BANHAM & BANHAM
[2020] FCCA 1201
•8 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BANHAM & BANHAM | [2020] FCCA 1201 |
| Catchwords: FAMILY LAW – Parenting – application in a case – parenting arrangements pursuant to Court Orders – risk to children by travelling during COVID-19 – application dismissed. |
| Legislation: Family Law Act 1975 (Cth), s.102NA |
| Applicant: | MS BANHAM |
| Respondent: | MR BANHAM |
| File Number: | MLC 881 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 7 April 2020 |
| Date of Last Submission: | 7 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 8 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Sergi |
| Solicitors for the Applicant: | Kennedy Partners |
| Respondent in Person |
ORDERS
Orders 3.1 and 3.2 of the Orders made on 28 April 2015 be suspended during the currency of the Stage 3 “Stay at Home” restrictions or higher imposed by the Victorian Government (‘the government restrictions’), and during this period:
(a)the children X born in 2007 and Y born in 2007 (‘the children’) and the mother be at liberty to communicate with each other, whether by voice call, video call or electronic messaging, or to engage in online games and/or social media platforms:
(i) during school holiday periods, as may be arranged between themselves;
(ii) during school term time, as may be arranged between themselves each evening between the hours of 7.00 pm and 8.30pm; and
(iii) such other times as may be agreed between the parties.
(b)the father do all acts and things required to ensure the children have available to them their own devices and charging equipment in ready and working order (save for charging, which the children are responsible for themselves) to facilitate such communication and/or online games or social media platforms.
Pending lifting of the government restrictions, and save for the arrangements between the mother and the children to facilitate their communication as provided by these Orders, neither party discuss further with the children these proceedings or the dispute between the parties in relation to the children spending time with the mother.
Upon the lifting of the government restrictions, the children spend such make-up time with the mother for time missed during holidays and term time, to be arranged as soon as practicable, as may be agreed between the parties in writing.
In the event of failure to agree on any time or communication arrangements, including make-up time, the parties have liberty to apply to the Court at short notice.
In the event the father is diagnosed with COVID-19 and is hospitalised or is too unwell to care for the children, the father forthwith inform the mother and the mother be at liberty to travel to Melbourne as may be permitted by the government imposed restrictions, to care for the children during the period that the children are required to self-isolate as a result of being in direct contact with the father.
The matter be adjourned to Federal Circuit Court of Australia in Melbourne on 11 June 2020 at 9.30am for Mention.
AND THE COURT NOTES THAT:
A.The mother acknowledges that on occasions the father may not be able to have the children fed dinner prior to 7.00 pm, in which case the children’s electronic time with the mother may need to commence later than 7.00 pm, and in this event, the father will advise the mother by email accordingly.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
IT IS NOTED that publication of this judgment under the pseudonym Banham & Banham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 881 of 2015
| MS BANHAM |
Applicant
And
| MR BANHAM |
Respondent
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE – REVISED FROM TRANSCRIPT)
Introduction
This matter concerns an Application in a Case which was filed on 5 March 2018. The applicant sought an urgent hearing for Orders that the father do all things required to facilitate spend time with the mother pursuant to Order 3.2 of the Orders made on 28 April 2015 (‘the 2015 Orders’).
The 2015 Orders provide arrangements for the children, X and Y, both born in 2017 and now aged almost 13, to live with the father and spend time with the mother for one half of the school holidays period in Brisbane and on weekend each month in Melbourne.
As a result of the COVID-19 health crisis, the father raised concerns regarding the children traveling the Brisbane for the current school holidays, which resulted in the mother making this Application.
The mother relied upon an affidavit sworn 6 April 2020, by which she outlined the father’s concerns with the travel proposed. I have also had regard to unsworn material filed by the father, a copy of which has been provided to the applicant’s solicitor.
Much of the mother’s affidavit was not directly relevant to the Application, but the relevant parts of it reiterated that the father’s concerns were pertaining to health risks, and not motivated by an ulterior desire to undermine the operation of the 2015 Orders.
The Court has been provided with directions from the Deputy Health Chief Health Officer of Victoria in relation to stay-home directions, and that was found as an annexure to the mother’s affidavit. Direction 5(1) of those directions provide that:
(1) A person who is in Victoria during the stay at home period must not leave the premises where the person ordinarily resides other than for one or more of the reasons specified.
(a) clause 6 (necessary goods or services);
(b) clause 7 (care or other compassionate reasons);
(c) clause 8 (work and education);
(d) clause 9 (exercise);
(e) clause 10 (other specified reasons).
I note that directive 7(1)(a) provides that:
(1) A person may leave the premises:
(a) to meet obligations in relation to shared parenting arrangements, where the arrangements are under a court order or otherwise.
The Court was also provided with the Border restrictions Directions (No.3) issued by the Queensland Government (‘the Queensland Directions’), that by clauses 4 and 5 provides:
4. A person who arrives in Queensland from another State or Territory of Australia from 12.01 am on Friday 3 April 2020 will not be allowed to enter Queensland, unless they are an exempt person.
5. Despite the direction in paragraphs 3 and 4, an exempt person, who arrives in Queensland must self-quarantine for a period of 14 days if:
…
b. they have travelled in the last 14 days to particular areas of Australia decided by the Chief Health Officer and published on the Queensland Health website; […]]
The Queensland Directions provide an exemption to a person entering Queensland on compassionate grounds or under compulsion of law, and specifically, clause 28(c) provides that:
c. for children under 18 years who do not live in the same household as their biological parents or siblings or one of their parents or siblings, continuing existing arrangements for access to and contact between, parents and children and siblings, but not allowing access or contact with vulnerable groups or persons.
The mother proposes that the children travel to Queensland for a period of 10 days and that if there was any directives that the borders were to be further restricted, that she would arrange for the children to be dispatched back to Victoria prior to those directions taking effect. She also gives evidence that she has obtained the exemptions directly by the Queensland Government.
Whilst the directives do not refer to travel by air, the risks associated with travel by air are matters that I have to take into account in considering whether the Orders sought by the mother are in the best interests of the children.
There are considerable risks associated with transporting the children to the airport, the children passing through the airport, traveling on an aircraft, and then traveling to the venue where they would be remaining in isolation for the entire period of their travel. The risks are self-evident, having regard to the very stringent restrictions that have been applied to all citizens in Victoria and Queensland.
Whilst there are exemptions to the directives, those pertain to circumstances where there is a necessity to travel. Whilst there are Court Orders, in my view those Court Orders should be complied with in the interests of the children through the use of applications such as Zoom, Microsoft Teams, House Party, and like applications. This way the children can spend meaningful time with their mother in this particular time of a global health crisis without placing themselves at risk.
By [7] of her application, the mother sought Orders proposing that in the event there is a government direction preventing the children from spending time with her in accordance with the 2015 Orders, then:
7.1 the parties do all things necessary to facilitate such face-to-face time in such a manner as may be permitted;
7.2 otherwise, the children and the mother be at liberty to communicate with each other, whether by voice call, video call or electronic messaging, as maybe arranged between themselves, and the father to do all acts and things required to ensure the children have available to them their own devices in ready and working order to facilitate such communication.
7.3 upon the lifting of the government direction preventing the children from spending face to face time with the mother, the parties arrange in writing for the children to spend make-up time with the mother.
I will make Orders facilitation communication between the children and the mother electronically which affect the mother’s proposals regarding that mode of communication. Having regard to the communication that’s annexed to her affidavit of the mother, it strikes me that these young children, and particularly the daughter, are very involved in the dispute between the parents. I am concerned that any communication facilitated by these Orders must be child-focused and not directed at promoting any dispute between the parents.
I propose to have a conversation with the parties to see whether some Orders can be made which would facilitate the electronic communication during this period and into the future, whilst we are in this crisis.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 18 May 2020
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