Family Law Courts have recently had to determine whether parents have contravened parenting orders during the COVID-19 pandemic by not making children available to spend time with the other parent, and if they did, whether there was a reasonable excuse.
Under the Family Law Act 1975 (Cth) a contravention can occur if a person intentionally fails or makes no reasonable attempt to comply with an order. However, if the contravention was necessary to protect the health or safety of a person and the period of the contravention was not longer than was necessary to do that, the person breaching the order may have a reasonable excuse.
In Kardos & Harmon  FamCA 328, the Father lived in Brisbane and the Mother and 3-year-old child lived in Adelaide with the Mother’s parents. The Mother was concerned for the health of the child and her family, the impact of cross-border restrictions and interstate travel.
The Court dismissed the Father’s application as the Father was not able to establish a contravention however still considered whether the Mother had a reasonable excuse for not complying with the order, if there was a contravention. The Court determined Queensland’s cross-border travel restrictions did not prevent the Mother and child from travelling from Adelaide to Brisbane. However, the Mother’s actions were necessary to protect the health of herself and the child as they would not have been able to maintain safe social distancing while flying and there was an unacceptable risk of the child coming into close contact with a person infected by the virus, which could be catastrophic.
The Court clarified a parenting order is to “…operate in the context of the restrictions and sanctions imposed…” and “…despite the existence of the COVID-19 pandemic, it is important that all reasonable efforts are made for children to spend time with both parents consistent with taking a responsible approach in respect to mitigating against risks associated with the presence of the COVID-19 virus in the community and, specifically, the child coming into close contact with a carrier of the virus.”
Whether a parent had a reasonable excuse for contravening a parenting order was also considered by Chief Judge Alstergren in Pandell & Walburg (No.2)  FCCA 1853. In that case there was no dispute the Mother had contravened parenting orders by not making the 4-year-old child available to spend time with his Father since late-March 2020. The Court had to determine whether there was a reasonable excuse for the contravention as the Mother had obtained advice from the child’s treating doctor that due to the child’s medical condition he was at risk and should remain isolated at home with the primary parent (the Mother).
Before the Court decided the matter an updated specialist medical report was ordered. That report essentially set out the child was not at high risk. The Mother continued to withhold the child following the issue of that report.
In this case the Court determined the Mother had a reasonable excuse for the contraventions until the date the specialist report was issued, however from that date she did not. To address the contravention the Court ordered the child spend some make-up time with the Father and varied the existing parenting order by increasing the time the child spends with the Father until the matter returns to the Court for Hearing in August 2020.
It is vital you obtain legal advice from a family lawyer if you are contemplating not complying with a parenting order or parenting plan. Our family law team at Rostron Carlyle Rojas Lawyers are here to help you navigate this unprecedented situation and answer any queries you might have.
Please contact us on (07) 3009 8444 or the following email addresses:
Tuskeen Jacobs, Partner & Accredited Family Law Specialist – [email protected]
Renee Kinman, Senior Associate & Accredited Family Law Specialist – [email protected]
Alana Pointon, Lawyer – [email protected]