Covington & Covington - [2020] FamCA 1064

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

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…

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 & Covington

Details

AGLC: Covington & Covington [2020] FamCA 1064
Case: [2020] FamCA 1064
Decision Date: 11 December 2020

CaseChat Overview and Summary

In the matter of *Covington & Covington*, McEvoy J of the Family Court of Australia considered a dispute arising from consent orders made in final parenting proceedings. The mother sought to withdraw her consent to the orders, alleging duress, coercion, and pressure from her legal representatives. She also sought leave to be represented by a non-legal practitioner. The father applied to vary the consent orders to exclude the mother from the child's vaccination process due to her opposition to vaccination, which he contended would be distressing for the child.

The court was required to determine whether the mother could withdraw her consent to the orders after they had been pronounced in court, and if not, whether she could be granted leave to be represented by a non-legal practitioner. Furthermore, the court had to consider whether the consent orders should be varied to exclude the mother from the vaccination process, and if so, on what basis.

McEvoy J found that pursuant to rule 17.01(1)(a) of the *Family Law Rules 2004*, the consent orders were made and in effect when pronounced in court, not when published. Consequently, the mother could not unilaterally withdraw her consent without an application to set aside the orders. The court also found no exceptional circumstances to permit representation by a non-legal practitioner, though leave was granted for such a person to assist as a McKenzie Friend. Regarding the father's application, the court determined that the evidence indicated allowing the mother to be involved in the vaccination process would be distressing for the child and not in her best interests.

Accordingly, the court varied the final consent orders. The father was permitted to attend paediatric appointments for the child's vaccination and was primarily responsible for taking the child to such appointments. The mother was restrained from attending any paediatric or general practitioner appointments made for the purpose of immunising or vaccinating the child, unless otherwise agreed in writing. The father was also ordered to ensure his conduct during appointments was calm and co-operative, and that the child was not exposed to conflict or distress.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.