Ingate & Swinton - [2022] FedCFamC1F 222

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ingate & Swinton [2022] FedCFamC1F 222

File number(s): MLC 7467 of 2017

Judgment of: STRUM J

Date of judgment: 9 March 2022

Catchwords:
FAMILY LAW – CHILDREN – Medical procedures – COVID-19 vaccination – Where the applicant mother seeks to have the child vaccinated against the COVID-19 virus – Where the respondent father opposes – Where the father contends that the Court does not have jurisdiction to make orders in relation to the vaccination of the child without the consent of both parents – Where it was found that the Court does have jurisdiction – Where orders were made for the mother to have sole parental responsibility in relation to vaccination.

FAMILY LAW – COSTS – where the mother sought costs incidental to her application – Where the father resists an order for costs – Where the father was wholly unsuccessful – Where the father was ordered to pay the mothers costs at scale.

Legislation:
Commonwealth of Australia Constitution Act ss 51(xxii), 51(xxiiiA), 76

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61D, 64B, 65AA, 65D, 117

Federal Circuit and Family Court of Australia (Family Law Rules) 2021 rr 2.13, 2.18

Judiciary Act 1903 (Cth) ss 40, 78B

Cases cited:
Covington & Covington [2021] FLC 94-014; [2021] FamCAFC 52

Covington v Covington & Anor [2021] HCASL 179

Dacombe & Paddison, [2021] FedCFamC1A 103

Kingsford & Kingsford [2012] FamCA 889

P & P (1994) 181 CLR 583; [1994] HCA 20

Secretary, Department of Health and Community Services v JWB and SMS (“Marion’s Case”) (1992) 175 CLR 218; [1992] HCA 15

Division: Division 1 First Instance

Number of paragraphs: 80

Date of hearing: 9 March 2022

Place: Melbourne, via Microsoft Teams

Counsel for the Applicant: Ms Fisken

Solicitor for the Applicant: Lander & Rogers

Counsel for the Respondent: The Respondent appeared in person

Counsel for the Independent Children’s Lawyer Ms Agresta

Solicitor for the Independent Children's Lawyer: Creative Family Law Solutions
ORDERS

MLC 7467 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS SWINTON

Applicant

AND:
MR INGATE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

STRUM J

DATE OF ORDER:

9 MARCH 2022

THE COURT ORDERS THAT:
1.The Respondent Father have leave to make an oral application for a stay of the Mother’s Application in a Proceeding filed 17 February 2022.
2.The Respondent Father’s oral application for a stay be dismissed.
3.The Applicant Mother have sole parental responsibility for all decisions relating to immunisation and vaccination against Covid-19 for the child X born in 2013 (“the child”),
And for the avoidance of doubt, the Mother be solely authorised to facilitate for the child to receive a first and second dose of a Covid-19 vaccine as recommended by the child’s treating medical practitioner, Dr B, or any other medical practitioner or pharmacist upon whom the child attends who is authorised to administer the Covid-19 vaccine, in such dose and such frequency as recommended by…

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 Ingate & Swinton

Details

AGLC: Ingate & Swinton [2022] FedCFamC1F 222
Case: [2022] FedCFamC1F 222
Decision Date

CaseChat Overview and Summary

This case involved an application by the mother, Ms Swinton, seeking orders for her son, X, to be vaccinated against COVID-19. The father, Mr Ingate, opposed the application. The matter was heard by Strum J in the Federal Circuit and Family Court of Australia. The legal issues before the court were whether the court had jurisdiction to make orders in relation to the vaccination of the child without the consent of both parents, and whether it was in the best interests of the child to be vaccinated. The court found that it did have jurisdiction to make such orders and that it was in the best interests of the child to be vaccinated. The court relied on previous cases, including Covington & Covington, Dacombe & Paddison, and Marion’s Case, which established that the Family Law Act confers upon the court the power to make an order authorising a person to carry out on a child a medical treatment that is intended or reasonably likely to have the effect of rendering the child immune to COVID. The court also found that the father's opposition to the application was wholly unsuccessful, and therefore, ordered the father to pay the mother's costs for counsel, at scale, for the hearings on 7 and 9 March 2022, fixed in the total sum of $2,500.

Orders