The impact of COVID-19 extends into the family law system. Separated parents are asking how the travel restrictions imposed in all states and territories impact their handover arrangements set out in Parenting Orders. This is especially relevant for separate parents who do not live in proximity.
In particular, in this article, we explain what intra-state travel restrictions are currently in place in Western Australia and New South Wales (where our clients reside) and how these apply to parenting arrangements.
As we are facing an unprecedented and rapidly changing environment, the information contained in this article will be updated if the information issued by State and/or Federal Governments changes.
Western Australia travel restrictions and the effect on parenting arrangements
On 31 March 2020, Christopher John Dawson, State Emergency Coordinator and Commissioner of Police gave directions, pursuant to Section 67 of the Emergency Management Act 2005 (WA), that a person must not enter a region from another region, unless a specified exception applied.
The directions were given to limit the spread of COVID-19 and came into effect at 11.59 pm on 31 March 2020.
The regions that are referred to are those set out in Schedule 4 of the Planning and Development Act 2005 (WA) and included:
- the Gascoyne region;
- the Goldfields-Esperance region;
- the Great Southern region;
- the Kimberley region;
- the Mid West region;
- the Perth and Peel region;
- the Pilbra region;
- the South west region; and
- the Wheatbelt region.
This, naturally, caused much concern for separated parents living in different regions to their minor children, when the direction came into effect.
An exemption applies in Western Australia
However, the directions provide an exception to cross-region travel if it is necessary for the person to do so for the purpose of fulfilling their obligations under a Parenting Plan, Parenting Order of a court or other parenting arrangement.
Of course, it would be wise for parents travelling across regions for this purpose, to carry the relevant document to prove the purpose for travel (if they were required to do so).
New South Wales travel restrictions and the effect on parenting arrangements
In New South Wales, the restrictions imposed in response to COVID-19 are more advanced than Western Australia (presently).
On 30 March 2020, Bradley Hazzard, the Minister for Health and Medical Research made the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (“the Order”), pursuant to Section 7 of the Public Health Act 2010 (NSW).
The Order directs that a person must not, without reasonable excuse, leave the person’s place of residence.
Examples of a reasonable excuse include:
- obtaining food or other goods and services;
- travelling for the purpose of work or education if the person cannot do it at home;
- exercise; or
- medical or caring reasons.
Parenting Orders and Parenting Plans considered a ‘reasonable excuse’
What are considered ‘reasonable excuses’ are set out in detail at Schedule 1 of the Order and include:
- for children who do not live in the same household as their parents or siblings or one of their parents or siblings;
- continuing existing arrangements for access to, and contact between, parents and children or siblings.
Therefore, leaving a person’s principal place of residence for the purpose of fulfilling their obligations under a Parenting Plan, Parenting Order of a court or other parenting arrangement, is regarded as a reasonable excuse and is permitted.
Parents are expected to continue to comply with Parenting Orders
The Family Court of Australia and Federal Circuit Court of Australia released a joint statement on 26 March 2020, indicating that parents and carers are expected to comply with Court Orders in relation to parenting arrangements.
This includes facilitating time being spent by the children with each parent or carer pursuant to Parenting Orders, notwithstanding the COVID-19 pandemic.
The courts also noted that there may be situations that make strict compliance with current Court Orders very difficult, if not impossible.
In addition, there may be genuine safety issues that have arisen whereby one parent, or someone in close contact with that parent, has been exposed to COVID-19 and this may restrict the safe movement of a child from one house to another.
In these circumstances, the courts encourage parties to communicate with each other about their ability to comply with current orders and confer as to what alternative arrangements can be put in place as an interim measure during the pandemic.
The court also stated that it is imperative that, even if the Orders cannot be strictly adhered to and are varied by the parties, the parties ensure that the purpose or sprit of the Orders are respected. The focus should always remain to act in the best interest of the children.
If your parenting arrangements are being impacted by COVID-19, it is important that you obtain specialist advice from one of our family lawyers to help you navigate these uncertain times.
WA: 08 6245 0855
NSW: 02 8320 0085
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About the Author:
Today’s article is written by family lawyer, Chelsea Bech. You can learn more about Chelsea’s expertise and experience here or get in touch with him directly about your family law matters.
The information contained in this article is of general nature and should not be construed as legal advice.