Is COVID-19 a reasonable excuse for a Contravention of Parenting Orders?

By Georgia Briggs  

The recent decision in the matter of Kardos & Harmon [2020] FamCA 328 directly addressed the approach to be taken by the courts in relation to parenting matters during the COVID-19 pandemic.

The Judgment of Deputy Chief Justice McLelland further advances the Family Court and Federal Circuit Court’s joint media statement on 26 March 2020 regarding COVID-19. In that media statement Chief Justice the Hon Will Alstergren stated that absent specific and direct reasons for coronavirus to be a concern for parties (such as overseas travel or exposure) parenting orders between parties should be complied with.

A brief overview of the facts of Kardos and Harmon are:

  • Final orders were made between the parties on 2018 whereby the child will spend time with the Father once a month.

  • The Mother lives in Adelaide with the child and the Father lives in Brisbane.

  • In April 2020, the Father filed a Contravention application after the child had not spent time with him in accordance with the Orders.

  • The Mother stated that the reason for this was due to COVID-19 travel restrictions, particularly in South Australia, and the 14 day quarantine period associated with any travel.
     
  • The Court determined to amend the Orders for a period of 6 months whereby the Father is to travel to Adelaide to spend time with the child, so that the child does not need to travel. The Father travel would of course be subject to and in accordance with any Government rules and regulations regarding same.
  • Make up time was also ordered on a fortnightly basis until the missed time between Father and child was caught up.

His Honour noted that:

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.” (At 117)

For reasons which I have set out, I am satisfied that the mother would have difficulty in ensuring appropriate social distancing, as recommended by the WHO and Commonwealth, State and Territory health authorities, in the event that she is required to travel to Brisbane with the child. The guidelines issued by the Commonwealth Department of Health, to which I have referred, confirm that risk on-board an aircraft would extend to being exposed to persons, carrying the virus, sitting in the same aisle as the child and, also to such persons sitting in the two (2) rows in front and behind the child.” (At 118)

“The possibility of harm needs to be assessed in the context of the consequence to the child if that harmful event did occur. In that context, I am satisfied that the child being exposed to the COVID-19 virus may have catastrophic consequences for the child.” (At 120)

If you have any questions or concerns regarding COVID-19 and its impact on Court Orders relating to parenting, please contact our office.