Covington & Covington (No. 3)
[2021] FamCA 198
•13 April 2021
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 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).
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).
EX TEMPORE REASONS FOR JUDGMENT
MCEVOY J:
Before the Court is an Application in a case dated 12 April 2021, supported by an Affidavit made on the same day by the father, Mr Covington.
The father seeks the following relief:
(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 are 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 commence 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 have be 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 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)In the event the Mother fails to make Z available for collection pursuant to Order 2 (a) herein the child Z (born 15th March 2010) is ordered to be delivered to the care of her Father, a recovery order do issue authorising/directing the Marshall, all officers of the Australian Federal Police and all officers of the police forces of all the States and Territories of the Commonwealth of Australia with such assistances as may be required and if necessary, by force:
(a)to find and recover the child Z and deliver her to her father at Q Street N Town Vic, or such other place as the father and the person affecting such recovery agree to be appropriate; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the said child may be found.
(5)The Independent Children’s Lawyer and a Family Consultant of the Family Court of Australia be directed to explain these Orders to Z.
(6)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.
The father in his proposed minute of orders seeks that the following additionally relevant matters be noted:
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 14 April 2021 seeking an interlocutory injunction. On 12 April 2021 Reasons for Judgment were delivered, in summary, dismissing the Mother’s application
As Steward J observed yesterday in his decision dismissing the mother’s application for an interlocutory injunction in the High Court of Australia, this matter has had an unfortunate history: Covington & Covington & Anor, No. M12/2021, HCA, 12 April 2021, [2]. It has already been before this Court as presently constituted on two occasions and it is the subject of the judgments in Covington & Covington [2020] FamCA 1064 and Covington & Covington (No 2) [2021] FamCA 24.
In Covington & Covington (No 2) the mother sought a stay of the orders of the Court made by consent on 3 December 2020. At paragraphs [3]-[7] of my judgment I recounted the background facts relevant in Covington & Covington [2020] FamCA 1064 in the context of which the relevant orders had originally been made. It is unnecessary to set those matters out again here.
It is, however, desirable to refer once again to the observations I made in Covington & Covington [2020] FamCA 1064 at paragraphs [25]-[27], in relation to the need for the further orders, as these matters remain centrally relevant on the father’s application today. They were as follows:
[25] 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.
[26] 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 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.
[27]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.
As will be apparent, and as counsel for the father submitted, the mother has not been able to set aside her apprehensions. Indeed in the period since 27 January 2021 when the mother sought a stay of the 3 December 2020 orders, the mother has continued actively to oppose the program of vaccinations which has been approved by orders of this Court. The mother has opposed these orders to such an extent that there is evidence that she has worked the child into a state of near hysteria such that she has refused to go into the father’s care in accordance with the arrangements that the parties agreed on 3 December 2020.
It is in this context that the father brings the present application, which is supported by the ICL. The father’s affidavit of 12 April 2021 deposes to his organisation of a sensible program of vaccinations for the child supervised by appropriately qualified medical professionals at B Hospital. The father has informed the mother of his proposals, but she has ignored these communications. Instead it would seem that the mother has continued to wage war against the orders to which she consented on 3 December 2020. She has commenced separate proceedings in the Supreme Court of Victoria, she has appealed the 3 December 2020 orders in this Court and, that appeal having been deemed to be abandoned, she has successfully applied to have it reinstated, she has appealed the orders of 27 January 2021 in this Court dismissing her stay application (albeit that she was subsequently deemed to have abandoned that appeal) and, last week, she made an application for an interlocutory injunction in the High Court seeking to restrain the commencement of the vaccination schedule. This latest application was, as has been observed, dismissed by the High Court in orders made by Steward J yesterday.
The mother has not confined herself to making applications in various courts, State and Federal. As has been mentioned, she has withheld the child from the father now for several days, and she has admitted in open Court today that she informed the child that the father is intending to have her vaccinated this week. According to text messages sent by the mother to the father, the child has become highly distressed at the prospect of being harmed by vaccination to the point that she is inconsolable, and will not stop sobbing or hugging a bucket.
The mother’s actions in this regard may fairly be described as deplorable. They are the very antithesis of child-focused, and they have elevated her own irrational and unscientifically based fears above the best interests of her daughter in circumstances where her daughter is now, quite properly, attending mainstream schooling and has more need for vaccinations than ever.
In a document which she has called an affidavit and provided to the Court and to the parties today, the mother contends as follows:
This affidavit is made in support of my RESPONSE TO Application In A Case TO OPPOSE ORDERS in Application in a Case from Mr Covington which opposes all orders sought and requests orders as follows:
1.Orders setting aside, dismissal or withdrawal of said application of Mr Covington on the basis that the Family Court cannot order that my withdrawal of consent to vaccinations is invalid; and cannot rule that consent is given when it is not, as demonstrated by my arguments and HCA statute and case law citing in said affidavit I have submitted today.
2.Orders that this hearing be adjourned pending HCA constitutional interpretation of s 51(xxiiiA) rights claimed.
3.Orders that no forced vaccinations can proceed as such forced vaccinations against my daughter’s consent and my consent constitute an assault and battery.
4.Orders that the patient-doctor relationship overrides any other factor in law, and consent must be given for vaccines to proceed and must not proceed where no consent exists as in this case.
I take these contentions to be, in effect, submissions which the mother has developed in argument before the Court today.
The mother’s submissions as outlined in her affidavit and developed in argument are to be rejected. This Court does have the power to make the orders sought by the father today. The 3 December 2020 orders expressly reserved, in order 42, the right for the parties to apply at short notice in relation to the implementation of the orders until the completion of the immunisation program. It was also expressly noted in the orders of 27 January 2021 that in the event that the mother did not facilitate compliance with the final orders of 3 December 2020, then the father and the ICL had liberty to apply to my Chambers for an urgent hearing of the matter.
It should also be observed that the mother’s argument based on s 51(xxiiiA) of the Constitution has been rejected in this Court and in the High Court. Orders have been made in this Court to facilitate the vaccination of the child. The vaccination of the child is, in these circumstances, entirely lawful. The mother’s contention that somehow for the vaccinations to proceed would be an assault and battery and in breach of the patient-doctor relationship is entirely misconceived, erroneous, and must be rejected.
Accordingly I have no hesitation in making the substantive orders sought by the father, save that it will be unnecessary to make the recovery order given that the mother has brought the child to the Child Minding Centre within the Family Court this afternoon. The evidence before the Court at the trial was that vaccination was desirable, and it was very unlikely that the child would have any adverse reaction to it. In these circumstances, and orders having being made, the only appropriate course is for the schedule of vaccinations to proceed, at B Hospital, appropriately supervised, as planned. The mother has shown that she is incapable of supporting this, and indeed that she is actively hindering the process. I am satisfied that her conduct in this regard is doing real harm to the child, and that it must be stopped. It is therefore necessary that the father have the primary care of the child until the schedule of vaccinations is complete, and I will so order pursuant to the liberty to apply provision in order 42 of the 3 December 2020 orders.
In relation to the question of costs, it has been the father’s position that he is of limited means and he is unable to continue to fund litigation with the mother in relation to the child’s vaccination in multiple courts. It is submitted that the present application has been necessitated entirely by the mother’s conduct and that she should be required to pay the father’s costs of this application in the very modest amount of $3,287.00. The mother opposes this application, contending that she does not have the money to pay the costs and should not be required to do so. She says that she is obligated to fight for what she characterises as her daughter’s right to choose not to be vaccinated, and indeed that she will go on fighting for this asserted right.
In all the circumstances, and notwithstanding the mother’s claim that she is not in a position to pay the father’s costs, I am satisfied for the purposes of s 117(2) of the Family Law Act 1975 (“the Act”) that there are circumstances that justify an award of costs in favour of the father. Insofar as it is necessary to have regard to the matters set out in s 117(2A) of the Act in coming to this view, I have had regard to the following matters in particular. First, I am conscious that both of the parties are relatively impecunious (s 117(2A)(a)). Although the father has greater access to funds by reason of his paid employment than the mother, neither of them have access to significant financial resources and I accept that the financial burden on the father of responding to the mother’s unending applications is high. Secondly, and significantly, I have had regard to the conduct of the parties to the proceedings in relation to the proceedings (s 117(2A)(c)) and whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court (s 117(2A)(d)). I accept the father’s submission that his application today has been brought about entirely by the mother’s egregious conduct in withholding the child and terrorising her with the prospect of imminent vaccination which will be harmful to her, both of which are in violation of the terms of the 3 December 2020 orders. Also relevant is that the mother has been wholly unsuccessful on the father’s application today (s 117(2A)(e)). In my assessment it would be entirely inappropriate for the father to be required to go on funding repeated defences of the mother’s efforts to prevent the child being vaccinated. Enough is enough, and the time has come for the mother to be visited with the father’s costs of dealing with her unacceptable behaviour. Accordingly I accept that the circumstances justify the mother being required to pay the father’s costs of this application in the amount of $3,287.00.
The orders of the Court will thus be as set out at the commencement of these reasons.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate:
Dated: 14 April 2021
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