covid19-law.com.au
8. Family
B. Parenting Orders
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Chief Justice's statement
However, on 26 March 2020, the Chief Justice of the Family Court made a Statement about "Parenting Orders and COVID-19", which contains general guidance about parenting orders during the COVID-19 pandemic. The guidance in that statement has been considered by the Family Court in determining disputes about parenting orders. See, for example, Biondi v Koen [2020] FamCA 201, [2].
iii. Case law
Government restrictions in response to the COVID-19 pandemic do not supply a general basis for not complying with the terms of parenting orders made under the Family Law Act 1975 (Cth): Mafton & Salmet (No.2) [2020] FCCA 903, [31]. Similarly, in the absence of evidence concerning specific risks posed to a child, the pandemic is unlikely to pose an “unacceptable risk” to a child, warranting variation of a parenting order: Mafton & Salmet (No.2) [2020] FCCA 903, [32]-[33].
At a general level, restrictions introduced in response to the pandemic may bear upon the relevance of certain aspects of parenting orders made under the Family Law Act 1975 (Cth) — for example, those relating to parents’ facilitation of their children’s participation in sport: Galanis & Galanis [2020] FCCA 564, [51]. However, in Biondi v Koen [2020] FamCA 201, the Court observed (at [16]) that the Victorian "Stay at Home Directions" expressly did not prevent a child from residing in the houses of two different parents.
The requirements of social distancing and isolation may also bear on a court’s decision as to the appropriate location for delivery of a child for the purposes of interim parenting orders under the Family Law Act 1975. Relevantly, it may be appropriate for a parent to be required to obtain a hotel room at which to receive and spend time with a child, to avoid the child being in public places with other people during the pandemic: Zeelan & Abney [2020] FCCA 884, [79]-[80]. It may also be appropriate for courts to impose conditions requiring parents subject to interim parenting order to notify each other, if a member of their household returns a positive COVID-19 test, and to ensure that a child is not cared for by persons who have returned a positive COVID-19 test or been exposed to someone who has: Zeelan & Abney [2020] FCCA 884 (see Order 6). Parties may also be prohibited from travelling overseas while the Commonwealth Government of Australia travel and entry restrictions in relation to COVID-19 require a period of self-isolation following international travel, and be prohibited from allowing persons who arrive from overseas to spend a period of self-isolation at their residence with the children while such travel and entry restrictions apply: Fitzroy & Oliversen [2020] FamCA 198, Orders 8 and 9.
The pandemic may also affect the timing of a child’s relocation under parenting orders (Levens & Gaisford [2020] FCCA 810, [44], [131]; Fitzroy & Oliversen [2020] FamCA 198), the timing for commencement of visitation rights (Hallett & Malcolm [2020] FCCA 835, [474]) and the timing of international travel for the purposes of a child moving between homes (see, e.g., Wilde & Wilde (No.2) [2020] FCCA 944, [77]-[80], although the issue was not determinative in that case) or being returned to another country (see, e.g., Comar & Comar [2020] FamCAFC 99, [21]-[23], [43]-[44], although the significance of pandemic-related travel restrictions for a return order was not determined in that case).
Additionally, the Federal Circuit Court has considered the unsettling impact of the pandemic on certain children in determining to suspend the operation of orders providing for them to spend time with their father: Ianello & Ianello (No.7) [2020] FCCA 840, [7].
Similarly, the practical consequence of an order providing for supervised contact between a father and his children, in the context of social distancing restrictions, may be that the children will not spend any time with their father as long those restrictions are in place: Trent & Barrington [2020] FCCA 1073, [24]; see also Aitken & Gladstone [2020] FCCA 966, [45]. That consequence may be unavoidable where an order for supervised contact is necessary to protect the relevant children: Trent & Barrington [2020] FCCA 1073, [25].
Concerns of one parent for the health of a child, arising from the need to travel interstate during the pandemic in order to deliver the child to another parent, may constitute a reasonable excuse for non-compliance with a parenting order: Kardos & Harmon [2020] FamCA 328, [57]-[121]. In those circumstances, the Family Court may vary the relevant orders to facilitate contact with the interstate parent: Kardos & Harmon [2020] FamCA 328, [122]-[126].
B. Parenting Orders
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Chief Justice's statement
However, on 26 March 2020, the Chief Justice of the Family Court made a Statement about "Parenting Orders and COVID-19", which contains general guidance about parenting orders during the COVID-19 pandemic. The guidance in that statement has been considered by the Family Court in determining disputes about parenting orders. See, for example, Biondi v Koen [2020] FamCA 201, [2].
iii. Case law
Government restrictions in response to the COVID-19 pandemic do not supply a general basis for not complying with the terms of parenting orders made under the Family Law Act 1975 (Cth): Mafton & Salmet (No.2) [2020] FCCA 903, [31]. Similarly, in the absence of evidence concerning specific risks posed to a child, the pandemic is unlikely to pose an “unacceptable risk” to a child, warranting variation of a parenting order: Mafton & Salmet (No.2) [2020] FCCA 903, [32]-[33].
At a general level, restrictions introduced in response to the pandemic may bear upon the relevance of certain aspects of parenting orders made under the Family Law Act 1975 (Cth) — for example, those relating to parents’ facilitation of their children’s participation in sport: Galanis & Galanis [2020] FCCA 564, [51]. However, in Biondi v Koen [2020] FamCA 201, the Court observed (at [16]) that the Victorian "Stay at Home Directions" expressly did not prevent a child from residing in the houses of two different parents.
The requirements of social distancing and isolation may also bear on a court’s decision as to the appropriate location for delivery of a child for the purposes of interim parenting orders under the Family Law Act 1975. Relevantly, it may be appropriate for a parent to be required to obtain a hotel room at which to receive and spend time with a child, to avoid the child being in public places with other people during the pandemic: Zeelan & Abney [2020] FCCA 884, [79]-[80]. It may also be appropriate for courts to impose conditions requiring parents subject to interim parenting order to notify each other, if a member of their household returns a positive COVID-19 test, and to ensure that a child is not cared for by persons who have returned a positive COVID-19 test or been exposed to someone who has: Zeelan & Abney [2020] FCCA 884 (see Order 6). Parties may also be prohibited from travelling overseas while the Commonwealth Government of Australia travel and entry restrictions in relation to COVID-19 require a period of self-isolation following international travel, and be prohibited from allowing persons who arrive from overseas to spend a period of self-isolation at their residence with the children while such travel and entry restrictions apply: Fitzroy & Oliversen [2020] FamCA 198, Orders 8 and 9.
The pandemic may also affect the timing of a child’s relocation under parenting orders (Levens & Gaisford [2020] FCCA 810, [44], [131]; Fitzroy & Oliversen [2020] FamCA 198), the timing for commencement of visitation rights (Hallett & Malcolm [2020] FCCA 835, [474]) and the timing of international travel for the purposes of a child moving between homes (see, e.g., Wilde & Wilde (No.2) [2020] FCCA 944, [77]-[80], although the issue was not determinative in that case) or being returned to another country (see, e.g., Comar & Comar [2020] FamCAFC 99, [21]-[23], [43]-[44], although the significance of pandemic-related travel restrictions for a return order was not determined in that case).
Additionally, the Federal Circuit Court has considered the unsettling impact of the pandemic on certain children in determining to suspend the operation of orders providing for them to spend time with their father: Ianello & Ianello (No.7) [2020] FCCA 840, [7].
Similarly, the practical consequence of an order providing for supervised contact between a father and his children, in the context of social distancing restrictions, may be that the children will not spend any time with their father as long those restrictions are in place: Trent & Barrington [2020] FCCA 1073, [24]; see also Aitken & Gladstone [2020] FCCA 966, [45]. That consequence may be unavoidable where an order for supervised contact is necessary to protect the relevant children: Trent & Barrington [2020] FCCA 1073, [25].
Concerns of one parent for the health of a child, arising from the need to travel interstate during the pandemic in order to deliver the child to another parent, may constitute a reasonable excuse for non-compliance with a parenting order: Kardos & Harmon [2020] FamCA 328, [57]-[121]. In those circumstances, the Family Court may vary the relevant orders to facilitate contact with the interstate parent: Kardos & Harmon [2020] FamCA 328, [122]-[126].
|
Image credit: Fusion Medical Animation
|
Site powered by Weebly. Managed by SiteGround