Covington & Covington - [2021] FamCAFC 52

FAMILY COURT OF AUSTRALIA

COVINGTON & COVINGTON

[2021] FamCAFC 52

FAMILY LAW – APPLICATION IN AN APPEAL – Stay – Application to stay an appeal pending determination by the High Court of Australia of an application to remove the appeal to that court pursuant to s 40 of the Judiciary Act 1903 (Cth) – None of the principles applicable to a stay application addressed by the applicant – The applicant mother contended that her consent to orders providing for the child to be vaccinated was withdrawn and thus those orders have no legal effect – In the absence of consent the orders contravene the prohibition on civil conscription provided for in s 51(xxiiiA) of the Constitution – No merit in these contentions – Application dismissed.

FAMILY LAW – COSTS – Respondent father and Independent Children’s Lawyer sought costs against the applicant mother – Applicant mother wholly unsuccessful – Where making a costs order in favour of the Independent Children’s Lawyer would cause the applicant mother to suffer financial hardship – Independent Children’s Lawyer’s application for costs dismissed – Applicant mother to pay the costs of the respondent father.

Commonwealth of Australia Constitution Act s 51(xxiiiA)

Family Law Act 1975 (Cth) s 65, s 67ZC, s 117
Judiciary Act 1903 (Cth) s 40
Victorian Public Health (No Jab, No Play) Act 2008 (Vic)

Allan and Ors & Allan and Ors (2014) FLC 93-606
Covington & Covington [2020] FamCA 1064
Covington & Covington (No. 2) [2021] FamCA 24
Covington v Covington & Anor (High Court of Australia, Steward J, 12 April 2021)
D & D (No. 2) [2010] FLC 93-435; [2010] FamCAFC 63
Mains & Redden [2011] FLC 93-478; [2011] FamCAFC 184
Re Kelvin (2017) FLC 93-809; [2017] FamCAFC 258
Wong v the Commonwealth (2009) 236 CLR 573; [2009] HCA 3

APPLICANT:

Ms Covington

RESPONDENT:

Mr Covington

INDEPENDENT CHILDREN’S LAWYER:

MMH Lawyers

FILE NUMBER:

MLC

9008

2019

APPEAL NUMBER:

SOA

2021

DATE DELIVERED:

16 April 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney by video link to Melbourne

JUDGMENT OF:

Strickland, Ryan & Aldridge JJ

HEARING DATE:

15 April 2021

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 December 2020

LOWER COURT MNC:

[2020] FamCA 1064

REPRESENTATION

THE APPLICANT:

Self-represented with
Mr P as McKenzie Friend

COUNSEL FOR THE RESPONDENT:

Ms Mallett

SOLICITOR FOR THE RESPONDENT:	Coulter Roache Lawyers Pty Ltd
SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr Harper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

MMH Lawyers

Orders 15 April 2021

Leave be granted to Ms Mann to appear on behalf of the B Hospital as amicus curiae for today’s hearing.
Leave be granted to Mr P to act as McKenzie Friend to the applicant mother for today’s hearing.
The Application in an Appeal filed on 13 April 2021 be dismissed.

Orders 16 April 2021

The oral application for costs made by the Independent Children’s Lawyer be dismissed.
The mother pay the costs of the father of and incidental to the Application in…

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.

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Details

AGLC: Covington & Covington [2021] FamCAFC 52
Case: [2021] FamCAFC 52
Decision Date: 16 April 2021

CaseChat Overview and Summary

The case involves a dispute between the mother and father of a child, with the matter being heard in the Family Court of Australia. The mother filed an application in an appeal against an earlier decision that required the child to be vaccinated. She argued that her consent to the vaccination orders had been withdrawn, rendering the orders ineffective and unconstitutional. The father and the Independent Children’s Lawyer sought costs against the mother. The mother also sought leave for a hospital and a McKenzie Friend to appear in the case.

The court was required to determine whether the mother's application to stay the appeal pending a decision by the High Court of Australia on her application to remove the appeal to that court should be granted. Additionally, the court had to decide on the costs application, considering the financial hardship that the mother might face if costs were awarded against her.

The court dismissed the mother's application to stay the appeal, finding no merit in her contentions that her consent was withdrawn or that the orders contravened the prohibition on civil conscription in the Constitution. The court also dismissed the application for costs by the Independent Children’s Lawyer due to the potential financial hardship it would cause the mother. However, the court ordered the mother to pay the father’s costs of the appeal.

Orders

Orders of the court

Orders 15 April 2021

1. Leave be granted to Ms Mann to appear on behalf of the B Hospital as amicus curiae for today’s hearing.

2. Leave be granted to Mr P to act as McKenzie Friend to the applicant mother for today’s hearing.

3. The Application in an Appeal filed on 13 April 2021 be dismissed.

Orders 16 April 2021

1. The oral application for costs made by the Independent Children’s Lawyer be dismissed.

2. The mother pay the costs of the father of and incidental to the Application in an Appeal fixed in the sum of $3,287.

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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