In this article, Partner, Lisa Lahey and Law Graduate, John Hickey outline the recent court decision Xiu v Hodges [2020] FamCA 225 and discuss the Court’s unpreparedness to entertain parents’ efforts to capitalise on the COVID-19 pandemic as a means of circumventing existing orders.
Key issues:
- In Xiu v Hodges [2020] FamCA 225, the mother stopped the father from spending face-to-face time with their child due to risks associated with COVID-19. In response to the matter being brought before the Court by the Independent Children’s Lawyer, the mother sought that existing orders regarding time, communication and parental responsibility be discharged.
- The Court ordered that the child spend make-up time with the father and that the mother make the child available for collection by the father.
- Leave was granted for an application for a recovery order to be made without notice in the event orders for the children’s time with each parent were not complied with moving forward. Her Honour even went as far to direct that the Court’s After Hours Service have access to her contact details so that a recovery order may issue without delay, if necessary.
The parties’ 17-year-old child suffers from autism and a number of health issues, which render high level care necessary. Following a contested final hearing, orders were made for the child to live primarily with the mother and spend time with the father. The mother was dissatisfied with those orders, particularly in relation to orders that the father have sole parental responsibility for medical decisions for the child.
Following declaration of the COVID-19 pandemic, the mother placed a notice on her front door stating that “the child of the house is very vulnerable and very prone to viruses and infections…” and therefore could not leave the house. She refused to make the child available to spend time with the father.
The Independent Children’s Lawyer, who was commended for their diligence in this ever-litigious matter, requested that the matter be listed before the Court due to the mother’s actions in withholding the child. This matter was of particular urgency given the child was to turn 18 later that month and would cease to be subject to the jurisdiction of the Family Court. It was accepted by the Court that there was a significant risk that, if the mother’s actions in withholding the child were not addressed before he turned 18, the child would be “a virtual prisoner of the mother unless or until the father or an authority intervenes”.
The mother sought that all previous orders be discharged, that the child live with her full time during the COVID-19 pandemic, that she have sole parental responsibility for all decisions relating to the child’s health, education and day-to-day care, and that the father communicate with the child by Zoom or telephone. This was identified as an attempt on the part of the mother to oust the entire suite of final orders made in March 2019, relying on Government restrictions as the reason why the child should live solely with her.
The mother submitted that her actions in failing to facilitate the child’s time with the father was necessary, as the father exposed the child to “high risk” by allegedly refusing to observe social distancing, taking the child to his girlfriend’s home via public transport and taking the child to their local Coles supermarket without ensuring the child wears the face masks and gloves, which she provided. The Court was satisfied that the level of care provided by the father, in the face of the COVID-19 pandemic and otherwise, was appropriate.
While her Honour recognised difficulties presented by COVID-19 and the genuine concerns held by many parents for their children during this time, it was held that the mother overreached by refusing to make the child available to be collected by the father in accordance with her obligations under the parties’ parenting order. The Court opined that the mother was relying on an opportunistic and inaccurate understanding of the Government’s directions about COVID-19 as an excuse not to allow the father to spend time with the child and to then seek variations to orders for parental responsibility.
The Court ultimately made an order for the father to spend time with the child, including make-up time for the time they had missed together. Her Honour specifically addressed that if the mother did not facilitate the child spending time with the father in accordance with the orders, a recovery order would issue for the police to collect the child and deliver him to the father.
This case is an example of the Court’s unpreparedness to entertain parents’ efforts to capitalise on the COVID-19 pandemic as a means of circumventing existing orders. While consideration is appropriately given to the individual circumstances of a matter, it is important that parents not lose sight of their obligation to comply with orders issued by the Court. The COVID-19 pandemic and associated issues, which we are currently facing, do not of itself render existing orders obsolete, nor will it automatically lend support to a parent’s application to the Court to do away with existing orders.
If you have any queries about enforceability or operation of parenting orders, our Family and Relationship Law team are well placed to consider your individual circumstances and provide advice in relation to options available if you.