Issues with cross border parenting arrangements for children of separated parents has caused uncertainty and anxiety for some families. Family Special Law Counsel Michael Twohill has called upon the Queensland Government to take urgent action.
UPDATED, April 3, 2020:
As at 11pm on Thursday, April 02, new exemptions have come into effect for persons entering Queensland on compassionate grounds or under compulsion of law. These exemptions apply to:
- Any person, who:
- ordinarily resides in another State or Territory; and
- is a carer or relative of a dependant individual who is in Queensland; and
- is required to travel to Queensland to assist, care or support for the dependent individual.
- Any dependant individual, who:
- ordinarily resides in another State or Territory; and
- is required to travel to Queensland to reside with a carer or relative who resides in Queensland because a carer or relative is unable to care for them in their home State or Territory; or
- 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.
Attwood Marshall Lawyers commends the Queensland Government on the enactment of these exemptions.
INITIAL REPORT, April 1, 2020:
Attwood Marshall Lawyers has called for immediate changes to exemptions to the cross-border restrictions imposed by the Queensland Government last week due to COVID-19. Attwood Marshall Lawyers is located on the QLD-NSW border with offices at Coolangatta (in QLD), Kingscliff, (in NSW), and Robina Town Centre.
The current crisis we are facing
We hold grave concerns for families where parents have separated and have agreed to parenting plans rather than Court Orders relating to children in our communities due to anomalies in Queensland’s Border Restriction Exemptions recently directed by Dr. Young pursuant to s362B of the Public health Act 2005 to assist in containing the spread of COVID-19 within the community.
The current exemptions allow New South Wales residents to cross into Queensland if they have (Family) Court Orders. Families with informal agreements or parenting plans, however, are not exempt. This has caused confusion, panic and in some cases, fear of domestic violence.
Examples of disputes arising include:
- Some couples are in dispute because the resident parent says that because there are no orders in place the children cannot cross the border;
- If the children reside in New South Wales but attend school in Queensland, there is also no exemption to allow those children to cross the border each day to go to school.
The anomalies in the wording have given rise to otherwise unnecessary action and cost by those affected to enable them to be able to continue their parenting arrangements.
The anomalies have resulted in:
(1) Families having to pay for legal advice on border restrictions and the resulting documentation to obtain a Family Court Order;
(2) Unnecessary delay in having to attend a Dispute Resolution Practitioner to obtain a S60I Certificate prior to being able to file anything other than a Consent Order in the Federal Circuit Court for suitable Parenting Orders;
Case at hand
Last week one such dispute over this issue had escalated on Friday to the point where our client said he would be at the house to collect the child for his weekly time with or without the mother’s consent. The mother said she intended calling the police to the property to ensure that did not happen.
A confrontation was avoided at the last minute when the parties, through their lawyers, reached an agreement and signed a Parenting Plan. The mother was demanding that the child spend time with the father on the New South Wales side of the border or not at all. Her proposal was for the father to spend the day with the child in New South Wales, get accommodation for the night in New South Wales and then drop the child back home the following afternoon before returning to Queensland. The parents had an existing informal arrangement in place since separation in November 2019 where the father would pick the child up twice per week and take him to his residence in Queensland so that the child could spend overnight time with him and return him to the mother the following day.
The father was adamant the child should be allowed to come into Queensland with him however technically the exemption did not allow it. Thankfully the police allowed him through and both parties now each have a copy of the signed document with them at all times when travelling across the border. Two carefully worded clauses in the Plan allayed the mother’s fears that the father would not return the child in the event of a lockdown.
The arrangement still doesn’t comply with the restrictions as the exemption still doesn’t apply to Parenting Plans however if the wording is changes it will comply.
COVID-19 Domestic violence
There is evidence of COVID-19 related domestic violence escalating. There has been a 75% surge in Google searches for help during nationwide shutdown of non-essential services. Women’s Safety, has reported that more than 40% of workers have seen an increase in clients in NSW, with over a third of cases directly linked to the virus outbreak. Domestic violence was a killer before and with COVID-19 the stakes are phenomenally higher – this anomaly needs to be addressed immediately before we have an incident of catastrophic proportions.
Urgent recommendations from Attwood Marshall Lawyers
Our family law clientele and extended community has been acutely affected by the anomaly in Queensland Border Restriction Exemptions, and we urge immediate action be taken on the issue, especially in the current climate of domestic and family violence.
The anomaly can be immediately eliminated by a subtle change to the wording of the exemption insofar as it relates to families who are separated and have children living in New South Wales who either travel into Queensland to spend time with the other parent who lives in Queensland. That subtle change can also include those children who may be living in new South Wales and attending schools in Queensland.
We urge the Queensland Government to change the current wording in the exemption as a matter of urgency. It would be as simple as adopting the wording in Point 13 of the directives announced by the New South Wales Premier earlier today so that:
- Parties who have an existing non-binding parenting agreement are exempt;
- Parties who negotiate a written parenting agreement, specifically worded to cover the COVID-19 restriction period are exempt.
In time, if there is a full lockdown the wording may then need to be changed again so that children can still spend time with their Queensland resident parent notwithstanding the lockdown.
We have sent a copy of our submissions to newly-elected Currumbin MP, Laura Gerber, who incidentally started her legal career at Attwood Marshall Lawyers and will be conversant with these border issues.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers advise families affected to contact a suitably qualified solicitor during this time or the local Legal Aid, or Community Legal Service via the phone if possible. Domestic violence should be reported to the local police.
Our experienced family law team is ready to help parties seeking legal advice and fast legal action during COVID-19, and can be contacted 24/7 on 1800 621 071.