VIC Travel child access

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Bobby123

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26 July 2020
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My daughter is in Queensland and I am in Melbourne, with restrictions in place are we allowed to travel for child access purposes?
 

Atticus

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6 February 2019
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Travel into, or back into Queensland from Vic is going to be the problem... That said, there appears to be some exemptions relating to child access >>>>>

Any person who has been in a declared COVID-19 hotspot (including Victoria) within the last 14 days will not be permitted to enter Queensland, unless they are:

  • a Queensland resident returning home, subject to government directed quarantine at their own cost
  • a person performing an essential activity - essential activities are determined by the Chief Health Officer and are limited to national defence and security, emergency services, transport of freight, time critical specialist workers, or airline or maritime crew. These people will not be required to quarantine but are subject to additional restrictions and requirements
  • to fulfil a legal obligation relating to shared parenting or child access
SOURCE .>> Queensland border restrictions

IMPORTANT to note>>>> the above applies to a LEGAL OBLIGATION , ie, there are orders for access in place...

Probably still strict quarantine requirements in place when the person enters Qld..


 

Tim W

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No.

You are only entitled to travel to fulfil a duty - that is, to do something that you must do.
You not entitled to travel to exercise an entitlement - that is, to do something that you can, but not must, do.
 

Atticus

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6 February 2019
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Yep ... I agree with sammy >>>> This in an excerpt from his link ... The Courts strongly advise that families seek advice from the relevant State and Territory authorities about how the border restrictions and quarantine requirements may impact them and their circumstances. For example, there may be exemptions that enable families with court orders in place, to travel across State or Territory borders.

The link I provided in my first post is the LATEST border update from Qld & clearly allows parents to fulfill legal obligations relating to shared parenting or child access .... Just carry a copy of the above, have your court order & obviously the mandatory border pass that you can apply for on line ..... Then it's up to the cop at the checkpoint I guess, hence why you may need to spell it out & have proof.... As I said though, all quarantine requirements will still apply
 

Tim W

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This post assumes that OP has a Parenting Order in effect.
(if not, then OP can stop reading now, because they have nothing)

@Atticus and @sammy01 are both right - but on the opposite side of the coin to where OP is.
It's not OP who has the "legal duty" to fulfil here.

The provisions to which they refer are phrased to apply to the custodial parent*,
and are intended to prevent that parent using COVID etc to refuse otherwise lawful access*.
Providing that access is a duty - it's a product of a court order.

The Family Court has to necessarily be circumspect - because they lack jurisdiction over state law such as the PublIc Health regime.

A Queensland Border Declaration Pass (General) may be the tool OP wants.
If they can get one.

But I don't see them getting it without doing their 14 days iso.
There's a bit about
"Entering Queensland to comply with or give effect to a Court or Tribunal Order "
That still requires quarantine.

OP can apply for an exemption for truly exceptional circumstances - proof of which lies with OP.
While OP's situation is certainly distressing, we have not yet seen anything that is "exceptional" about it.


-----------------------------------
* please excuse the outdated terminolgy,
but it's what most people understand.
 

Atticus

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6 February 2019
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This post assumes that OP has a Parenting Order in effect.
(if not, then OP can stop reading now, because they have nothing)
Agreed
The provisions to which they refer are phrased to apply to the custodial parent*,
Understand your point, however it's VERY clear both in the act & made clear to all adults subject to a parenting order that ALL have a legal obligation that is created by that order... It does not specify custodial & non custodial (old terms) or lives with & not lives with...

The latest QLD state border restrictions (that the family court refers people with orders should refer to) clearly states that an exemption to non entry applies to those with a legal obligation relating to child access..
 

Tim W

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Agreed

Understand your point, however it's VERY clear both in the act & made clear to all adults subject to a parenting order that ALL have a legal obligation that is created by that order... It does not specify custodial & non custodial (old terms) or lives with & not lives with...

The latest QLD state border restrictions (that the family court refers people with orders should refer to) clearly states that an exemption to non entry applies to those with a legal obligation relating to child access..
The words are above.

It's a question of what lawyers call "construction".
The technical question is whether or not "...give effect to..." also means "...exercise a right..."
as much as it means "comply with a duty".

Thing is, visiting a child is not a duty (what you called a "legal obligation relating to child access").
Rather, It's a right - a right created by the Parenting Order.

The typical methodology of Statutory Construction includes that a court will attempt to avoid reading one order
in such as way as to defeat that operation of another, or to avoid creating rights beyond the scope of the original Order,
and that arise only out of the conflict.
The obvious exception being where there is a safety or welfare question in play
(consider for example, how, in NSW, a Parenting Order (Cth) will not defeat an AVO (state)).

I haven't been watching the day to day enforcement activities on the Queensland side closely enough
to know if there have been any cases yet made it to court, or if nobody's actually been caught yet, or
if the Queensland authorities are simply taking an (atypical) light touch approach.
 

Atticus

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6 February 2019
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Thing is, visiting a child is not a duty (what you called a "legal obligation relating to child access").
Rather, It's a right - a right created by the Parenting Order.
Not sure I agree you are correct .... First of all, it's a fact that parenting orders create a legal obligation, & that obligation is that BOTH parents abide by the orders (under threat of legal action & consequences for non compliance) to facilitate THE CHILD'S Right that is established by the order, ie, living & visitation arrangements as prescribed in that order...

All @Bobby123 wants to do is see his kid/s, now while there are hard restrictions on entering QLD at the moment from a nominated HOTSPOT, the restrictions do make allowances for these things.... Now bobby isn't going to be facing a lawyer or high court judge where he has to argue the interpretations & nuances of particular words, he'll be facing a busy cop at a checkpoint who *should* be up to speed on the exemptions that apply... I Just advise that Bobby has his order & border pass ready to show ....

A better idea again may be that if the primary carer is happy to facilitate the contact as per parenting orders, that S/he drive into NSW & do the changeover there... NSW isn't a declared hotspot (yet) so S/he would have no problem going back into QLD ..... Probably don't even need a parenting order to do that
 

Tim W

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A better idea again may be that if the primary carer is happy to facilitate the contact as per parenting orders, that S/he drive into NSW & do the changeover there... NSW isn't a declared hotspot (yet) so S/he would have no problem going back into QLD ..... Probably don't even need a parenting order to do that
That assumes that both parents act responsibly and sensibly.
It also assumes that the custodial parent is not trying to use COVID as some sort of excuse to not comply with the order.

In the end, I hope OP gets to see his kid(s) too.