Covington & Covington (No. 3)

Case [2021] FamCA 198


FAMILY COURT OF AUSTRALIA

Covington & Covington (No. 3) [2021] FamCA 198

File number(s): MLC 9008 of 2019
Judgment of: MCEVOY J
Date of judgment: 13 April 2021
Catchwords:

FAMILY LAW – CHILDREN – Urgent Application – where final parenting orders were previously made by consent – where the mother commenced further proceedings in various courts including the High Court of Australia for an interlocutory injunction to restrain the commencement of the child’s vaccinations  – where the father sought a change of residence for the period of the child’s vaccination schedule – where orders were made for the child to live with the father and spend time with the mother until the vaccination schedule is completed.

FAMILY LAW – COSTS – where the father sought costs incidental to his urgent application – where the mother resists an order for costs – where the present application has been necessitated entirely by the mother’s conduct – where the mother was wholly unsuccessful – where the mother was ordered to pay the father’s costs in fixed sum.

Legislation: Family Law Act 1975 (Cth) s 117
Australian Constitution s 51(xxiiiA)
Cases cited:

Covington & Covington & Anor, No. M12/2021, HCA

Covington & Covington (No 2) [2021] FamCA 24

Covington & Covington [2020] FamCA 1064

Number of paragraphs: 18
Date of hearing: 13 April 2021
Place: Melbourne
Counsel for the Applicant: Ms Mallett
The Respondent: In Person
Solicitor for the Independent Children's Lawyer: MMH Lawyers

ORDERS

MLC 9008 of 2019
BETWEEN:

MR COVINGTON

Applicant

AND:

MS COVINGTON

Respondent

MATTHEW HARPER

Independent Children’s Lawyer

ORDER MADE BY:

MCEVOY J

DATE OF ORDER:

13 APRIL 2021

THE COURT ORDERS THAT:

1.The matter be listed for hearing on an urgent basis and all times for service be abridged.

2.Subject to Order 3 herein, for the purpose of enforcing Orders 22 to 26 of the Final Orders dated 3 December 2020 (“the Final Orders”) the following take place:

(a)Z be collected by the Father from the Child Minding Centre of the Family Court of Australia on 13 April 2021.

(b)Z live with her Father.

(c)Z spend time with her Mother each alternate weekend commencing on 23 April 2021 from the conclusion of school on Friday or 3.30 pm if a non-school day until 4.00 pm on Sunday and for the purposes of changeover the Mother collect Z at the commencement of time and the Father collect Z at the conclusion of time.

(d)The arrangement provided for in Order 2 (a) to Order 2 (c) continue until 15 August 2021 or until the third phase of the vaccinations has been completed, whichever date is sooner.

(e)Following the date referred to in Order 2 (d), the parenting arrangement return to that as indicated in the Final Orders dated 3 December 2020 as if it were Week One of the cycle.

(f)In the event the Mother fails to return Z to the Father as provided for herein, the Father have liberty to contact the Chambers of Justice McEvoy by way of email…

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AGLC
Covington & Covington (No. 3) [2021] FamCA 198
Case
[2021] FamCA 198
Decision Date

CaseChat Overview and Summary

In the matter of *Covington & Covington (No. 3)*, McEvoy J of the Family Court of Australia considered an urgent application brought by the father concerning parenting arrangements for the child, Z. The dispute arose following final parenting orders made by consent on 3 December 2020. The mother had initiated further proceedings in various courts, including the High Court of Australia, seeking to restrain the child's vaccinations. In response, the father sought a temporary change of residence for Z during the period of her vaccination schedule.

The court was required to determine the appropriate parenting arrangements for Z during her vaccination schedule, considering the mother's actions in seeking to prevent these vaccinations and the father's application for a change of residence. Additionally, the court had to consider the father's application for costs associated with his urgent application, given the mother's opposition to such an order.

McEvoy J reasoned that the urgent application was necessitated by the mother's conduct and her unsuccessful attempts to prevent the child's vaccinations. The court applied principles of family law concerning the best interests of the child and the need to enforce existing orders. The court ordered that Z live with her father and spend time with her mother on alternate weekends until 15 August 2021 or until the completion of the third phase of her vaccination schedule, whichever date was sooner. Following this period, the parenting arrangements were to revert to those stipulated in the final orders. The court also ordered the mother to pay the father's costs in a fixed sum of $3,287.00, noting that the mother had been wholly unsuccessful in her applications.

Orders

Orders of the court

MLC 9008 of 2019

BETWEEN:

MR COVINGTON

Applicant

AND:

MS COVINGTON

Respondent

MATTHEW HARPER

Independent Children’s Lawyer

ORDER MADE BY:

MCEVOY J

DATE OF ORDER:

13 APRIL 2021

THE COURT ORDERS THAT:

1. The matter be listed for hearing on an urgent basis and all times for service be abridged.

2. Subject to Order 3 herein, for the purpose of enforcing Orders 22 to 26 of the Final Orders dated 3 December 2020 (“the Final Orders”) the following take place:

(a) Z be collected by the Father from the Child Minding Centre of the Family Court of Australia on 13 April 2021.

(b) Z live with her Father.

(c) Z spend time with her Mother each alternate weekend commencing on 23 April 2021 from the conclusion of school on Friday or 3.30 pm if a non-school day until 4.00 pm on Sunday and for the purposes of changeover the Mother collect Z at the commencement of time and the Father collect Z at the conclusion of time.

(d) The arrangement provided for in Order 2 (a) to Order 2 (c) continue until 15 August 2021 or until the third phase of the vaccinations has been completed, whichever date is sooner.

(e) Following the date referred to in Order 2 (d), the parenting arrangement return to that as indicated in the Final Orders dated 3 December 2020 as if it were Week One of the cycle.

(f) In the event the Mother fails to return Z to the Father as provided for herein, the Father have liberty to contact the Chambers of Justice McEvoy by way of email seeking an urgent recovery order be administered in Chambers.

3. The Father be at liberty to provide a copy of these orders to:

(a) Z’s school or any school in which Z may be enrolled in the future;

(b) Z’s medical practitioners;

(c) The Magistrates’ Court of Victoria; and

(d) any other Court in which there is an application involving either of the parties.

4. The Independent Children’s Lawyer and a Family Consultant of the Family Court of Australia be directed to explain these Orders to Z.

5. The Mother pay the Father's costs associated with the Application in the sum of $3,287.00 within twenty-eight days of the date of these Orders.

6. The Father’s Application in a Case filed 12 April 2021 be otherwise dismissed.

AND THE COURT NOTES

A. The first phase of the vaccination schedule is to be administered at B Hospital on 15 April 2021 at 8.30 am.

B. Z was to spend time with the Father for the second half of the school holidays commencing 10 April 2021. Z was not made available to spend time with the Father.

C. The Mother lodged an application to the High Court of Australia on 8 April 2021 seeking an interlocutory injunction. On 12 April 2021 Reasons for Judgment were delivered, in summary, dismissing the Mother’s application

Note: The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

Background

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Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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