MADAR & MCCORMACK

[2020] FCCA 1152

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADAR & MCCORMACK [2020] FCCA 1152

Catchwords:
FAMILY LAW – Parenting orders – interim orders – COVID-19 – direction issued under State Emergency Management Plan – whether existing orders made for father’s time with the child inconsistent with State Direction – no further orders made.

Legislation:

Emergency Management Act 2004 (SA), ss.2(1)(a)(i), 3(1)(b)-(r), 4(1)-(6), 6, 14,15, 17, 23, 25(1), 25(2)(fb) and 28

Emergency Management Regulations 2009 (SA)

Family Law Act 1975 (Cth)

Applicant: MR MADAR

Respondent: MS MCCORMACK

File Number: ADC 1045 of 2020

Judgment of: Judge Heffernan

Hearing date: 30 April 2020

Date of Last Submission: 30 April 2020

Delivered at: Adelaide

Delivered on: 13 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Anderson

Solicitors for the Applicant: Howe Jenkin

Counsel for the Respondent: Mr Culshaw

Solicitors for the Respondent: Culshaw Miller Lawyers

ORDERS

NOTING that this matter is listed for interim argument on 19 June 2020

1. There be no order amending order 9(d) of the orders of 20 April 2020.

2. There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Madar & McCormack is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1045 of 2020

MR MADAR

Applicant

And

MS MCCORMACK

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 20 April 2020, I made orders by consent in this matter which included inter alia that the child, X born in 2019, spend time with the father on certain occasions subject to the following proviso:

   “(d)With such time to be supervised by the maternal grandfather in the home of the maternal grandparents, and such time to be in accordance with s 3(1)(b) of the Emergency Management (Gatherings No 2)(COVID 19) Direction 2020 SA (‘the Direction’).”

2. The orders were drafted by the solicitor for the mother and it was counsel, Mr Culshaw, who drew the Court’s attention to the Direction.  I am grateful to him for doing so.  No submissions were heard on the operation or meaning of the Direction as the orders were made by consent.  After the hearing and after the father had spent time with the child pursuant to the orders, it became apparent that the parties were in dispute as to the meaning of the order in light of the terms of the Direction.  In particular the parties could not agree whether the terms of the order and/or the Direction meant that the father would be required to maintain a distance of 1.5 metres from the child during the period of his time subject to my orders.  The child is about 16 months old.

3. For that reason, I called the matter on for further submissions.  The Direction had been made by the ‘State Co-ordinator’ only a couple of days prior to the orders being made.  I am not aware of any other matter in this Registry in which reference has been made to the Direction in orders of the Court or any decision emanating from this Registry which considers the interaction of the Family Law Act 1975 (Cth) (‘the Act’), the jurisdiction of this Court, and Directions made under the relevant State law namely, the Emergency Management Act 2004 SA (‘the EM Act’).

4. I note at the outset that it is not the place of the Court to provide parties or the community generally with advisory opinions.  The matter was called on in the event that some alteration might have been required for the purpose of the proper operation of the fathers’ time with the child.  I have concluded that to properly consider that question it is necessary for me to consider the scheme provided for under State legislation and the operation of the Direction on the parties in light of the order I have made.

The State Framework

1. At the present time, the Commonwealth and the States are responding to the challenges presented by the COVID-19 pandemic.  In South Australia, the EM Act establishes an emergency management framework for the State.  The framework is designed inter alia to promote prompt and effective decision-making associated with emergencies.[1] The EM Act establishes a State Emergency Management Committee (‘SEMC’)[2] which includes as one of its appointed members, a State Co-ordinator.  One of the functions of the SEMC is to oversee the implementation of the State Emergency Management Plan (‘SEMP’).  Under the EM Act the person holding or acting position of Commissioner of Police is the State Co-ordinator.[3]  The functions of the State Co-ordinator are to manage and co-ordinate response and recovery operations in accordance with the EM Act and the SEMP and to carry out any other functions assigned to the State Co-ordinator under the EM Act.[4]  The State Co-ordinator is empowered under the EM Act to appoint such persons to be authorised officers for the purpose of the EM Act as they see fit.[5]

   [1] Section 2(1)(a)(i), EM Act.

   [2] Section 6, EM Act.

   [3] Section 14, EM Act.

   [4]     Section 15, EM Act.

   [5]     Section 17, EM Act.

2. The State Co-ordinator has the power to declare that a major emergency has occurred, is occurring, or is about to occur.[6]  There is no dispute that on 22 March 2020 the State Co-ordinator declared that a Major Emergency is occurring in South Australia in respect to the COVID-19 outbreak.  On the declaration of a Major Emergency the State Co-ordinator must take any necessary action to implement the SEMP and implement such response as he or she thinks appropriate.[7]  Relevantly for present purposes, the State Co-ordinator is empowered, amongst other things, to direct a person to remain isolated or segregated from other persons or to take other measures to prevent the transmission of a disease or condition to other persons.[8]  The State Co-ordinator is also empowered to exercise any ‘prescribed power’.

   [6]     Section 23, EM Act.

   [7]     Section 25(1), EM Act.

   [8]     Section 25(2)(fb), EM Act.

3. Under s 28(1) of the EM Act it is an offence to fail to comply with a requirement or direction as follows:

   “A person must not, without reasonable excuse, refuse or fail to comply with a requirement or direction of the State Co-ordinator or of an authorised officer given in accordance with this Act during a declared identified major incident, major emergency or disaster.”

4. In the case of a natural person who commits the offence, the maximum penalty is a fine of $20,000.

5. The Emergency Management Regulations 2009 SA (‘the EM Regulations’) have been published under the EM Act.  They provide that the power to direct a person established under s 25(2)(fb) is a prescribed power.  They also provide that an Authorised Officer is authorised to give expiation notices for alleged offences under s 28 of the EM Act fixed in the amount of $1,000 for a natural person.

6. The Direction referred to in the consent orders is the only direction relevant to these proceedings.  It has not been suggested that the Direction has not been made within power.  I have not been advised of any other direction under the EM Act currently in force.  Relevantly, the Direction provides as follows:

   “3–Definitions

   (1)    In this direction–

   density requirement is the requirement that the total number of persons present in a gathering must not exceed one person per 4 square metres;

   prohibited gathering means–

   (a)a gathering of more than 10 persons; or

   (b)a gathering of 10 or less persons that does not comply with the density requirement,

   but does not include a gathering–

   (c)at an airport that is necessary for the normal business of the airport; or

   (d)for the purposes of or related to public transportation, including in vehicles or at public transportation facilities such as stations, platforms and stops; or

   (e)at a medical or health service facility that is necessary for the normal business of the facilities; or

   (f)for the purposes of emergency services; or

   (g)at a disability, aged care or residential care facility (including a supported residential facility or a child protection facility) that is necessary for the normal business of the facility; or

   (h)at a prison, correctional facility, training centre or other place of custody; or

   (i)at a court or tribunal; or

   (j)at Parliament for the purpose of its normal operations; or

   (k)at a food market, supermarket, grocery store, retail store or shopping centre that is necessary for the normal business of those premises; or

   (l)at an office building, factory, laboratory or testing facility, repair or maintenance premises (such as a vehicle mechanic workshop), mining or construction site or waste disposal or processing facility that is necessary for the normal operation of those premises; or

   (m)on land or a vessel used in the production or treatment of primary produce (within the meaning of the Primary Produce (Food Safety Schemes) Act 2004) that is necessary for normal operations on the land or vessel; or

   (n)at a school, university, educational institution or childcare facility that is necessary for the normal business of the facility; or

   (o)at a hotel, motel or other accommodation facility that is necessary for the normal operation of accommodation services; or

   (p)at a place where persons are present for the purposes of transiting through the place; or

   Example--

   A Shopping Mall

   (q)specified as exempt from this direction by the State Co-ordinator (or authorised officer) in writing; or

   (r)delivered by an operator who has a social distancing policy approved in writing by the State Co-ordinator (or authorised officer);

   place includes any land, building, vehicle or other place including (to avoid doubt)¬

   (a)indoor or outdoor places;

   (b)residential or non-residential places;

   (c)public places;

   (d)movable places;

   social distancing principles- see subclause (3).

   (2)For the purposes of paragraph (n) of the definition of prohibited gathering in subclause (1), a school event that involves members of the community in addition to staff and students is deemed not necessary for the normal business of the facility.

   Note--

   The intended effect is that a school event that involves members of the community in addition to staff and students will be a prohibited gathering if it involves a gathering of more than 10 persons, or a gathering of 10 or less persons that does not comply with the density requirement. School events include assemblies, sporting events or parent-teacher events.

   (3)The social distancing principles require a person to attempt to maintain a space of at least 1.5 metres between themself and each other person present in the same place.

   4–Direction

   (1)A person who owns, controls or operates a place in the State of South Australia must not allow a prohibited gathering to occur at the place.

   (2)A person must not organise a prohibited gathering at a place in the State of South Australia.

   (3)A person must not attend a prohibited gathering at a place in the State of South Australia.

   (4)A person who is present at a gathering (whether or not a prohibited gathering) must use their best endeavours to comply with the social distancing principles (having regard to the all the circumstances).

   (5)Despite paragraph (i) of the definition of prohibited gathering, a person who is present in a court or tribunal building must comply with a reasonable direction of a sheriff's officer given for the purposes of implementing the density requirement and the social distancing principles.

   (6)Nothing in this clause is to be taken to prevent more than 10 persons who ordinarily reside in premises from residing together in those premises.”

Submissions

1. Counsel for the mother provided written submissions which it is expedient to set out in part verbatim:

   “1.The Emergency Management (Gatherings No 2) (COVID-19) Direction 2020 [‘EMD’] was given by the Commissioner of Police pursuant to s 25 of the Emergency Management Act [‘the Act’] at 10.10am on 16 April2020.

   2.Of direct relevance to the clarification being sought by the Applicant father:-

   2.1The spend time with Orders made pursuant to paragraph 9 of the Orders made on 20 April 2020 (as amended on 24 April 2020) would be defined as a“gathering of 10 or less persons” for the purposes of the EMD;

   2.2Such a gathering becomes a prohibited gathering if it does not comply with the density requirement and the social distancing principles [Section 3 (1) (b) and (3) of the EMD];

   2.3The density requirement as defined by Section 3 (1) of the EMD is the requirement that the total number of persons must not exceed one person per 4 square metres and the social distancing principles [Section 3 (3)]require a person to attempt to maintain a space of at least 1.5 metres between them self and each other person present in the same place;

   2.4The maternal father, as the supervisor, is mandated by the EMD as a matter of law to ensure that he does not allow a prohibited gathering to occur at a place which he “owns, controls or operates”;

   2.5The Father whose presence is covered by Section 4 (4) of the EMD is mandated by the EMD as a matter of law to use his best endeavours to comply with social distancing principles;

   2.6It is not open to the Court to make an Order that has the effect of breaching a state law (i.e. the EMD cannot be ignored when couching the terms of orders);

   2.7It is common ground that the father is not “ordinarily resident” in the maternal grandfather’s premises where the supervised contact is taking place and therefore does not come within Section 4 (6) exception;

   2.8There are no exceptions in relation to Family Court ordered time in:3

   2.8.1The EMD;

   2.8.2Any other current EMD;

   2.8.3The Act;

   2.8.4The Regulations to the Act.

   See by way of example the extensive list on non-application of the EMD in sections 3 (1) (c) –(r).”

2. The written submission also drew the Court’s attention to the terms of a similar direction made by the State authority in Queensland. That direction appears to contain a clause that would provide an exemption which would cover the operation of orders made under the Act. The point of this was to emphasise that the South Australian direction does not so provide. Mr Culshaw submitted that each case will turn on its’ facts. His client does not accept, in the absence of any previous arrangements for the father to spend time with the child, that it could reasonably be contended that this was a case of a child split between two households. The mother’s position is that it would be an offence for the maternal grandfather not to comply with the Direction if he failed to ensure that the father maintain 1.5 metres distance from the child and each other person during his visits. The visit would be a prohibited gathering as defined in the Direction.

3. Mr Anderson for the father submitted that the order requires compliance with cl 3(1)(b) of the Direction which makes no reference to the social distancing principles referred to in the Direction.  It was submitted that the Direction could not be construed as to require the father to maintain a distance of 1.5m from the child during his Court ordered time.  He submitted that as the direction in cl 4 of the direction simply required the parties to use their best endeavours to comply with the social distancing principles (having regard to all of the circumstances), there was a discretion as to whether, in circumstances such as these, it was necessary even to use ones best endeavours to do so.  Alternatively, in circumstances such as these, it amounted to a direction to attempt to comply with the social distancing principles which would in practical terms be impossible given the age of the child and the relationship between the father and the child.  This meant that there was nothing in the order that prevented the father from holding and attending to the needs of the child during his Court ordered time.  Further, in aid of the submission that no amendment of the order or other order was required to enable the father to have some form of contact with the child during the period of the adjournment, he submitted that the Direction itself would not preclude the father in that way either.

4. Mr Anderson tendered a print out of an information page from a South Australian government website, apparently SA Health, which explains the Direction.  The document asserts that exemptions are in place for people of the same household and that family units were the family is split across two houses can ‘meet’.  In discussing the exemptions it notes that they will include “Gatherings specified as exempt by the State Coordinator (or authorised officer) in writing”. I have not been provided with, and am not aware of, any specific written ‘exemption’ provided by the State Co-ordinator in relation to time spending orders made under the Act. As I said earlier, as far as anyone is aware the Direction is the only direction presently in force. Further, irrespective of what is said in the SA Health document, the obligations of the parties will be determined by a consideration of the Direction and the EM Act, not an extrinsic source.

Consideration

1. Neither party seeks a change to the order I have made. That being the case, one approach would be to make no order, publish no reasons, and let the parties resolve between themselves how to comply with it, keeping in mind that it was made by consent. However, given the uncertainty on the part of each party as to the operation of the order and the fact that under the Family Law Act I must make orders that have the best interests of the child as the paramount consideration, I have concluded that I must have regard to the operation of the Direction and the EM Act in order to satisfy myself that no change is required. To the extent that the order adopts the language of the Direction, which is very recent, it seems that without some clarification there may be a latent ambiguity or uncertainty in the terms of the operation of the order. Also, as a community, we are navigating an unprecedented restriction on social interaction and movement which is no doubt taking a toll on the ordinary course of family life. To the extent that State provisions have an impact on parties engaged in proceedings in this Court, it is appropriate to consider what that impact may entail. This in turn may influence future orders of the Court. Of course, the situation is fluid and the Direction may not be in force or may be significantly different within weeks.

2. Firstly, the order adopts part of the definition of ‘prohibited gathering’ and not the directions in cl 4 (1) – (6).  On a literal reading of the effect of the order, it requires the parties to ensure that during the fathers’ time with the child, which for the purposes of the order, would involve a gathering of ten or less people, the total number of persons present does not exceed one person per four square metres.  In practical terms that means that the parties have agreed that the number of persons who can be present during the father’s time will necessarily be determined by the size of the room or venue in which the time takes place.  It does not impose any requirement to observe the social distancing principles as defined in the Direction.  In other words, on the basis of the order alone, the father would not be precluded from physical contact with the child subject to the ‘density requirement’ being observed.  The order does not pick up the definition of ‘social distancing principles’ in cl 3(3).

3. What is the effect on the order by virtue of the operation of the Direction as a whole?  Is it possible for the father to spend time with the child under the order without he and the supervisor running the risk of committing an offence under s 28 of the EM Act?  That question is also relevant to whether or not the mother runs the risk of a contravention of the orders and subject to prosecution for that reason in this Court if she prevents the father from having time pursuant to them.  

1. On its’ face, and contrary to the SA Health print out tendered by the father, the Direction does not expressly create any exemption in complying with the directions at cls 4(1) – (6) for parties in the same family (whether living together or split) or persons in the same household. Direction cl 4(6) does not provide such an exemption. It simply says that if 10 or more people usually reside in the same premises they may continue to do so. The term ‘reside’ is not defined in the Direction. Persons usually living in a household of 10 or more would still, on a literal reading of that part of the Direction, be required to use their best endeavours to comply with the social distancing principles because of the broad wording of cl 4(4). An exemption is not created for family units or the operation of orders under the Act in the series of exemptions created in the definitions section at cls 3(1)(c) - (r) of the Direction. The term ‘gathering’ is not defined except as part of the term ‘prohibited gathering’. Can people, whether part of a family or otherwise, who normally reside in the same place, be regarded in any meaningful sense as ‘gathering’ in any way? No one would describe themselves as being on their way to attend a gathering when driving from work to the family home. In my view, this question is answered by the terms of the Directions themselves. They refer to ‘allowing’, ‘organising’ and ‘attending’ a prohibited gathering. This suggests something other than the usual exigencies of family life.

2. Further, the terms of cl 4(4) are qualified by the words ‘best endeavours’ and ‘having regard to all of the circumstances’.  Whilst I do not accept the submission of Mr Anderson that this creates what could strictly be described as a discretion, it does mean that it is recognised in the Direction that the ability to comply with the social distancing principles will depend on the prevailing circumstances.  One such prevailing circumstance might be living in the same house as someone.  However, the omission of normal physical interaction between members of the same family living in the same or a split household from the exemptions created in the definition clauses of the Direction (or any reference to them at all), suggests that it was not contemplated by the State Co-ordinator that the Direction should apply to them.  It can hardly be the case that normal family living arrangements were not considered at all at the time the Direction was made.  Another view is that if living arrangements other than those referred to in cl 4(6) were intended to be caught by cl 4(4), then in light of the qualified wording of cl 4(4) it is reasonable to infer that the State Co-ordinator intended that a reasonable view of ‘all the circumstances’ would necessarily reduce or modify the requirement for using ones best endeavours to observe the social distancing principles.  In my view, the first interpretation is the correct one.  It was not contemplated that the Direction would apply to families living in the same household or split households.  It is also questionable whether the interaction in a residence between persons living in the same household or families living between split households could be described as a gathering, prohibited or otherwise, for the purpose of the Direction.  The better view is that it could not be.

3. In light of the above, in my view, it is not necessary to consider the offence created by s 28 of the EM Act in the context identified by Mr Anderson, namely that if the mother’s own submission is to be accepted, she is committing the offence of failing to comply with a direction.

4. In any event, with respect to the position of both the mother and the father, I observe that the offence will only be committed if the failure to comply is ‘without reasonable excuse’. It is not for this Court to impede or guide the conduct of the State Co-ordinator in enforcement of the Direction. The Court obviously cannot declare that the operation of the Direction is excluded for the purpose of its orders or provide the parties with an immunity from prosecution for a State (or any) offence. But if the construction I have preferred above is not that preferred by the State authorities, one wonders if the State Co-ordinator or any authorised officer might regard having time with a child pursuant to an order of this Court made under the Act as a reasonable excuse for a perceived failure to comply with an aspect of the Direction which might otherwise be regarded as an offence.

5. The father’s very limited time with the child cannot be regarded as time with a child who lives between split households.  The Direction is cast in broad terms, does not attempt to identify all permutations of social interaction, and within its’ terms and that of the offence created by s 28 of the EM Act, there is considerable latitude, no doubt deliberately so.  The omission of any reference to what I have referred to above as normal family interaction also appears quite deliberate.  I am satisfied that the order can be complied with by observing the density principle and am unable to see why contact between a parent and a child would necessarily be caught by the terms of the Direction.  For the same reasons, it would appear that the maternal grandfather is most unlikely to be at risk of failing to comply with the Direction by permitting the father to have physical contact with the child pursuant to the order.

1. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date: 13 May 2020