Relocating Your Children Overseas and COVID-19
According to the Honourable former Chief Justice Bryant, relocation cases are by far the hardest cases the Family Court has to deal with. When a relocation case is before the Court, it often can be difficult and heart-wrenching because they do not allow for an easy answer.
As if relocation matters are not complicated enough, the COVID-19 Pandemic definitely does not alleviate any of the trauma associated in not only proving whether or not relocating your children is in their best interests but also balancing the interests and happiness of both parents.
Generally when a couple separates, they negotiate an appropriate parenting plan which covers the practical issues of caring for a child of the parties. Amongst other things, the parenting plan sets the rules for who the child will live with and how much time the child will spend with the other parent. However, when negotiations fail, the Court will step in to make what is known to be a Parenting Order.
In making the parenting order, the Court deems the best interest of the child to be of utmost importance. This is determined by two primary considerations:
1. The benefit of the child to have a meaningful relationship with both parents; and
2. The prevention of the child from any physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
When the Court determines what constitutes “a meaningful relationship”, the Court examines what is important, significant and valuable to the child, something which is determined on a case-by-case basis.
RELOCATION
If one parent is considering relocating overseas, the Court will weigh the relocation proposal against the various factors listed within Section 60B and Section 60CC of the Family Law Act including:
- Ensuring the child has the benefit of both their parents and that the parents have a meaningful involvement in their lives. The Court considers that the child has the right to know and be cared for by both their parents and to spend time and communicate with both their parents on a regular basis
- Ensuring both parents are able to fulfil their duties and meet their responsibilities, concerning the care, welfare and development of the child
- The extent of which each parent has in the past fulfilled or failed to fulfil their parental obligations to maintain the child
- The nature of the relationship of the child with each parent
- The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other brother or siter of the child
- The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Recently, the Family Court of Australia extended this list to ensure that relocation is still within the child’s best interests in light of the persisting COVID-19 Pandemic. In the case of Kingsley & Secretary, Department of Communities and Justice (No.2) [2021] FamCAFC 144, the Full Court considered whether a child should be allowed to relocate back to Canada. In assessing the mother’s application, the Court had regard to the following factors:
1. The rate of COVID-19 infections in that country;
2. The COVID-19 vaccination rates in that country;
3. The level of hospitalisations within that country; and
4. The morbidity rates as a result of COVID-19 in that country.
Further, the case of Denham & Newsham [2021] FamCAFC 141 showcases how the heightened restrictions of different countries around the world arising from the COVID-19 Pandemic may be construed against the relocating parent. In that case, the Father sought to appeal the Court’s decision to grant the Mother with a relocation order by arguing the following:
1. If the Father wanted to see his child, he would have to seek permission to leave Australia and if permission was granted, he would be required to quarantine every time he arrived in Belgium and every time he returned to Australia, at his own cost.
2. If the Mother was to bring the child to visit Australia, they will also be required to quarantine for 14 days.
3. The Australian Government recommends against travelling to Belgium.
4. For non-primary residents, non-essential travel is prohibited in Belgium.
5. The availability for air travel is currently inconsistent and the policies in dealing with the COVID-19 Pandemic continues to change within each country.
In light of the above arguments, the Full Court decided that the Mother’s proposal for the child to have face-to-face time with the Father could not be assured and was no more than a mere speculation if relocation to Belgium was allowed.