Mafton and Salmet (No.2)
[2020] FCCA 903
•2 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAFTON & SALMET (No.2) | [2020] FCCA 903 |
| Catchwords: FAMILY LAW – Urgent interim parenting hearing – father withholding child – father’s concern about risk to the children due to the pandemic and other factors. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60B(4), 60CC, 65C, 67T, 67U United Nations Convention on the Rights of the Child |
| Cases cited: M v M (1988) 166 CLR 76 Mafton & Salmet [2020] FCCA 256 Stott & Holgar and Anor [2017] FamCAFC 152 |
| Applicant: | MS MAFTON |
| Respondent: | MR SALMET |
| File Number: | MLC 1873 of 2018 |
| Judgment of: | Judge Harland |
| Hearing date: | 2 April 2020 |
| Date of Last Submission: | 2 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 2 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Heggie |
| Solicitors for the Applicant: | Nicholes Family Lawyers |
| The Respondent: | Appearing via telephone |
| Solicitors for the Independent Children’s Lawyer: | Ms Augustin of Victoria Legal Aid |
ORDERS
The Father deliver the child X born in 2015 (“the child”) to the Maternal Aunt at the foyer of Suburb BB police station at 10:00am on Friday 3 April 2020.
The interim orders dated 15 May 2019 be suspended so that the child lives with the Maternal Aunt from 10:00am on Friday 3 April 2020 until 10am on Friday 10 April 2020.
The parties conduct a changeover of the child at the foyer of Suburb BB police station at 10:00am on Friday 10 April 2020.
Thereafter the interim orders dated 15 May 2019 remain in full force and effect, until the matter returns on 22 April 2020.
In the event the Father does not comply with Order 1 herein a recovery order pursuant to s.67U of the Family Law Act 1975 will issue without the need for a further court appearance.
The Maternal Aunt have liberty to apply to Chambers with respect to Order 5.
AND THE COURT NOTES THAT:
(A)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.
(B)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.
(C)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
(D)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 Mafton & Salmet (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1873 of 2018
| MS MAFTON |
Applicant
And
| MR SALMET |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I will not repeat much of the submissions made before me today and the materials before me.
The application before me today is a result of an application in a case filed by the applicant aunt with respect to the interim parenting orders that are in place for X. She seeks make-up time and seeks otherwise that the arrangement pursuant to those orders continue, but that if the father fails or refuses to comply with the order, a recovery order issue. In practical terms, that would involve the Australian Federal Police attending and removing X from the father, which is most certainly a last resort as that can be very traumatic.
The father opposes the aunt’s application. Exhibit 2 is the father’s affidavit, which he has been unable to file, but which all the parties and the Court have. That affidavit consists of many pages, including previous affidavits of the father and annexures. In addition, the father has also submitted a document entitled the respondent’s rebuttal to the applicant’s proposed minute of interim orders. I have read and considered that document as well. I will not repeat the background to this matter, which is set out in the reasons for decision I gave after a four-day trial that I handed down on 20 February 2020. Those reasons should be read for background Mafton & Salmet [2020] FCCA 256. No appeal has been lodged.
Interim orders rather than final orders are currently in place for the reasons set out in the last part of my judgment. I have given the parties an opportunity to comment on proposed orders that provide for the transition of X’s care in a slow and staged manner from the aunt. The parties are yet to do this. In particular, paragraphs 304 and 305 of those reasons are important to explain the current family dynamics.
It is clear from the father’s affidavits, annexures and submissions, that as Ms Heggie outlined, there are, in essence, three areas of great concern to the father, upon which he bases his objections to complying with the current orders. They can be categorised as, firstly, an objection to the jurisdiction of the Court, secondly, risk factors to X as a result of abuse by the maternal aunt, and, in particular, in reference to the bruises on X and the disclosures that the father says X made, and risks posed by the maternal grandmother, and, thirdly, his concerns that relate to risk issues posed by the coronavirus pandemic. I will address each of those areas in turn.
First, I will address the issue of the jurisdiction and status of the Family Law Act 1975 (Cth) (“the Family Law Act”). The father’s argument in this regard as referred to in his material is misconceived and fails to appreciate the operation and interaction of the various Commonwealth laws. There is nothing that has occurred in the course of the pandemic that has revoked or suspended the powers and authority of this Court, and any other Court, exercising jurisdiction under the Family Law Act. It is also very clear and was clear during the course of the trial, and in my reasons, that the Family Law Act and its operation insofar as children’s matters in Part VII is concerned is not limited to disputes between parents. This is a dispute between the maternal aunt and father, and the father is certainly correct. He is the only living parent of X, and a very important person in X’s life.
However, s.65C of the Family Law Act is unambiguous in setting out categories of persons who have standing to bring parenting applications under the Family Law Act. They include persons who are concerned with the care, welfare and development of a child. The applicant aunt clearly falls into that category and certainly during the trial. All counsel were alive to that distinction despite there being on occasions during the trial and today, slips by lawyers referring to the aunt as the mother, which is clearly an error. I am not satisfied that that is a result of them failing to appreciate that the aunt is not X’s parent and never can be. What is also clear from Part VII of the Family Law Act, including s.60B being the objects section, and also s.60CC which sets out factors to assist the Court in determining what is in a child’s best interest, is that it is important to consider the rights of the child to maintain a meaningful relationship with that child’s parents, also with significant other family members.
The father also refers to the UN Convention on the Rights of the Child (“the Convention”) and sets out the text of that Convention. That Convention is specifically referred to in s.60B of the Family Law Act in the objects section at subsection (4), referring to an object of Part VII being to give effect to the Convention. Both the Full Court of the Family Court and the High Court have commented on the Convention and its interaction with the Family Law Act.
As an international instrument, the Convention itself has not become part of Australia’s domestic law, but the reference to the Convention in s.60B(4) by Parliament envisaged an intention that when interpreting the Family Law Act, the law should be consistent with the Convention. The Convention addresses the rights of the child to identity, to relationships with parents, and also to family relations. It is not restricted only to addressing a child’s relationship with parents.
The paramount consideration in all parenting matters before the Court, regardless of whether or not it involves a contest between two parents, or a contest between a parent and another person, is the child’s best interests. There is no basis for the purported challenge to the jurisdiction of the Court or the power and authority of the Court to make orders with respect to X.
I will turn to the issues of risk that the father raises, and before examining those risks which both had indicated earlier, the specific risk presented by the aunt and the maternal grandmother, and also broader risk as a result of the Coronavirus pandemic. The task of the Court in considering risk is to consider whether or not there is an unacceptable risk to the child. That concept has been discussed in several family law decisions. With respect to the analysis and consideration of unacceptable risk, refer to the High Court decision of M v M (1988) 166 CLR 76 and more recently, the decision of the Full Court in Stott & Holgar and Anor (2017) FamCAFC 152.
As I indicated in my primary reasons, although in a different context, and that was in the context of the argument against the father having parental responsibility for medical decisions in particular, is that it is impossible to eliminate risk altogether. In any context, there are risks to humans every day of all sorts. The issues that the Court has to look at is whether or not the current circumstances prevent an unacceptable risk to X.
The father annexes two photographs of X to his affidavit which shows a bruise to X’s forehead and as indicated the colour photograph has been tendered and marked as an exhibit, as has the further three coloured photographs which are dated 20 March 2020. The father says that when X came into his care after being with the aunt, X had significant bruising on her forehead which caused him concern. He took X to the doctor. The father said during the hearing today that X disclosed to the doctor that she had been injured by her aunt when her aunt had smashed glass and had shouted at her that she hated her.
He says X disclosed this to the doctor and that the doctor was sufficiently concerned to make a report to the Department of Health and Human Services (“the Department”). He also said in submissions that X had told him that she does not want to return to her aunt.
The other risk issue with respect to the aunt’s family was raised by the father with respect to the maternal grandmother and as I referred in my primary reasons, a gap in the aunt’s case at that time was the failure to call the maternal grandmother as a witness.
The risk issue raised with respect to the maternal grandmother centres on allegations that she sexually abused the aunt’s sister when she was nine years old. During the course of argument earlier today, the Independent Children’s Lawyer indicated that she had spoken with the liaison officer for the Department, who had indicated that it was not a current ongoing investigation. Due to this issue being raised, I caused my Chambers to write to the liaison officer to seek information as to whether or not there was current involvement by the Department with respect to these matters. Exhibit 3 is the response which was emailed to the parties and read to the father before these reasons commenced, because he had not received the email.
What that indicates is that it had been reported to the Department that when the maternal grandmother was 12 years old, she had allegedly assisted her stepbrother to sexually abuse her sister, that the police Sexual Offence and Criminal Investigation Team had been informed of the allegation and they had assessed that they would not take the matter further, did not have any information about Ms CC having a criminal history, and that the Department did not assess that Ms CC posed a significant risk to X.
It is clear from the submissions the father made after being told of this response that it is inconsistent with the information that he has been provided by the aunt’s sister. He also refers to text messages from the aunt’s sister with respect to that issue which are not currently before the Court. The email also addresses the report made to the Department on 20 March 2020, where it was reported that X had a bruise to her forehead allegedly caused by the maternal aunt.
The email indicates that via telephone contact with the doctor who assessed X on 20 March 2020, the Department was satisfied that X had said she had fallen over, which caused the bruise, and that the doctor assessed the bruise was consistent with the child’s explanation, and the Department assessed that the aunt did not pose a significant risk to X. Again, the father states that that is in direct contradiction to what the doctor told him and what X told the doctor.
Counsel for the aunt points to the photograph on 18 March 2020 and the photograph taken on 20 March 2020 where it is apparent that the earlier photo showed one bruise and the later photo showed two. It is not said in support of any argument that X is at an unacceptable risk in her father’s care, but rather saying that those photos indicate some sort of further bruising between those dates. It could also be that it is bruising that is showing up more with the passing of a couple of days. In either event, certainly, the bruises are easily visible, but the state of evidence with respect to this (I acknowledge that the father would seek to subpoena the doctor’s records and place further evidence with respect to this issue), and that the response from the Department is in a very summary form, doing the best that I can with the information before me, and having regard to the primary decision I have made after having the benefit of testing the evidence of the parties and experts, I am not satisfied that the aunt or the maternal grandmother pose an unacceptable risk to X as a result of the issues.
The third area of risk that the father identified is with respect to the current worldwide coronavirus pandemic. There is no doubt that across the world the people are living in extraordinary times and are living in conditions and with restrictions that certainly in Australia we have not experienced before. There is much anxiety in the community, which is understandable, with respect to this pandemic, which has led to many restrictions on people’s ordinary living arrangements. This is a period of much uncertainty and stress for everyone. One of the challenges has been the amount of information that is published about this virus and the changing information and directives that are provided by State and Federal Government. The father refers to an interview given by the Chief Justice Alstergren of the Family Court who is also the Chief Judge of the Federal Circuit Court. He also refers to and highlights parts of the media release the Chief Justice released with respect to parenting issues in this current climate. This document and recent practice directions issued jointly by the Family Court and the Federal Circuit Court is that it has been necessary to modify the Court practices and proceedings in significant ways in order to reduce risks of exposure to the virus by both parties and Court staff, and, indeed, this interim hearing is being conducted remotely by telephone to address this.
Turning to the press release from the Chief Justice dated 26 March 2020, the father refers to parents being naturally deeply concerned about the safety of their children and how this virus will affect them. The father highlights paragraphs 3, 4, 9 and 13, in particular, with respect to that statement, and, in particular, as the father has with provisions of the Family Law Act, he particularly emphasises the reference to parents and parents being able to agree or not agree about arrangements. What he does not refer to is the references in his statement to parents and carers, and, specifically, as His Honour makes clear, and I quote:
It is imperative that parents and carers act in the best interests of their children. This includes ensuring children’s safety and wellbeing.
He goes on to state that:
Consistent with their responsibilities to act in the children’s best interest, parents and carers are expected to comply with Court orders in relation to parenting arrangements. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders.
He goes on to address that there may be genuine safety issues that arise where one parent, or someone in close contact with a parent – and this equally applies to a carer – has been exposed to the virus which may restrict the safe movement of a child from one house to the other. There are also circumstances of particular risk where a person has a compromised immune system and where persons have been directed to self-isolate, such as those who have returned from overseas travel in the last 14 days. Others who must self-isolate are those who have come into contact with someone suspected of having the virus. The father particularly refers to with concern the directives of Commonwealth and State governments and the fact that currently, the state of Victoria is in what has been referred to by the Government as stage three lockdown with stay at home directives and that those directives include that parties or individuals should stay at home unless one of the exceptions apply.
As I indicated earlier, one of the difficulties for individuals in this uncertain time is that there is a barrage of information from various sources that changes from day to day with respect to this virus. It is important, therefore, to refer to official sources. In this regard, I refer to the Victorian State Government’s Health and Human Services website. In particular, the information provided with respect to the coronavirus disease and the information provided about the stay at home and restricted activities directives and the frequently asked questions about those.
In summary, it refers to the Victorian Government’s directions that all Victorians stay at home to help limit the spread of the coronavirus. It states that the majority of confirmed cases have come from overseas but that there are an increasing number of locally acquired cases emerging in the community, and one of the things that the father has pointed to with particular concern is the number of cases that have been identified in the City D area. It is certainly clear from the information that is provided by the Victorian Government and updated daily, that there are some areas where there are an increased number of cases than other areas.
The frequently asked questions goes on to say that this stay at home direction applies to all Victorians from midnight 30 March 2020 until midnight 13 April 2020, and that it is compulsory except in limited circumstances. It refers to the Deputy Chief Health Officer of Victoria’s Lawful Directions that have been issued as part of the current state of emergency. I will refer to that document directly, which is also available on the website. It is annexed to these reasons.
The document is entitled “Directions from the Deputy Chief Health Officer (Communicable Disease) in accordance with the emergency powers arising from the declared state of emergency: Stay at Home Directions pursuant to section 200 of the Public Health and Wellbeing Act 2008 Victoria.” It refers to the stay at home directions and also specifically refers to exceptions to the directions. For example, the exceptions at clause 6 allow persons to leave their home for the purposes of acquiring necessary goods and services such as groceries, medicines, and the like. Clause 8 provides for persons attending work and education, and clause 9 addresses leaving the home for the purposes of exercise and the restrictions on that.
This directive, the practice directions issued by the Courts and the statement issued by the Chief Justice all refer to measures which are expected to be complied with in order to reduce risks. The important clause for the circumstances of this case is clause 7, which addresses leaving the premises for care and other compassionate reasons. In particular, clause 7(1) states that:
A person may leave the premises due to
(a): to meet obligations in relation to shared parenting arrangements, whether the arrangements are under a Court order or otherwise.
What the parties need to take from this is that the current state of emergency and restrictions that are put in place do not provide a general excuse for not complying with parenting orders of the Court. This is consistent with the statement that the Chief Justice issued.
It is necessary to consider whether there are particular risks in the circumstances of this case. There is no suggestion that either the aunt, her partner, the father, or the child have immune-compromised systems. There is also no evidence or suggestion that any of these persons have come into contact with or been exposed to someone who is suspected of having the virus.
There is also no evidence that any of the parties involved have breached the directive and the requirements of social distancing. Considering all of these circumstances, and whilst I appreciate that these are troubling times and it is natural for parents to be worried, I am not satisfied that there is unacceptable risk to X for any of the reasons discussed such that the current parenting orders should not be complied with. For completeness, I should refer to s.67U of the Family Law Act which the father referred to in his material which concerns persons who can apply for recovery orders under the Family Law Act. Again, it is clear that pursuant to s.67T, that the categories of persons who can apply for recovery orders include persons who are concerned with the care, welfare and development of a child, and the aunt falls into that category. As with other orders under Part VII of the Family Law Act, the Court must be satisfied that making such an order is in the child’s best interest.
The aunt’s primary position is that the father should attend for changeover tomorrow at 10:00am at the Suburb BB Police Station in order for X to spend time with her, and the aunt seeks additional time to make up the time she has missed under the orders in recent weeks. The Independent Children’s Lawyer supports the orders being complied with, but does not support the aunt’s position of having X remain in her care for a 12-day period for the very reasons that I alluded to in my final reasons for decision, which is the importance of X having time with both the aunt and the father, and X not being subjected to further significant disruptions to her care arrangements, as she experienced previously. That would be harmful to her emotional and psychological wellbeing. The aunt only seeks a recovery order issue in the event that the father is unwilling to comply with the Court orders.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 21 April 2020
ANNEXURE A
Directions from Deputy Chief Health Officer (Communicable Disease) in accordance with emergency powers arising from declared state of emergency Stay at Home Directions
Public Health and Wellbeing Act 2008 (Vic)
Section 200
I, Dr Annaliese van Diemen, Deputy Chief Health Officer (Communicable Disease), consider it reasonably necessary to protect public health to give the following directions pursuant to section 200(1 )(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act):
PART 1 – PRELIMINARY
1 Preamble
(1)The purpose of these directions is to address the serious public health risk posed to Victoria by Novel Coronavirus 2019 (2019-nCoV).
(2)These directions require everyone in Victoria to limit their interactions with others by:
(a)restricting the circumstances in which they may leave the premises where they ordinarily reside; and
(b)placing restrictions on gatherings.
(3)These directions must be read together with the Restricted Activity Directions, the Isolation (Diagnosis) Direction, the Hospital Visitor Directions and the Aged Care Facilities Directions.
(4)These directions replace the Prohibited Gatherings Directions
2 Citation
These directions may be referred to as the Stay at Home Directions.
3 Revocation
The Prohibited Gatherings Directions are revoked with effect from midnight on 30 March 2020.
4 Stay at home period
For the purposes of these directions, the stay at home period is the period beginning at midnight on 30 March 2020 and ending at midnight on 13 April 2020.
PART 2- STAY AT HOME
5 Direction - stay at home other than in specified circumstances
Requirement to stay at home
(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 in:
(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).
Note: a person may have more than one ordinary place of residence and, if so, is able to move freely between those places: see subclause (5) and clause 10(1)(g).
Ordinary place of residence
(2)Subject to subclause (3), subclause (1) does not apply to a person at any time during the stay at home period when the person:
(a) does not have an ordinary place of residence; or
(b) has an ordinary place of residence, but that place is temporarily unavailable or is unavailable because of a risk of harm (including harm relating to family violence or violence of another person at the premises);
(3)If a suitable premises is made available for a person identified in subclause (2) to reside at for the stay at home period (or part thereof):
(a) that premises is taken to be the person's ordinary place of residence for the period (or part thereof); and
(b) subclause (1) applies accordingly.
(4)If a person ordinarily resides outside Victoria, the premises where that person is temporarily residing in Victoria during the stay at home period (or part thereof) is taken to be the person's ordinary place of residence for the period (or part thereof).
(5)If a person has more than one premises at which they ordinarily reside, including a child under a shared parenting arrangement, each such premises is taken to be the person's ordinary place of residence for the stay at home period.
Examples: a person works in the city during the week and resides at one premises during that time, but returns to a different premises at the weekend; a child who lives at different premises under a shared parenting arrangement.
(6)If, during the stay at home period, a person moves from the premises at which they ordinarily reside to a new premises, the new premises is taken to be the premises at which the person ordinarily resides from midnight on the day that the person moves.
PART 3- REASONS TO LEAVE PREMISES
6 Leaving premises to obtain necessary goods or services
(1)A person may leave the premises to obtain:
(a) food or drink; or
(b) goods and services for health or medical purposes; or
(c) other necessary goods or services including, but not limited to, goods or services provided by:
(i)a financial institution;
(ii)a government body or government agency;
(iii)a post office;
(iv)a pharmacy;
(v)a hardware store;
(vi)a petrol station;
(vii)a pet store or veterinary clinic;
(viii)a retail facility that is not prohibited from operating by the Restricted Activity Directions.
7 Leaving premises for care and other compassionate reasons
(1)A person may leave the premises:
(a) to meet obligations in relation to shared parenting arrangements, whether the arrangements are under a court order or otherwise;
(b) if the person is a parent or guardian of a child, to visit the child the child is in detention, or in the care of another person, and to meet any obligations in relation to care and support for that child;
(c) to provide childcare, early childhood education or schooling to a child or young person who is vulnerable because the child or young person:
(i)resides in the care of the State; or
(ii)is deemed vulnerable by a government agency, or funded family or family violence service, and is assessed as requiring education and care outside the family home;
(d) to provide care and support to a relative or other person who has particular needs because of age, infirmity, disability, illness, a chronic health condition, or because of matters relating to the other person’s health (including matters relating to mental health or pregnancy);
(e) to attend a residential aged care facility if that attendance is not prohibited by the Aged Care Facilities Directions, including for a care and support visit;
(f)to attend a hospital if that attendance is not prohibited by the Hospital Visitor Directions, including for a care and support visit;
(g) to attend a funeral or wedding, if that funeral or wedding complies with the requirements in clause 11;
(h) to donate blood; or
(i) to escape harm or the risk of harm, including harm relating to family violence or violence of another person at the premises.
8 Leaving premises to attend work or education
(1)Subject to subclause (2), a person may leave the premises to:
(a) attend work (whether paid or voluntary, including for charitable or religious purposes); or
(b) attend an educational institution; or
(c) do anything necessary to attend that work or educational institution including, but not limited to, taking a child to child care, an early childhood educational facility, a school to another educational facility.
(2)A person may leave the premises under subclause (1) only if it is not reasonably practicable for the person:
(a) to work from the premises; or
(b) to obtain the educational services provided by the educational institution from the premises.
9 Leaving premises for exercise
(1)A person may leave the premises to exercise, but must:
(a) comply with the restrictions on gatherings in clause 11; and
(b) take reasonable steps to maintain a distance of 1.5 metres from all other persons.
Note: The effect of clause 11 is that a person can only exercise with people that live at the same premises; or alternatively, with one other person with whom they do not ordinarily reside.
(2)Subclause (1)(b) does not prevent a person from walking with another person or persons for the purposes of exercise.
10 Leaving premises for other reasons
(1)A person may leave the premises in the following circumstances:
(a) for emergency purposes;
(b) as required by law, including, but not limited to, attending:
(i)a police station;
(ii)a court or other premises for purposes relating to the justice or law enforcement system;
(c) if the premises in which the person ordinarily resides is no longer available for the person to reside in or is no longer suitable for the person to reside in;
(d) for the purposes of moving to a new premises at which the person will ordinarily reside;
(e) if the person ordinarily resides outside Victoria, for the purposes of leaving Victoria;
(f) if the person is permitted to leave Australia, for the purposes of leaving Australia; or
(g) if the person ordinarily resides at more than one premises, for the purposes of moving between those premises.
PART 4-GATHERINGS
11 Restrictions on gatherings
Indoor gatherings
(1)Subject to subclause (2), during the stay at home period, a person must not enter any single undivided indoor space, unless:
(a) no other person is in that space; or
(b) only one other person is in that space; or
(c) more than one other person is in the space, but all of those other persons ordinarily reside at the same premises as the person.
(2)Subclause (1) does not apply if the person enters the space:
(a) for purpose of attending a wedding that complies with the requirements in subclause (5); or
(b) for the purpose of attending a funeral that complies with the requirements in subclause (6); or
(c) for one or more of the purposes specified in clauses 6 (food and drink), 7 (care), 8 (work and education), 9 (exercise) or 10 (other specified reasons).
Note: This paragraph permits a person to enter, for example, a supermarket or their workplace, regardless of how many people are in that place. It also permits a person to use transport to access a place that they are permitted to go, regardless of how many people are on the tram, train, or bus. It also permits a group of people from the same premises, or two people from different premises, to travel together in a car to a place that they are permitted to go, such as a supermarket.
(3)During the stay at home period, a person must not permit another person to enter the premises at which they ordinarily reside, unless:
(a) the other person also ordinarily resides at the premises; or
(b) the person is residing at the premises in accordance with the Isolation (Diagnosis) Direction; or
(c) it is necessary for the other person to enter the premises for one or more of the purposes specified in clauses 7 (care) or 8 (work and education); or
(d) it is necessary for the other person to enter for the purposes of attending a private inspection of the premises, organised in accordance with clause 14(2) the Restricted Activity Directions; or
(e) it is necessary for the other person to enter for medical or emergency purposes; or
(f) the entry is otherwise required by law.
Outdoor gatherings
(4)During the stay at home period, a person must not arrange to meet with more than one other person in an outdoor space, except:
(a) where each other person ordinarily resides at the same premises; or
(b) for the purpose of attending a wedding that complies with the requirements in subclause (5); or
(c) for the purpose of attending a funeral that complies with the requirements in subclause (6); or
(d) it is necessary to arrange a meeting for one or more of the purposes specified in clauses 7 (care) or 8 (work and education).
Weddings and funerals
(5)For the purposes of subclauses (2)(a), the requirements for a wedding are that:
(a) it involves only 5 persons:
(i)the two persons being married; and
(ii)the authorised celebrant; and
(iii)two persons witnessing the marriage for the purposes of section 44 of the Marriage Act 1961 of the Commonwealth; and
(b) in any case, if the wedding is held in a single undivided indoor space, the total number of persons present at the same time in the space must not exceed the density quotient.
(6)For the purposes of subclauses (2)(b), the requirements for a funeral are that:
(a) it involves no more than 10 persons (excluding persons necessary for the conduct of the funeral); and
(b) in any case, if the funeral is held in a single undivided indoor space, the total number of persons present at the same time in the space must not exceed the density quotient.
PART 5 - OTHER PROVISIONS
12 Relationship with other Directions
(1)If there is any inconsistency between Parts 2 and 3 of these directions and the Isolation (Diagnosis) Direction, Parts 2 and 3 of these directions are inoperative to the extent of any inconsistency.
(2)If there is any inconsistency between these directions and a direction or other requirement contained in a Direction and Detention Notice, given to a person who has arrived in Victoria from overseas, these directions are inoperative to the extent of the inconsistency.
13 Definitions
For the purposes of these directions:
(1)authorised celebrant has the same meaning as in the Marriage Act 1961 of the Commonwealth;
(2)care and support visit means a visit of no longer than 2 hours made to a patient of a hospital, or a resident of a care facility, by one person, or two persons together, for the purposes of providing care and support to the patient or resident, as the case requires;
(3)density quotient of a single undivided indoor space is the number calculated by dividing the total area of the space (measured in square metres) by 4.
Note: If an indoor space is 8.5 metres long and 4.5 metres wide, its total area is 38.25 square metres. Its density quotient is 9.56, so no more than 9 people would be permitted to be in the indoor space at one time.
(4)hospital has the same meaning as in the Hospital Visitors Directions;
(5)indoor space means an area, room or premises that is or are substantially enclosed by a roof and walls, regardless of whether the roof or walls or any part of them are-
(a) permanent or temporary; or
(b) open or closed;
(6)outdoor space means a space that is not an indoor space;
(7)patient has the same meaning as in the Hospital Visitors Directions;
(8)pharmacy has the same meaning as in the Pharmacy Regulation Act 2010;
(9)premises has the same meaning as in section 3 of the PHW Act, which includes a vehicle;
(10)residential aged care facility has the same meaning as in Aged Care Facilities Directions;
(11)retail facility has the same meaning as in the Restricted Activity Directions.
14 Penalties
Section 203 of the PHW Act provides:
Compliance with direction or other requirement
(1)A person must not refuse or fail to comply with a direction given to the person, or a requirement made of the person, in the exercise of a power under an authorisation given under section 199.
Penalty: In the case of a natural person, 120 penalty units.
In the case of a body corporate, 600 penalty units.
(2)A person is not guilty of an offence against subsection (1) if the person had a reasonable excuse for refusing or failing to comply with the direction or requirement.
Dr Annaliese van Diemen
Deputy Chief Health Officer (Communicable Disease), as authorised to exercise emergency powers by the Chief Health Officer under section 199(2)(a) of the PHW Act.
30 March 2020
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