Cases involving international relocation of children are difficult at the best of times.  Throw in a ‘once in a hundred years’ global pandemic and you add another layer of complexity to the mix.

So what impact, if any, does COVID-19 have on the Federal Circuit and Family Court of Australia’s decision making?  In two recent Court of Appeal decisions, the impact of the pandemic was discussed and addressed in somewhat different fashions.

Both cases involved international relocation of children but were different in that one was an appeal by a father against his child being allowed to relocate to Belgium with his mother and the other appeal was by a mother against an Order requiring her to return the child to Canada.

In Denham & Newsham [2021] FamCAFC 141, the father appealed the Trial Judge’s decision to allow the mother to relocate with the parties’ son to Belgium from March 2022. The original Order was made on 23 April 2020. The parties’ son was three and half years old at that time.

As part of his appeal, the father sought to adduce further evidence, including COVID-19 and restrictions on international travel imposed by Australia and Belgium. For the evidence to be admitted, the father needed to demonstrate that it was likely to produce a different result and that it was in the best interests of the child to have a new hearing.

At the time of the original trial (10-12 February 2020), the pandemic had not commenced and no one contemplated the health disaster that would unfold, nor the travel restrictions that would be put in place. The trial had proceeded on the understanding that the parties and child would be able to move freely between the two countries. The Court found, unsurprisingly, that the restrictions to travel and related expenses (including quarantining) pointed strongly towards a different outcome and the evidence was allowed.

The Court of Appeal found that had the father’s further evidence been placed before the Trial Judge, it compelled a finding that the mother’s proposals for the child’s time with the father could not be assured and that any prediction for face-to-face time between the child and the father if the child lived in Belgium would be no more than mere speculation. This undermined the Trial Judge’s finding to the effect that the child and father would maintain a meaningful relationship if the child moved to Belgium in 2022.

In Kingsley & Secretary, Department of Communities and Justice (No.2)[2021] FamCAFC 144, the mother appealed against an Order made on 11 November 2020 pursuant to the Hague Convention for the parties’ child to be returned to Canada. The Trial Judge had found that the child had been wrongfully removed from Canada to Australia. 

Part of the mother’s grounds of appeal included a number of arguments relating to the pandemic:

  • There was a grave risk of the child contracting COVID-19 if they were returned.
  • She could not afford the costs of travel, including the costs of quarantine.
  • She was not eligible for a visa permitting her to enter and work in Canada.
  • The Australian Government Smart Traveller website advised in relation to Canada ‘do not travel’.
  • The pandemic constituted an ‘exceptional circumstance’.

At first instance, the Trial Judge had made a finding that the existence of the COVID-19 pandemic alone did not constitute an ‘exceptional circumstance’ which would result in the child not being returned to Canada. The Court of Appeal agreed and dismissed the mother’s grounds. It noted that the Return Order did not provide for the mother to accompany the child back to Canada and, if required, the father would travel to Australia to accompany the child back to Canada.

As can be seen, in Denham the pandemic ended up helping the father’s case for the child to remain in Australia (at least until a re-hearing of the case).  The decision for the child to be allowed to relocate to Belgium was made prior to the pandemic being in full swing.  Conversely, in Kingsley, the Court knew all about the pandemic when ordering a return of the child to Canada and its very existence did not result in that Order being impracticable to enforce. 

It will be very interesting to see how the Court takes the pandemic into account as the vaccination rates increase and international borders begin to re-open.  Watch this space…………

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