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COVID-19 and Family Law

As most of us are acutely aware, the New South Wales government has introduced an order, namely the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 [NSW], under its powers under the Public Health Act 2010, to try to prevent the further spread of the potentially fatal COVID-19 virus. Section 5 of the order directs that:

1.    A person must not, without a reasonable excuse, leave their place of residence; and
2.    Participate in gatherings in contravention of part 3 of the order.

People can stay in their homes or spend time outside within the confines of their property boundary, but cannot otherwise leave home without a reasonable excuse.

A “reasonable excuse” to leave your home is defined by Schedule One of the order to include:

1.    Obtaining food and other goods and services for your household, or other vulnerable people;
2.    Travelling for work if you are unable to work from home;
3.    Travelling to attend childcare;
4.    Travelling to attend school, if you are unable to learn from home;
5.    Exercising;
6.    Obtaining medical care or supplies, or fulfilling the care’s responsibility;
7.    Attending a wedding or funeral, subject to the strict limitations of five people at a wedding and 10 people at a funeral;
8.    Moving house;
9.    Providing care to a vulnerable person or an in an emergency situation;
10.    Donating blood;
11.    Undertaking any legal obligation;
12.    Accessing government services including domestic violence assistance, employment services, social services or mental health services;
13.    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;
14.    For a priest or minister to provide pastoral care;
15.    Avoiding injury or risk of harm;
16.    For emergencies or compassionate reasons.

The order specifically notes that taking a holiday to a regional area is not a reasonable excuse.

A gathering for the purposes of the order, means a meeting between people in public or indoors of more than two people, other than the members of an immediate household that live in the one house.

It is an offence if an individual fails to comply with the restrictions, with a maximum penalty of imprisonment for 6 months or a fine of up to $11,000 (or both) plus a further $5,500 fine each day the offence continues. 

The exceptions to the “two people” rule are set out in Schedule Two of the order, which permits more than two people to be in the one place together, at locations which include airports, jails, courthouses, aged care facilities, Parliament, schools and universities.

The restrictions on movement under the public health order have caused significant issues for everyone in the community, but have been a source of significant concern for separated parents trying to comply with orders under the Family Law Act, when they have been told not to leave their homes without a reasonable excuse. 

Subsections 11 and 13 of Schedule One give most parents the ability to comply with their Family Law orders.  Orders made under the Family Law Act for children to spend time with or live with their parents at varying times are legal obligations enforceable under the Family Law Act.  

Subsection 11 of Schedule One allows for travel to comply with legal obligations. Orders under the Family Law Act in relation to children must be complied with, unless the person with the obligation has a reasonable excuse not to do so.  Subsection 13 of Schedule One allows for travel for the purposes of ensuring that parents and siblings are able to maintain their existing arrangements for access and contact. 

People who are parties to orders made in relation to children under the Family Law Act are required to comply with those orders unless they have a “reasonable excuse”.  This is a different reasonable excuse to that covered by Schedule One of the Public Health Order.

Under section 70NAE of the Family Law Act, a “reasonable excuse” not to comply with an order in relation to a child is available where the person not complying believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person, including themselves or the child. This is an ordinarily fairly difficult standard to meet. 

In the current pandemic crisis, there are likely to be any number of different circumstances that are on the borderline of what may be considered a “reasonable excuse” not to comply with an order under the Family Law Act, and behaviour that is a contravention of an order.

At the moment there may be legitimate circumstances where a parent can say that they did not send a child to spend time with or live with the other parent, in contravention of an order made under the Family Law Act, where the parent, or either of the parents, or the child were seriously unwell, either with coronavirus or some other illness, and should be kept at home.  Depending on the rest of the parties’ circumstances, this may be ‘a reasonable excuse’ under the Family Law Act, but only for as long as is necessary to protect the health or safety of the child or parent. 

A refusal to send a child to spend time with their other parent out of fear that the child may be exposed to COVID-19, is unlikely to be a reasonable excuse without very compelling evidence that the other parent posts some sort of risk of harm to the child.

The Family Courts have issued a statement confirming that in these troubling times parents and carers must continue to act in the best interests of their children, including ensuring their children’s safety and wellbeing, and complying with Court orders in relation to parenting arrangements. This includes ensuring that parents get to spend time with their children in accordance with court orders.

The court has also acknowledged that the pandemic may have the result of making orders impractical or impossible to comply with, but encourages parents to work together to try to negotiate a new arrangement for the period of the pandemic crisis by discussion between themselves, the assistance of family dispute resolution services, and their lawyers.

If you require assistance to negotiate a new short term arrangement for your children during the pandemic crisis please contact our office to make a video or telephone conference. Our office remains open for business.

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