Court decision

COVID-19 pandemic continues to impact parenting orders

By Kathleen Coggins / 10 September 2021

In Denham & Newsham [2021] FamCAFC 141, a father successfully appealed against a decision for his child to relocate from Australia to Belgium because of further evidence which he adduced regarding the impact of the COVID-19 pandemic upon international travel. 

The Full Court set aside the relocation order and remitted the matter for rehearing by a Judge other than the trial Judge.

This was a matter where the trial Judge found that it was in the bests interests of a child to be permitted to relocate from Australia to Belgium with their mother. It was not disputed that the child enjoyed a secure and loving relationship with their father. The orders made by the trial Judge provided for the child to spend time with their father between Belgium and Australia. 

The father, as part of his appeal, brought an application to adduce further evidence in relation to the COVID-19 pandemic and the restrictions now imposed upon international travel. The trial, at first instance, was heard in February 2020 when the effect of the COVID-19 pandemic was yet to be felt in Australia and borders had yet to be closed. At the time, the inability to move freely across borders was not contemplated and there were no travel related impediments to consider, particularly when compared to the extent that those restrictions exist today. 

The father sought to rely upon further evidence related to border restrictions imposed by Australia and Belgium due to the COVID-19 pandemic and, in particular, the following:

  1. the fact that the father and the child would be prohibited from leaving Australia unless given permission. Even if permission was granted on each occasion the father sought to travel to Belgium, he would be required to quarantine on return to Australia, at his cost, for 14 days;
  2. the fact that the Australian Government recommends against travel to Belgium;
  3. Belgium’s prohibition against non-essential travel for non-primary residents;
  4. the fact that, even if the father was permitted to enter Belgium, there may be a requirement for the father to quarantine on arrival there;
  5. the fluid nature of the COVID-19 pandemic and the ever-changing policies of each country;
  6. the fact that the mother and the child would be required to quarantine for 14 days on arrival into Australia (assuming they were granted permission to enter); and 
  7. the inability to rely upon the availability of regular air travel.

In seeking to rely upon the further evidence produced by the father, he was required to demonstrate:

  1. that the evidence is likely to produce a different result; and
  2. that it is in the best interests of the child to have a new hearing.

The Full Court accepted that the further evidence relied upon by the father should be admitted. Their Honours found that the proposal of the mother for the child’s face to face time with the father, if the child was permitted to relocate to Belgium “could not be assured” and was “no more than mere speculation”. 

The Full Court found it “could not be satisfied as to when, how and with what frequency the child and the father might see each other”. The Full Court could therefore not be satisfied that the child and the father would maintain a meaningful relationship if the child relocated to Belgium and the appeal was allowed.

Separately from this aspect of the appeal, the Full Court also found that the trial Judge failed to sufficiently address the evidence of the family report writer (who recommended against the child’s relocation), as well as the father’s ability to afford the costs of spending time with the child.

If you have any queries in relation to the impact of the pandemic upon your family circumstances, or any other family law issue, please do not hesitate to contact a member of our Family and Relationship Law team. 

Kathleen Coggins
Special Counsel
Kathleen is a Special Counsel practising exclusively in Family and Relationship law.

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