The difficulties managing the new COVID outbreaks in recent months have resulted in new headaches for separated parents. Lockdown and stay-at-home orders can be especially confusing for co-parents as they grapple with following court-ordered parenting arrangements as well as following public health advice. What happens when children’s interstate travel during COVID has become an issue?
(Children’s interstate travel during COVID…continued)
The family courts encourage parents (when it is safe to do so) to communicate with each other about their abilities to comply with current orders and to negotiate short term variations. In some intractable cases though, co-parents end up heading to court to vary orders, or to seek injunctive relief. The Government’s family court “COVID List” was put in place last year, to prioritise hearing urgent parenting cases within 72 hours, especially where there is family violence or risk to children.
In a recent case, just prior to the recent school holiday period, a Victorian mother successfully obtained an urgent injunction preventing her co-parent from taking their child out of the state and into Queensland.
The matter, pseudonymised as Messina & Obelink, involves high-parental conflict relating to the shared parenting of a 6 year old child. In fact, this particular court hearing was the 27th in the litigation history of the COVID List. In the judgment, the court notes the parents “self-identified as parties to a highly conflictual relationship of toxic intensity”.
While parenting orders were already in place, the mother became concerned that the father intended to take the boy on a holiday outside of Victoria during the school break. Given the pandemic, the mother became concerned that her son would contract COVID if exposed to travel into an actively infectious zone. She sought an urgent parenting injunction to restrain the father from taking the boy out of the state over the holidays.
The father opposed any such injunction, saying it was unnecessarily restrictive but the court disagreed.
Why was an injunction granted?
The family courts’ injunctive power revolves around the best interests of the child—and in this case, the injunction was decided to be in the boy’s best interests and was therefore granted.
“The basis for the mother’s concerns about going to Queensland are consistent with the concerns which are all over our print media, aired on television and on the radio. Taking a child interstate exposes a child to a risk of infection in transit and at the destination.”
The child being allowed to travel would also put the child, as well as the mother, in a position of potentially having to quarantine with the child on the child’s return, or even undergo a COVID test.
The court noted that if the child were allowed to travel in these times, the mother would likely become anxious and this could affect her parenting ability: “It is positive for [the child’s] welfare that the mother not be made unduly anxious.”
This particular injunction was for the child’s personal protection from risk of COVID infection. However, the court noted the injunction was also appropriate “to protect [the child’s] usual routine with the mother and to avoid a situation where the mother is required to home quarantine [the child] herself and possibly her parents on [the child’s] return from spending time with the father in an infected zone”. It was noted that quarantine for the child could also affect their ability to return to school on time next term.
The father attempted to make a last minute application that the mother be equally restrained by injunction from taking the boy out of the state. But the court said it wouldn’t make a “tit for tat injunction”. Injunctions have to address a “real and present need” and in the mother’s case, there was no need.
Critical: communication between parents
Sharing parenting with your ex? One of the things this matter really does highlight is the need for parents to be reasonable and responsible about the need to notify their co-parent of any travel plans. It is not acceptable to simply leave it to the child to reveal what their holiday plans are.
“The father agreed that [the child] knew that he would be going to Queensland and that [the child] would have felt nervous about disclosing those plans to the mother. It is an invidious and entirely inappropriate position in which to put the child.”
The new normal…
We recently looked at a case that appeared to indicate that the family courts may be viewing the pandemic as the new normal, rather than as an “exceptional circumstance”. However, it’s still enough of an abnormal situation to be making co-parenting much more difficult than usual in some cases, and it’s likely we’ll continue to see similar cases proceed through the courts.
Taking COVID into account in orders
In making parenting orders now, courts try to put in place “self executing regimes” that give clarity to the orders’ operation if there are potential future lockdowns or other restrictions that could impact on parenting arrangements. This avoids the need for parents to return to court to vary orders if COVID becomes a personal issue.
You can read the above-mentioned judgment in full here.
Do you need help with a parenting or other family law matter, or do you need advice on applying for the COVID List? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
