the mention. Mr P is not a legal practitioner.
When the matter came before the Court this morning the mother was self-represented, and she pressed her application to be represented by Mr P. The father was represented once again by Ms Mallett of counsel, and the ICL Mr Harper appeared. I dismissed the mother’s application to be represented by Mr P. The mother did not demonstrate that there were exceptional circumstances of a kind that would make it appropriate for her to have leave to be represented by Mr P. Mr P has not been admitted to practise, and he has not signed the High Court Roll of Practitioners. I do not consider that there would be any utility to the administration of justice in this case for Mr P to be permitted to represent the mother: see Belle & Vaughan [2012] FamCAFC 133; MG & MG (2000) FLC 93-034; Batey-Elton & Elton (2010) 43 FamLR 62; Damjanovic v Maley (2002) 55 NSWLR 149. I did indicate, however, that Mr P could assist the mother in the capacity of a McKenzie Friend, and the mother informed me that he was with her. It was apparent that he was providing her with some assistance in the submissions that she made to the Court.
It would seem that notwithstanding the assurances that she gave to her counsel and to the Court on 3 December 2020, the mother now seeks to withdraw her consent to the orders that have been made. Although she accepts that she did consent at the time, she now says, in substance, that her consent was given under “pressure and coercion” and in circumstances where she was not aware that the child had “constitutional rights”.
Counsel for the father submitted that the Court had pronounced orders on 3 December 2020, and that those orders have been made. The father’s position is that the only course open to the mother is to seek to have those orders set aside, and that she has not done so. Thus the father says that the orders made on 3 December 2020 stand, and that the only way this matter could be reopened in any way is pursuant to the liberty granted to apply at short notice as to the implementation of the orders until completion of the immunisation program. The father says that the actions of the mother and the material filed this week in relation to immunisation, which speak of forcible assault of the child being vaccinated, amongst other matters, are such as to cause him real concern that the mother will not be supportive of the child being immunised and vaccinated in accordance with the orders made on 3 December 2020. Thus he seeks a variation of orders 23, 24, 25(e) and Notation D of the orders, together with an order that unless agreed otherwise in writing the mother be restrained from attending any and all paediatric appointments/appointments with a general practitioner made for the purposes of having the child immunised or vaccinated.
Alternatively, counsel for the father submitted that if the Court took the view that the orders had not been made, then all of the evidence had been heard and it would be open to the Court to now decide those issues which the mother says are not by consent. In that event the amended orders now sought by the father are the orders that should be made. Counsel for the father pointed out, in this respect, that the mother had actually given evidence in chief that she agreed that the child should be vaccinated, and that as long as it could be done with special precautions at the B Hospital, this was all that she wanted. Her evidence in the witness box, on her affirmation, was that she would be able to remain calm and that she would be supportive of the vaccinations occurring and would support the child while they occurred. It is put on behalf of the father that the mother was either grossly misleading the Court in giving that evidence, or she is grossly misleading the Court now in seeking to withdraw her consent. The father’s position is that the child’s best interests must come first, and that she should not be exposed to the sort of language and fear in relation to vaccinations which the mother is now exhibiting. For this reason the fathers says, pursuant to the liberty to apply, the orders made on 3 December 2020 should be varied.
As to the question of whether the Court should regard the mother as having withdrawn her consent, and proceed to make the orders without the mother’s consent, the father’s position was that this would not be the correct course. He says that having made the orders there would not be a proper basis to allow the mother to withdraw her consent and that the Court does not have the power to make the orders on a fresh basis. He says that if it is accepted that the orders are already made, then the only course open would be some sort of application by the mother to set them aside. If they are not to be regarded as having been made by consent, and the Court makes the relevant orders, then the mother’s rights in terms of an appeal would be enlivened. The father’s position is that this would not be appropriate. He says that it would cause further delay and uncertainty and it would be wrong to open up an additional avenue to the mother to challenge the orders which would otherwise not be available.
Counsel for the father also pointed to the fact that just before the orders were pronounced, with the mother present on the Microsoft Teams link, she specifically questioned whether the mother understood the consent that she was giving, and whether she was fully in agreement and understanding of the implications, and the mother was given every opportunity to say that she did not do so. The relevant passages in this respect are set out above. It is put on behalf of the father that to allow the mother to withdraw her consent now would be deeply to manipulate the system. The mother should not, by the making of orders on the basis that she does not consent to them, have the opportunity opened up to her to appeal in circumstances where she consented fully and openly during the trial.
The ICL joins with the father in these submissions. He says that final orders were pronounced by consent finalising the matter, and if the mother now seeks to withdraw her consent she must satisfy the applicable rules of Court in seeking to have those orders set aside and she would need to make an application seeking to do so. On the question of whether I should regard the mother as having withdrawn her consent to the making of the orders and proceed to make orders of the Court that the child be vaccinated, having heard the evidence, the ICL’s position was that this course should not be adopted and indeed was not open in circumstances where the orders had already been made.
I accept, in substance, the submissions of the father and the ICL. Rule 17.01(1)(a) of the Family Law Rules 2004 provides that an order is made in a hearing or trial when it is pronounced in court by the judicial officer. That the orders of 3 December 2020 had not been formally entered on the Court’s computer system does not operate somehow to undermine the force of the orders pronounced in open court, or render them able to be unmade: see Melville v Melville (No 3) (2020) 61 Fam LR 280, [51]-[52] (Kent J). It is clear that the orders in relation to the child’s vaccination were pronounced in court by me late on Thursday 3 December 2020 in the face of the mother’s stated consent and the assurance of her counsel that she consented. I cannot now simply proceed on the basis that they were not made.
Liberty to Apply
Accepting that this is the position it is also to be accepted, as counsel for the father and the ICL submitted, that it would be appropriate for orders 23, 24, 25(e) and Notation D of the 3 December 2020 orders to be discharged pursuant to liberty to apply, and that a further order be made restraining the mother from participating in the child’s vaccinations, unless otherwise agreed by the father.
Very regrettably, it is plain that the mother does not support the child being vaccinated. Indeed, I consider that her opposition to the child being vaccinated, as the child’s principal carer, will likely complicate the process and make it much more difficult for the child. In these circumstances it would be counter-productive for the mother to accompany the father and the child to any medical appointments concerned with the vaccinations. I accept that the mother’s opposition to the vaccinations would be likely to cause distress to the child.
The mother’s position in this regard is to be lamented. It flies in the face of the evidence of Associate Professor D, a consultant paediatrician and infectious diseases physician at the B Hospital who had prepared a report dated 1 December 2019 which was in evidence at the trial. The mother’s position concerning vaccination is not child-focused, and it is not in the best interests of the child. It is not based on evidence, and on the evidence of Associate Professor D it may expose the child to harm.
There will accordingly be orders in the terms set out at the commencement of these reasons. If the mother is able to contain her own fears in relation to the child being vaccinated and support the orders that have been made, it may be expected that the father will involve her in the process as he has said he will do. That would unquestionably be in the child’s best interests, but it will require the mother to set her apprehensions to one side. It is to be hoped that she will be able to do so.
I certify that the preceding twenty-seven paragraphs (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 11 December 2020.
Associate:
Date: 11 December 2020
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