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Is COVID 19 an “exceptional circumstance” in family law?

By June 14, 2021February 23rd, 2024No Comments

Is COVID 19 an “exceptional circumstance” in family law? As the pandemic continues into its second year, we’re seeing more cases in the family courts raising the topic of COVID 19 in arguments relating to parenting matters. Two recent cases in the family courts demonstrate how the courts are handling such matters. Let’s take a look.

Is COVID 19 an “exceptional circumstance” in family law? Or has it in fact become our new normal? It would appear that the family courts are taking the latter view.

Relocation case: Is COVID 19 an “exceptional circumstance” in family law?

In one recent parenting case (given the pseudonym Ready & Ready), just prior to the pandemic beginning, a mother had obtained court orders allowing her to relocate from Australia to Ireland with her children. However, due to the pandemic’s onset, the mother and children have so far been unable to fulfil their relocation plan.

The father returned to court and asked for a variation of the orders based on the impact of COVID 19. However, the court found the original decision to allow the mother to relocate should stand, and that there had been no exceptional change in circumstances to justify varying the orders. The appeal judges said the primary judge was correct in finding that it was in the children’s best interests “to be primarily parented by a parent whose significant emotional needs for familial support are met, as was found to be the case if the mother was permitted to relocate the children to live with her in Ireland”.

At trial, the father had unsuccessfully sought a “complete veto over the children’s relocation”. Now, he was seeking that the original orders should be suspended until the Australian government changes the travel advice for Ireland. Instead, he wanted the original order to be replaced with a new one ordering the mother to obtain the father’s express written consent before she could relocate. However, simply because the pandemic meant that the mother was unable to relocate to Ireland at present, this did not change the “fundamental determination” permitting her to relocate on giving the father 14 days’ notice.

It was found the father was likely attempting to revisit and relitigate the same issues, and his appeal was dismissed.

We recently wrote about the subject of obtaining an injunction to prevent a child or an ex-partner from overseas travel, and that the courts could order their names to go on the Family Law Watchlist. Here, the opposite occurred: orders were made issuing an injunction to restrain the father from taking any action to place the children’s names on the Watchlist, both ours and that of Ireland.

The inherent difficulty in varying orders

We also discussed the challenges of varying court orders in our blog here. Following an established authority, the courts will only vary orders where they are persuaded that there is a “sufficient change in circumstances”. Reversing orders is not done lightly on the basis of change itself, because change is accepted to be an ever-present factor in life and matters can’t be relitigated every time there is a change in someone’s life. A change must be exceptional or involve new factors that weren’t present at the trial. Here, the pandemic certainly occurred after the original orders had been made, yet itself wasn’t a sufficient reason to reverse the order that allowed the mother to relocate. The fact that the mother is now going to be delayed in her plan to relocate does not justify overturning the original orders.

Hague Convention case: Is COVID 19 an “exceptional circumstance” in family law?

Is COVID 19 an “exceptional circumstance” in family law? A second matter (pseudonymised as Department of Communities & Justice & Kingsley (No. 2)) also raised the spectre of COVID 19 preventing orders from being carried out.

In this Hague Convention case, orders had been made in November 2020 to return a child from Australia to Canada. The mother appealed this decision. She argued both that exceptional circumstances existed, specifically the COVID 19 pandemic, and that circumstances had also arisen that made the orders “impracticable”. These circumstances were that the mother claimed she could not afford to pay the cost of the travel and quarantine involved in returning the child to Canada. However, this argument failed as the court was presented with no evidence that the mother’s financial position had changed since the orders were made. Further, she had made enquiries only as to business class flights, which did not make any sense if finances were a factor.

Her argument that the pandemic constitutes an “exceptional circumstance” was also unsuccessful. The appeal court said that the pandemic had already been in full swing by November 2020. It noted that now, “the existence of the pandemic and the ramifications which flow from it is ‘regularly, or routinely, or normally encountered’”.

The court highlighted that in 2021 the pandemic alone is not considered an “exceptional circumstance”. To argue that the pandemic has impacted a parenting matter, the parent must demonstrate there is some circumstance arising out of the pandemic, which is exceptional by direct reference to the relevant child and the relevant order. The court further clarified that:

“Such circumstances might, without limiting the categories of relevant circumstances, include a particular medical or physical vulnerability of the child; evidence that the risk of infection is substantially greater for the subject child in the country of return or evidence that the medical care available for the child in the country of return is not of an acceptable standard.”

The mother was unable to prove that such circumstances existed and the child must now be returned to Canada.

COVID 19 and contravention matters

Last year, COVID 19 parenting cases began to be heard in the family courts, often in relation to contravention of parenting orders, for example where a parent has withheld a child due to concerns over risk of travel. As we noted at the time, compliance with parenting orders during the pandemic can certainly be difficult, but if your co-parent breaches orders, rather than head straight to court to file a contravention application, consider whether it may be wiser to come to an agreement with them to temporarily vary the parenting orders. Apart from reducing hostility and saving money, the simple fact is: your co-parent may well succeed with a “reasonable excuse for a contravention” argument based on concerns over your child’s health and safety.

Do you need assistance with a parenting or other family law matter? 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.

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