Parents Dispute Child's Vaccination
Brown v Brown [2022] NSWSC 16 (14 January 2022)
The parties are in dispute over COVID-19 vaccination of child subject to family law proceedings. The plaintiff invokes that extraordinary circumstances for exercise of jurisdiction exist. The Court, in determining this dispute, relied upon relevant jurisprudence.
Facts:
The plaintiff, Mrs Brown, filed an urgent application, in the parens patriae jurisdiction of the Court to prevent her ex-partner, Mr Brown, from permitting a COVID-19 vaccination to be administered to the child of their relationship, who is currently seven and a half years old.
The urgency was that for this week, but concluding today, Mrs Brown had an access visit with her daughter pursuant to orders made in the ongoing Family Court proceedings. Mrs Brown also candidly informed the Court that Mr Brown has been awarded sole parental responsibility for their daughter, which in the ordinary course would mean that it was within his power to determine without reference to Mrs Brown whether or not their daughter should be vaccinated.
The summons filed by Mrs Brown sought, in effect, a final order preventing Mr Brown from allowing the vaccination.
Mrs Brown has today informed the Court that she complied with the order for service and has also attempted to telephone Mr Brown. Mr Brown has not appeared this afternoon at the return of the summons notwithstanding further attempts to telephone him by Mrs Brown and a further email from the Court's tipstaff to him.
Miss Brown is in the course of being returned to him and, if what the Court proposes to do is to have any efficacy, it will be necessary for Mr Brown to be restrained from causing or permitting any COVID-19 vaccine to be administered to Miss Brown while Mrs Brown's application is pending in the Family Court.
Mrs Brown has undertaken to this Court that she will file an application in the COVID-19 List of the Family Court no later than next Monday (the FC Application).
Issue:
Whether or not the parens patriae jurisdiction of the Court may be invoked to resolve the question of whether or not Miss Brown should be vaccinated.
Applicable law:
Covington v Covington [2021] FamCAFC 52 - considered the jurisdiction of the Family Court to make orders in relation to the vaccination of children (although not concerning COVID-19).
Mains v Redden [2011] FamCAFC 184 - a well-developed jurisprudence in relation to disputes between parents about whether or not a child should be vaccinated, which well predates the current pandemic.
Analysis:
Had Mr Brown appeared, the Court would have sought an undertaking from him to preserve the status quo while the FC Application was determined, but in his absence it will be necessary for the Court to lay an injunction. The parens patriae jurisdiction of this Court is only to be invoked in extraordinary circumstances. As part of that jurisprudence, this Court will generally not exercise that jurisdiction when there is a specialist court charged with responsibility for the particular issue that is raised.
It is both a specialist court familiar with this issue and has in place a specialist list to enable the urgent determination of questions concerning vaccination and other matters arising from the COVID-19 pandemic. The Court has every confidence from the material on the Family Court website, and from enquiries made by my chambers to the Registry of the Family Court, that Mrs Brown's application will be promptly dealt with once received.
Conclusion:
The Court concluded that it is not appropriate to exercise the parens patriae jurisdiction to determine whether or not Miss Brown should be vaccinated against COVID-19. The Court will lay an injunction against Mr Brown for the limited purpose of preserving the status quo while the matter is dealt with in the Federal Circuit and Family Court of Australia (the Family Court).
