What does the bubble mean for trans-Tasman parenting arrangements?

Thursday 15 April, 2021

New Zealanders and Australians alike have welcomed the announcement of a trans-Tasman bubble starting from 19 April 2021, but the news may cause complications for separated couples who are parenting across the Tasman. It is not uncommon for one parent to live in New Zealand, with day-to-day care of the children, and the other parent to live in Australia, with the children travelling to visit them during school holidays, or vice versa. 

Since the COVID-19 pandemic hit, most airlines have restricted travel for unaccompanied minors (children under 12), refusing to accept bookings other than for quarantine-free flights. This has meant that children under 12 have been unable to travel to New Zealand without a parent accompanying them, putting a stop to many trans-Tasman shared parenting arrangements. Even parents with shared parenting of teenagers have been reluctant to put them through the ordeal of two weeks in managed isolation.

Now that quarantine-free travel can take place between Australia and New Zealand, many non-custodial parents are eager to resume their normal shared parenting arrangements and have their children travel in the next school holidays. However, some New Zealand-based parents have concerns about their children resuming trans-Tasman travel immediately, as they are worried that their children may get stranded in Australia if the New Zealand government suspends quarantine-free travel. Others are concerned about the risk of their child being exposed to COVID-19 while airlines and airports adjust to the new arrangements.

Can a parent refuse to send their child for the school holidays?

If the parenting arrangements are court-mandated, either as a parenting order or a consent order, parents cannot breach the conditions in the order. If the caregiving parent considers it is not in the best interests of the child to travel to Australia, they should seek to vary the terms of the parenting order as to not find themselves in breach of a court order. If a parent fails to comply with a parenting order, the other parent can apply to the Family Court to have the order enforced.

Whether the Family Court will take action to enforce the order depends on whether it would be in the best interests of the child, weighing up the importance of maintaining the child’s relationship with their non-day-to-day parent against the physical and emotional risks if the bubble is suspended or the child is exposed to COVID-19.  However, the Court encourages parents to try and resolve parenting disputes themselves first, before involving the Court, so parents in this position should see if they can find a compromise. Some parents in this position are choosing to wait and see how well the bubble works first, with a view to children potentially travelling in the next school holidays.

If the parenting arrangements are a private arrangement, neither parent can be forced to comply. However, if one parent unilaterally refuses to comply with a parenting plan, the other parent may seek parenting orders from the Family Court, and the Court may take a refusal to comply with agreed parenting plan into account when making decisions. Even if the parenting plan cannot be enforced through the Family Court, parents should seek advice before refusing to follow it, as it could impact both their shared parenting and their children’s wellbeing.

If you share custody with a parent in Australia and have concerns about your child travelling, our Family Team is already assisting parents in this situation and can help you work this out. Our experts are listed below.