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Senior Family Lawyer calls for urgent action for access to children for separated parents: Family law parenting issues are smouldering behind border closures and lockdown directives – Constitutional legal argument looms

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Attwood Marshall Lawyers Family Law Special Counsel, Michael Twohill, is determined to shine a spotlight on the issues separated parents are facing with border lockdowns and restrictions preventing access to their children. If necessary, he is prepared to test this issue in the High Court. It is important children can maintain relationships with their parents during the pandemic!

The issue

A detrimental effect of border closures is impacting separated parents and the time they, and extended family, spend with their children from interstate.

Back in April 2020, Attwood Marshall Lawyers called upon the Queensland Government to take urgent action in regard to the issues with cross-border parenting arrangements for children of separated parents. As a result, on 02 April 2020, new exemptions came into effect for persons entering Queensland on compassionate grounds or under compulsion of law (e.g. Court Orders). We commended the Queensland Government on the enactment of these exemptions at the time, however, as is the everchanging nature of COVID, new rules now apply for crossing the border, and it is causing uncertainty and anxiety for many separated families who long to spend time with their children.

Attwood Marshall Lawyers are once again involved in a matter where a 6-year-old boy lives with his mother in Victoria, and who is unable to spend time with his father and his father’s family. The father of the child, and the child’s paternal grandparents and other extended family members, live in South-East Queensland. Since the Victorian border closures on 28 March 2020, the child has been unable to travel to Queensland and spend time with his father as previously agreed upon by both parents. This has meant that any time the father gets to see his son has been and continues to be restricted significantly.

We are now in the school holiday period, which would usually be the primary time the father spends with his child according to parenting orders implemented in June 2019. The orders allow for the child to visit his father in Queensland. Due to the border closures, he is unable to do so because there are no exemptions in place for this to take place. The child cannot travel and therefore the father’s visitation time is restricted to video calls only.

This scenario is all too familiar. The system is failing the very persons it is trying to protect, the children. The court’s judicial officers are currently powerless as any orders they make are subject to the border travel restrictions.

In the 49 years of practising family law, 38 years as a solicitor, I have not witnessed a more dire situation.

I am tempted to put the Commonwealth v State legislation constitutional argument to the test and seek a specific order that states that the child be permitted to travel from Victoria to Queensland in a “parental bubble”, just like they allowed the AFL and NRL players to do!

The Family Law legislation is a federal Act and would over-ride conflicting state legislation. Section 109 of our Constitution provides:

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 109

Inconsistency of laws

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

As family lawyers, we want the best for our clients and want to help families reduce conflict and maintain positive relationships as much as possible. We must look at ways to manage the current pandemic so that parenting issues are not exacerbated, and children are able to maintain loving and fulfilling relationships with both their parents. We must look at ways to protect the best interests of the children affected by these restrictions and give effect to the agreed Family Court Orders.

During COVID-19 lockdowns, children rely more on the care and support of their parents, who are also adapting to the changing ways we live and work during these times. After children have already been ripped away from their social networks at school, reinforcing family relationships and routine has never been more paramount.

Unfortunately, for this case, we won’t be able to progress any further until the matter is in court again on 5th November 2021.

The impact of lockdowns on children

In addition to parenting issues that are exacerbated during COVID-19 lockdowns and restrictions, the impact of COVID for children is significant and far reaching.

The Commission for Children and Young People, Victoria, conducted a survey of the impact of COVID-19 on youth. The survey involved 644 children and young people and 172 staff from 70 organisations providing a range of services and supports to youth to gain insight into the impact of the pandemic.

The survey covered safety, mental health and education.

Children and young people reported mixed experiences during the pandemic. Most children and young people involved in the survey reported negative impacts on their mental health and wellbeing. Children and young people expressed the fact that they felt lonely, isolated, and unsatisfied with the disruption caused to their routines and coping mechanisms.

While many of the youth surveyed reported that the restrictions had provided a chance to reconnect with their families, for some youth the lockdown periods increased their exposure to family violence, abuse, and conflict.

Many children and young people’s education and development has been negatively impacted by lockdowns. Although some children enjoyed the greater flexibility and fewer distractions that came with remote learning, many children struggled to maintain motivation and learn away from the school environment. The long-term impacts of remote learning and social disconnect is yet to be seen.

Attwood Marshall Lawyers – supporting families through difficult times

We urge the Queensland Government once more to change the current border-crossing exemptions to consider the impact on children and parenting issues.

We are ready to help parties seeking legal advice and fast legal action during COVID-19, and can be contacted on our 24/7 phone line on 1800 621 071, or alternatively contact Family Law Department Manager, Donna Tolley, on 07 5506 8241, or email dtolley@attwoodmarshall.com.au.

If you have a matter concerning separation and parenting, our team are able to assist and are available at all our offices located at Kingscliff, Coolangatta, Robina Town Centre and Brisbane. As we cannot currently travel to our Sydney or Melbourne offices, we continue to offer telephone or video consultations for all clients in these locations to ensure there is no delay to resolving your matter.

You can also book an appointment directly on our website using our online book app. Click here to book an appointment today.

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