Tag Archive for: Parenting Orders & Covid-19

With Christmas approaching and the world seemingly getting back to normal after Covid 19, many people will be thinking of taking a well-earned break to end 2020, either domestically or perhaps overseas.

Some people have family overseas and they may wish to take advantage of the holidays for a visit and to be reunited with loved ones. This is not at all an uncommon scenario with Australia hosting people from many diverse backgrounds, and unsurprisingly children from separated families may have grandparents or other extended family living in other countries.

Travel within Australia for separated families 

Separated parents will be faced with decisions for their children (their own and the other parent’s decisions) that may not have been an issue when they were together. In my experience, quite a common decision where disputes can arise is when one parent may want to take children on an interstate holiday. The reasons why this is an issue can be complex ranging from lack of trust post separation, concerns as to the capacity of the travelling parent to care for the child responsibly – to a parent feeling uncomfortable about a child being far away etc. 

The family law system recognises that making decisions for children is part of the responsibilities of parenthood. Further, where there is “equal shared parental responsibility”, section 65DAC Family Law Act 1975 (“the Act”) requires that parents consult with each other, make a genuine effort to make a joint decision, and that a decision is made jointly. This applies to decisions relating to “major long terms issues” defined in sections 4 of the Act as including things such as religion, health, change of name, living arrangements that would make a parent’s time significantly more difficult and education. 

An interstate holiday is not likely to be a major long-term issue. Section 65DAE of the Act provides that decisions that are not major long-term decisions don’t need to be made jointly and therefore an interstate holiday doesn’t need to be agreed to by the other parent. If there is an order, it would need to be taken during the travelling parent’s time – if children are at school it should be during school holiday time.

When an interstate holiday arises as an issue, sometimes a parent will seek a specific order regulating or preventing interstate travel. 

The Federal Circuit Court, Family Court or a State Court exercising jurisdiction under the Act has power to make this type of order in relation to a child. Section 64B(2)(i) allows the Court to make orders about “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”. Further power is contained within section 68B to restrain a person from entering or remaining in a specific area.

An order pursuant to section 64B requires that the Court treat the “best interests of the child” as the paramount consideration for the Judge exercising his or her discretion. Thus, a parent seeking to restrict the travel would need to establish why the order sought is in the best interests of the child. 

For an injunction pursuant to section 68B the Court would have regard to best interests and whether the order was appropriate for the welfare of the child. 

International travel for separated families 

In this context I’m talking about an overseas holiday and not a decision to relocate overseas. An international relocation would be a major long-term issue and required to be made jointly where there is equal shared parental responsibility.

If a proceeding is before the Court, or a parenting order has been made, a party is not permitted to remove a child from Australia without permission. Section 65Y and Section 65Z make it an offence punishable by up to 3 years imprisonment to remove the child from Australia without the written consent of the other parties.

If you are in the process of negotiating a parenting order, and you would like to take a child on a holiday overseas, permission of the other party ought to be obtained and recorded in the parenting order. This can be done on an interim or final basis. If you already have a final order and missed including an international travel clause, you will need written permission to go. 

Usually conditions will be agreed to/placed on the travel such as sufficient notice before travelling, restrictions on what country having regard to Government travel information such as Smart Traveller, a copy of the itinerary being provided to the other party, and contact details while overseas.

If no agreement is reached by the parents, then once again the Court has power to make an order allowing the overseas travel on an interim or final basis (the same power as for interstate travel).

The Court will treat the best interests of the child as paramount once again in making the order. Typically, in this situation the Court will be balancing the benefit to the child in experiencing the travel against any risk that a parent may not return the children to Australia. This is not a legal requirement, but it is the most common reason in my experience why a parent raises an objection to travel. Like with any Court application, evidence would be required to demonstrate why there is a risk a parent won’t return to Australia.

If a parent has concerns and wants to prevent a child’s international travel, they can take steps to place the name of the child on the Family Law Watchlist through the Federal Police. This would prevent a child being removed pending an application to the Court being made with respect to the child. 

If a child’s name is placed on the Family Law Watchlist and later orders are made for travel, it is important to make sure that the child’s name has been taken off the Watchlist before travelling and take a copy of the sealed order to the airport with you.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. 

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

I have noticed that as the Covid-19 crisis has continued, many parents have sought advice as to whether the lock down and restriction of movement means parenting orders no longer need to be complied with. 

In some case I have seen parents use Covid 19 as an excuse to breach orders in circumstances that in my view represents a clear breach. I currently have instructions to file proceedings on one such matter. 

Unfortunately, there is never an easy answer to whether a decision to breach an order amounts to a “reasonable excuse” and Covid 19 is not something we have seen before. 

Helpfully the Family Court and Federal Circuit Court of Australia have released a statement from the Honourable Will Alstergren, Chief Justice and Chief Judge of those courts, to assist the public and provide guidance.

Are the courts closed during Covid-19?

No. The courts are open and hearing cases. Most courts have however modified their procedures to decrease the necessity for personal contact. This means more court appearances being heard by electronic means (telephone or video). 

There are also procedures to increase the use of electronic documents (discussed in my previous blog on this topic) and since then a move away from requiring signatures on Affidavits (see Joint Practice Direction 2:JPD 2 of 2020 – Special measures in response to Covid-19).

The Attorney General Department has also classified legal services as “essential” and thus family lawyers and courts are available to assist people in need for the duration of the crisis.

General guidance for parents during Covid-19

Every family is different, every situation involving children is different so no written statement can ever substitute for advice from a Brisbane Family Lawyer or Gold Coast Family Lawyer.

His Honour however has penned 14 points which I will paraphrase here, that are very helpful in guiding people to make the best choices at this difficult time. 

  1. Act in the best interests of your children, particularly with regard to safety and wellbeing. Courts make orders in the best interests of children but day to day decisions are the responsibility of parents.
  2. Consistent with best interests is continuing to comply with Orders for time and communication.
  3. Situations may arise that make compliance impossible i.e. if a Contact Centre is closed. Other situations may raise an immediate safety risk – such as where a parent or person close to them has Covid 19. These situations may amount to a “reasonable excuse” not to comply. However, a in such a situation a Judge would need to agree with you on a contravention application. 
  4. As a first step, parents should communicate with each other (if it is safe to do so). This ought to be conducted “reasonably and sensibly” and aimed at achieving a practical solution to the issue. 
  5. If there is going to be a change to arrangements, even for a short time, they should be reduced to writing so everyone understands the agreement. 
  6. If people need guidance with an agreement, there are services such as the Family Relationship Advice line (1800 050 321) that can provide assistance and family dispute resolution services. 
  7. Lawyers such as Hooper Mill Family Lawyers can also assist with mediation service and helping negotiate an agreement. 
  8. If necessary, Consent Orders can be filed electronically.
  9. If parents can’t agree or it is unsafe to negotiate, and there are real concerns, the parents may approach the court electronically for a variation to orders.
  10. Where there is no agreement, parents should keep the children safe until the dispute can be resolved. Further, if time is stopped there should be some contact between the other parent and children.
  11. Act reasonably. Section 70NAE Family Law Act 1975 makes “reasonable excuse” a defence to a contravention and therefore a matter relevant to the court.
  12. If the strict letter of the orders cannot be adhered to, parents should ensure the purpose or spirit of the orders is respected.
  13. If there is some immediate danger to a child contact the police.
  14. Perpetration or threats of family violence is never in a child’s best interests.

His Honour went on to clarify that the community can be assured the court will continue to perform their duties during the Covid-19 crisis.

Family Dispute Resolution (such as mediation) during Covid-19

It remains the case that Section 60I Family Law Act 1975 must be complied with requiring that before commencing court proceedings (unless one of the matters in Section 60I(9) applies) parents must attend mediation before filing proceedings in a court for a parenting order.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. 

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

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