PARENTING DILEMMA DURING THE COVID-19 PANDEMIC
MADAR & MCCORMACK
FEDERAL CIRCUIT COURT OF AUSTRALIA
[2020] FCCA 1152
This case involves parenting orders made prior the issuance of the State Emergency Management Plan. The Court decides whether or not the parenting orders it made has to be changed to coincide with the Emergency Management (Gatherings No 2)(COVID 19) Direction 2020 SA.
FACTS:
The Court made parenting orders by consent which provided for the parties’ child, X, to spend time with Mr. Madar (Father) on certain occasions subject to a proviso such are to be supervised by the maternal grandfather in the home of the maternal grandparents, and to be in accordance with s 3(1)(b) of the Emergency Management (Gatherings No 2)(COVID 19) Direction 2020 SA (‘the Direction’).” No submissions were heard on the operation or meanings 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 meters from the child during the period of his time subject to the orders. The child is about 16 months old.
ISSUE:
Whether or not the Court should change the parenting orders made in the light of the Direction.
HELD:
After giving regard to the operation of the Direction and the EM Act, the Court concluded that no order is necessary to change the existing parenting orders.
Prohibited gathering, as adopted in the order, requires the parties to ensure that during the father’s 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 meters. This 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. 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 Direction does not expressly create any exemption in complying with the directions at cls 4(1) – (6) [1] for parties in the same family (whether living together or split) or persons in the same household. Persons usually living in a household of 10 or more would still be required to use their best endeavors to comply with the social distancing principles because of the broad wording of cl 4(4). 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.
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? The Court viewed this question answerable by the terms of the Directions themselves. They refer to ‘allowing’, ‘organizing’ and ‘attending’ a prohibited gathering. This suggests something other than the usual exigencies of family life.
Further, the terms of cl 4(4) are qualified by the words ‘best endeavors’ and ‘having regard to all of the circumstances’. It does mean that it is recognized in the Direction that the ability to comply with the social distancing principles will depend on the prevailing circumstances.
“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.” [2]
[1] 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 organize 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.
[2] Heffernan, J, Madar & McCormack [2020] FCCA 1152 (13 May 2020), 23.