HHG Legal Group’s Family & De Facto Law team’s Stewart Kattowitz provides clarity around the regionals and intrastate travel bans and parental orders and arrangements. [First published 30 March 2020, updated on 9 April 2020]
The circumstances surrounding the severe acute respiratory syndrome coronavirus-2 (SARS-CoV-2) and its coronavirus disease (COVID-19) are evolving daily. The different State, Territory, and Federal Governments are actively co-ordinating their efforts to address this pandemic on each level of government.
The circumstances surrounding the severe acute respiratory syndrome coronavirus-2 (SARS-CoV-2) and its coronavirus disease (COVID-19) are evolving daily. The different State, Territory, and Federal Governments are actively coordinating their efforts to address this pandemic on each level of government.
Your Family Court Orders and compliance
Separated parents traversing this pandemic are exposed to various kinds of stressors in addition to navigating through the family law landscape.
The Family Law Section of the Law Council of Australia, which is the peak-body for family lawyers, outlined its top ten suggestions for separating parents. Click here to download the ‘Top Ten Guide for Separated Parents during COVID-19’.
It is understandable that separated parents are confused about complying with their parenting arrangements when governments are calling for various measures to combat COVID-19, which includes social distancing – meaning, amongst other things, staying at home unless going outside is necessary and keeping visitors to a minimum.
Separated parents are still being encouraged to comply with their Family Court Orders or agreement unless a reasonable excuse applies to your circumstances. Failing to comply with regulated arrangements may result in a breach and permit a party to bring a contravention application. We cannot foresee how the Family Court will address a party’s failure to comply with regulated arrangements in the context of COVID-19. It is likely that each case will be assessed on its own facts. The party resisting compliance must be prepared to provide evidence to support their course of action.
Regional travel prohibitions
The West Australian government made a regional travel prohibition direction (“The Regional Travel Prohibition Direction”) on 31 March 2020 prohibiting a person from entering a region from another region, unless any one or more of the exceptions apply.
The regional travel prohibition caters for separated parents. The exception states that:
A person must not enter a region from another region to the extent that:
(g) 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 another parenting arrangement…
The regions within Western Australia are vast and the Regional Travel Prohibition Direction clearly identifies those regions[1] within the context of the Planning and Development Act 2005 (WA).
A series of further region-specific[2] prohibitions directions have also been made. Some of these region-specific prohibitions echo the exception for separated parents as contained in the Regional Travel Prohibition Direction, but not all the region-specific prohibitions cater for separated parents.
[1] Paragraphs 11 and 12 of the Regional Travel Prohibition Direction made on 31 March 2020
[2] Goldfields-Esperance (Local Government District Travel Restrictions) made on 5 April 2020, Prohibition on Travel Between Local Government Districts in the Kimberley Directions made on 2 April 2020, and Remote Aboriginal Communities Direction (no 2) made on 20 March 2020.
Western Australia’s hard border closure
On 5 April 2020 the Quarantine (Closing the Border) Direction (“Hard Border Direction”). It strictly states that a person must not enter Western Australia unless the person in an exempt traveller.[1]
Unlike the Regional Travel Prohibition Direction that specifically caters for separated parents with targeted language, the Hard Border Direction is not so clear. The Hard Border Direction does not make specific mention of an exemption that is applicable to a person who is “fulfilling their obligations under a parenting plan, parenting order of a court or another parenting arrangement”.
There appears to be some limited scope for those separated parents who have Family Court Orders about their parenting matters. A person may be granted exempt traveller status if that person is required to give or effect an order of an Australian court. However, the person who is granted the exempt traveller status may still be subject to such further terms or conditions as directed on arrival. Also, a person may be granted exempt traveller status on compassionate grounds, but the conditions to satisfy compassionate grounds are not entirely clear.
Additionally, there are specific provisions contained in the Hard Border Direction dealing with unaccompanied minors, who enter Western Australia and their parents. However, these provisions are unlikely to be relied on as a gateway to facilitate or enable the continuation of any form of parenting arrangement.
[1] Paragraph 27 of the Quarantine (Closing the Border) Direction made on 5 April 2020.
To further complicate matters, it seems that before travelling to Western Australia each and every person must complete and lodge the ‘Request for Approval as an Exempt Traveller Form’ together with any supporting information and evidence well before departing for Western Australia.
It is hard to predict how children will have any continuity with the parent, whom resides in Western Australia, what those children ordinarily reside outside of this State.
What does this all mean?
To that end, sometimes strict adherence to the parenting arrangements may not feasible, but the purpose and spirit of the arrangements must still be acknowledged. Parties should be guided by the underlying principle that a child’s best interests are paramount, and these largely encompasses the care, welfare, and development of that child.
Adapting to the changing climate
A series of changes will likely be necessary now and in the near future. It is likely that revised arrangements will be necessary for the interim.
We have identified the following five areas where difficulties will arise:
- location for handovers (pick-ups and drop-offs);
- engagement with or continuing engagement with child supervision agencies;
- movement between households (incl. minimising contact with at-risk persons);
- defining the parameters for school holidays; and
- intrastate, interstate, or overseas travel.
We encourage separated parents to act reasonably and avoid giving in to their emotions. Communication between parents, their children, and others will be key.
Now is the time to work together. We are encouraging separated parents to consider sensible and practical solutions where necessary.
HHG Legal Group can assist
For over 100 years HHG Legal Group has been proudly serving Western Australian families, business and individuals. Never before has the State seen such a crippling time for many small businesses and individuals and we are committed to supporting the communities in which we operate.
If you require legal advice or representation relating to your parental orders or any other family or de facto law matter, we are offering unprecedented fees for initial consultations (video, phone or safely-spaced, face-to-face) which can be booked via the button below or by calling 1800 609 945.
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