The recent increase in Covid-19 cases within Victoria has caused there to be further discussion between state governments regarding cross border travel restrictions which continues to present unprecedented complexity in the context of separated families and parenting orders.
Parenting orders in family law matters often provide for children to spend time in two households with interstate travel sometimes being a common feature. Currently, Victoria, NSW and ACT borders remain open. Western Australia, South Australia, Queensland, the Northern Territory and Tasmania remain closed.
The Family Court recently considered the impact of Covid-19 and interstate travel in the case of Kardos & Harmon  FamCA 328 (7 May 2020) (“Kardos & Harmon”). The relevant factors were as follows:
- The Father brought proceedings against the Mother alleging she had contravened Final Orders made in December 2018 with respect to spend time arrangements for their 3 year old child.
- The Father lived in Brisbane and the Mother and child lived in Adelaide. Pursuant to Final Orders, the child spent time with the Father for 4 days, falling in the last week of each month. Changeover was to occur at Darwin Airport, or alternatively Brisbane Airport if the Father provided the Mother with advance notice of 90 days.
- As the Covid-19 pandemic began to escalate in Australia, the Mother suggested to the Father that he spend time with the child in Adelaide to reduce the child’s risk of exposure to the virus from plane travel. The Mother confirmed she held significant concerns regarding the child’s health and wellbeing.
- On 22 March 2020, a Major Emergency was declared in South Australia with respect to the Covid-19 pandemic with cross border travel being restricted. The Mother did not facilitate time between the child and Father in March and April.
- The Father issued proceedings in the Family Court on an urgent basis alleging the Mother had contravened the Final Orders by not delivering the child to Brisbane Airport and she had no reasonable excuse not to do so.
- The Mother contended that she did not facilitate time due to:
- her concerns regarding the child being exposed to Covid-19 during interstate travel; and
- the cross border travel restrictions that were in place in South Australia at that point in time mandating that, she and the child would have to self-isolate for a period of 14 days upon returning to South Australia.
- Importantly, the Mother had communicated to the Father:
- On 14 April 2020, the Emergency Management (Cross Border Travel No. 3) (COVID-19) Direction 2020 was issued which provided that all people who arrived in South Australia must ensure they are able to self-isolate for a period of 14 days; and
- On 23 April 2020, the South Australian Police advised that essential travel on compassionate grounds does not relate to Court Orders.
- The Father’s position was that travel on “compassionate grounds” and under the “compulsion of the law” were exempt from the cross border restrictions.
Did the Mother have a reasonable excuse to not facilitate time?
The Father’s contravention application ultimately failed as there was no evidence to suggest that he had provided the Mother with written notice within a 90 day period that changeover should occur in Brisbane.
The Court considered that if the Father had provided the Mother with written notice, the Mother would have had a reasonable excuse for failing to take the child to Brisbane Airport to spend time with the Father due to the following factors:
- The Mother had a clear and identifiable concern regarding the child’s health which was communicated to the Father by email prior to her suspending time.
- The Mother reasonably believed that by not allowing the child to spend time with the Father was necessary to protect the health of the child and the Mother. The relevant factors included:
- the Mother would not have been able to maintain safe social distancing during the period of the aircraft travel; and
- there was an unacceptable risk that the child would come into close contact with a person infected by the virus during the course of the aircraft travel.
The Final Orders were varied to allow the Father to spend time with the child in Adelaide with the cost of travel to be shared between the parties. Both the Mother and Father acknowledged the importance of the child spending time with both parents.
Did the Court consider Cross-Border travel restrictions?
Whilst it was not the deciding factor in this case, the Court made comment that had it been necessary, it would have found that the Mother had a reasonable excuse for contravening parenting orders due to cross-border travel restrictions.
Importantly the Court emphasised, “in other words, orders made by the Family Court of Australia or the Federal Circuit Court of Australia pursuant to pt VII of the Family Law Act are intended to operate in the context of the restrictions and sanctions imposed by State and Territory governments including those imposed for the protection of the broader community.”
What should we learn from this?
The Chief Justice of the Family Court has released guidelines for parents and cares of children which make clear that they must act in the best interests of the child and comply with parenting Orders, where it is safe to do so.
As evidenced by Kardos & Harmon, there may be circumstances in which parenting Orders are untenable and unable to be complied with such as:
- restrictions on cross-border travel;
- one parent is unwell, or unable to care for a child due to Covid-19;
- a child may be required to self-isolate;
- a parent may withhold a child from another parent due to safety concerns (with or without basis);
- changeover locations may not be available; and
- supervised contact centres may be closed.
If you find yourself in a situation where it is difficult to comply with your parenting Orders, it is vital that you initially communicate with the other parent in an attempt to reach a practical and reasonable resolution.
How we can help
In the event you are unable to reach a resolution, it may be possible to vary your parenting Orders through negotiations, mediation, or if necessary litigation. The Family Court has recently established a specialised COVID-19 List which enables urgent matters to be listed before the Court that are a direct result of the pandemic.
When considering varying your parenting Orders, it is important to obtain legal advice to ensure that any changes made are applicable to the current climate rather than on a final basis. For further information and guidance please do not hesitate to contact us.