COVID-19 pandemic continues to impact parenting orders
In Denham & Newsham  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:
In seeking to rely upon the further evidence produced by the father, he was required to demonstrate:
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.