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Significant cases published April 2021

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Family Court of Australia – Full Court

Covington & Covington [2021] FamCAFC 52 (16 April 2021)

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the applicant – The applicant mother contended that her consent to orders providing for the child to be vaccinated was withdrawn and thus those orders have no legal effect – In the absence of consent the orders contravene the prohibition on civil conscription provided for in s 51(xxiiiA)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.

Legal Aid ACT & Westwell [2021] FamCAFC 50 (15 April 2021)

Costs of the Independent Children’s Lawyer – Whether provision of a lawyer through the Family Violence and Cross Examination of Parties Scheme in accordance with s102NA of the Family Law Act 1975 (Cth) constitutes receipt of legal aid pursuant to s117(4) – Meaning of “legal aid” – Appeal allowed – Matter remitted on a limited basis – No order as to costs.

Family Court of Australia

Covington & Covington (No. 3) [2021] FamCA 198 (13 April 2021)

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.

Eastley & Eastley (No. 4) [2021] FamCA 171 (30 March 2021)

FAMILY LAW – EVIDENCE – expert opinion – inapplicability of the opinion rule contained in the Evidence Act 1995 (Cth) – admission governed by relevance – relevance contingent upon opinion being the application of expertise in a manner similar to that required by the opinion rule.