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Impact of the Victoria-NSW Border Closure on Interstate Child Access and Care Arrangements

As of 8 July 2020 the Victoria-New South Wales (NSW) border has been officially closed in response to the rising number of COVID-19 cases in Victoria. This decision marked the first border closure between the two states since the Spanish flu outbreak of 1919. The rules in relation to the border closure are contained in the Public Health (COVID-19 Border Control) Amendment Order 2020 (NSW) (‘the Order’). Given the evolving nature of COVID-19, modifications to this legislation have been regularly implemented, the most recent of which occurring on 2 September 2020. For parents and Victorian and NSW family lawyers, it is pertinent to be aware of the effect of this legislation, as well as any recent updates, on interstate child access and care arrangements.

Clause 5(1) of the Order establishes the general position that any person who has been in Victoria in the past 14 days must not enter NSW unless that person is authorised to do so. A person will be considered to be authorised to enter NSW if that person belongs to a class of persons specified in Column 1 of Schedule 1 of the Order, holds an entry permit if required for their class, and complies with all the conditions set out in Column 3 of Schedule 1 for their specific class (cl 5(2)).

In regard to interstate parenting arrangements, cl 9 of Schedule 1 lists ‘persons entering for child access or care arrangements’ as an authorised class. Pursuant to the conditions set out in Columns 2 and 3, to enter NSW for child access or care arrangements an entry permit is required and the person must comply with the relevant COVID-19 Safety Plan at all times or self-isolate. Provided these conditions are met, relocating to NSW from Victoria pursuant to child care orders or visiting a child as part of the access arrangements can continue during the border closure.

Entry permits are issued on behalf of the NSW Government and can be applied for easily online through the Services NSW website. Applicants will need to provide their personal details, contact information, the relevant exemption category to which they belong, a declaration of their COVID-19 exposure and travel in the last 14 days as well as the address they intend to stay in NSW. It should be noted that if a parent is travelling to NSW with their children in accordance with a parenting order issued by the Family Court they will need to apply for separate permits for the children. Legal documents such as parenting court orders may also be required by the Border Control officials.

Upon completion of the online application the applicant will receive an email containing the entry permit from Services NSW. This will be checked at the border when crossing. Whether or not parents and children will need to quarantine upon arrival in NSW will depend on the conditions contained in the permit. The document itself will specify what safety measures need to be taken. Under Column 3 of cl 9 states that persons in this class must comply with the relevant COVID-19 Safety Plan or self-isolate. This would seem to suggest that in most cases compliance with a Safety Plan is all that is required, and there will be no need to isolate or quarantine.

On 7 August 2020 the Order was updated to require certain people entering NSW to enter only via aircraft and to quarantine upon arrival for 14 days. For example, a Victorian education visitor entering NSW under cl 8 of Schedule 1 will be required to travel to NSW via aircraft and land at Sydney Airport. Additionally, on 2 September 2020 the Order was amended to expand the reasons for issuing a compassionate permit to include ‘other exceptional circumstances’.

However, the requirement to only enter via aircraft does not extend to persons entering NSW under the cl 9 exemption. Further, the grounds upon which a compassionate permit can be granted are still quite limited and would not affect those who are relying on a child access or care arrangement exemption.

There does not appear to be anything in the new legislation which alters the previous position that parents entering NSW for the purposes of child access and care arrangements only need to comply with a Safety Plan if this is all that is stated on the entry permit. There will be no blanket requirement for parents entering NSW for the purposes of child access and care arrangements to quarantine upon arrival if this is not specifically stated in the entry permit.

Although further restrictions may be implemented should the case numbers escalate, at this stage under the relevant legislation individuals can still enter NSW for the purposes of child access and care arrangements provided that an entry permit is obtained and the conditions therein are satisfied.

By Nicholes Family Lawyers


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