We’re seeing cases start to come through the family court system now concerning parenting disputes directly relating to the COVID-19 pandemic, with contravention applications being filed over non-compliance with court parenting orders. The outcome of one such recent case, pseudonymised as Kardos & Harmon, could be helpful in understanding how the court system views the behaviour of parents during this extraordinary time. And the case may give parents pause if they are considering bringing court action against a non-complying parent during this time.
This case involves a young separated couple sharing custody of a three year old child. The child lives with the mother in Adelaide and as per court orders made in 2018, had been spending regular time with the father in Brisbane. The orders required the parents and the child all making regular interstate travel to conduct handovers at airports.
Until this year, things had been progressing smoothly. But since COVID-19, the arrangements have been in disarray. After the mother failed to facilitate the child travelling to Queensland to spend court-ordered time with the father during March and April, the father lodged an urgent contravention application with the courts.
However, the father’s contravention application was dismissed, with the court finding the mother had a reasonable excuse for not complying with the orders. Instead, the court took the opportunity to suspend the 2018 orders and vary them, requiring the father to travel to the child in Adelaide instead and if that were not possible, to be afforded “makeup time” with the child later down the track.
Parenting Orders: Contravention applications
Where there are court orders in place in parenting matters, the orders need to be followed and if this doesn’t happen, a party can apply to the court to intervene and impose penalties on the contravening parent. Penalties for contraventions a court deems to fall in the “more serious” category include community service orders, having a contravening party enter a bond, imposing fines on a contravening party, and even imposing a jail term.
In their defence, however, a contravening party can argue that they had a “reasonable excuse” for their non-compliance. The Family Law Act contains a provision (in section 70NAE(5)) whereby a parent can maintain they reasonably believed it was necessary not to comply with orders in order to “protect the health and safety” of the child.
And that’s what happened in this case. The mother was able to successfully argue that she had been unwilling to take the child on an aircraft and through airports due to her concerns over the COVID-19 pandemic.
In fact, the mother’s concerns were twofold: firstly, and most importantly, the mother had genuine, reasonable concerns over the risk to the child’s health and safety caused by potential exposure to the coronavirus if the child had to maintain the ordered interstate travel. Secondly, there was a great deal of confusion between the parents over the legality of cross-border travel restrictions that state governments have put in place. The mother believed handover of children did not constitute “essential travel” and moreover she feared that having to self-isolate for two weeks after travel could also put her employment in jeopardy. On the other hand, the father argued that border restrictions didn’t apply where court orders were in place, and that in any case the mother and child could still travel on “compassionate grounds”.
Informed by public notices issued by the federal and state government health departments, the court disagreed with his argument but in any case ultimately found that that the health and safety concerns for the child overwhelmed all other considerations. And it found that the father and his legal representatives had focused on the issue of cross-border travel restrictions but had “failed to adequately address the very real concerns that the mother had voiced in respect to the child’s health in the context of the current COVID-19 pandemic”.
While the father argued there was only a “low risk” to the child, the court said “his opinion is not supported by expert evidence”. Instead, the court agreed with the mother that it would expose the child to health risks if the child were to travel interstate by aircraft, surrounded by large numbers of people.
What can we take away from this case?
The courts have the difficult task in these matters of balancing the need for children to maintain a meaningful relationship with each parent, against the risks associated with the pandemic. What the courts will seek to do is mitigate the risks to the child—in this case, by removing the need for the child to make interstate flights and instead, agreeing with the mother that the father could travel to spend time with the child in Adelaide instead.
“The mother has clearly indicated that, during the period of the COVID-19 pandemic, she is happy for the child to spend time with the father in Adelaide….In terms of the child spending time with the father in the future, the mother has specifically stated that she otherwise is happy to facilitate the child spending time with the father if arrangements can be made to ensure the health and safety of the child. That position is one which is entirely reasonable and, further, it is one that the Court encourages.”
On that basis, the court varied the orders for a period of six months to facilitate the father spending time with the child in Adelaide instead during the pandemic. And if this was impractical for the father, the orders provided for makeup time with the child in the future.
Compliance with parenting orders during the pandemic can certainly be difficult, but if your co-parent breaches orders, rather than head straight to court to file a contravention application, consider whether it may be wiser to come to an agreement with them to temporarily vary the parenting orders. Apart from reducing hostility and saving money, the simple fact is: your co-parent may well succeed with a “reasonable excuse” argument based on concerns over your child’s health and safety.
You can find the case here, if you wish to read it in full.
If you need assistance with a parenting matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law, on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.