The recent COVID-19 pandemic has caused considerable difficulties for separated parents, particularly those living interstate from their children.
Parenting orders are binding on both parties, irrespective of what may be happening in society at large. Accordingly, a parent who breaches a parenting order due to the existence of coronavirus itself may find themselves facing a contravention application, and it is expected that the Court will not look favourably upon those parents if they do not have genuine cause for concern.
A Court order sealed by the Federal Circuit Court of Australia or the Family Court of Australia creates legal obligations with which the parties must abide. If a party breaches or contravenes a Court order, the other party may commence further proceedings by way of a contravention application.
Contravention applications will often result in a remedy or punishment against the breaching party. Contravention proceedings are quasi-criminal in nature and the standard of proof relates directly to the relief the innocent party is seeking to achieve from the application.
A person is taken to have contravened a parenting order if:
- The person is bound by the order and the person has:
- intentionally failed to comply with the order; or
- made no reasonable attempt to comply with the order.
It is a defence to a contravention application if the person is taken to have had a “reasonable excuse” for contravening the order. Pursuant to section 70NAE of the Family Law Act 1975 a person may have a reasonable excuse for contravening a parenting order if:
- the person believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
- the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to above.
The Court is ultimately concerned with meeting the best interests of the child and if there is any risk, even a small one, that the child may be exposed to the virus then the Court may decline to make a finding of contravention.
In the recent decision of Kardos & Harmon  FamCA 328, the Family Court had to consider whether the Mother’s refusal, due to COVID-19 related concerns, to allow her 3 year old child to travel by plane from Adelaide to Queensland to spend time with the Father pursuant to final Orders was a contravention; that is a breach of the Orders without a reasonable excuse.
The child in this case lived with the Mother in Adelaide and pursuant to 2018 Orders, spent regular time with the Father in Brisbane. The Orders required the parents and the child to undertake regular interstate travel and to conduct handovers at the airports.
The arrangements had been without incident until March 2020 when the Mother failed to facilitate the child travelling to Queensland to spend time with the Father pursuant to the Orders. The Father commenced contravention proceedings.
Due to the COVID-19 virus, the Mother proposed that the Father travel to South Australia to spend time with the child, to reduce the child’s exposure to the virus whilst travelling through airports and on-board aircraft.
The Court dismissed the Father’s contravention application and found that the Mother’s concerns for the health of the child were a reasonable excuse for non-compliance with the Orders. Instead the Court took the opportunity to suspend the final Orders and vary them requiring the Father to travel to South Australia to spend time with the child and, if that was not possible, for make-up time at some point in the future.
This recent decision provides some guidance to separated parents with children who are required to travel interstate to spend time with the non-residential parent pursuant to a parenting order. If one parent raises concern about the child’s exposure to COVID-19 whilst in transit, this may be a reasonable excuse to not allow the time to occur pursuant to the Orders.
Each individual case will however turn on its own facts, particularly given that each State and Territory has its own rules and guidelines regarding self-isolation and border crossings.
If you have parenting orders which provide for interstate travel, we strongly recommend you seek legal advice prior to considering any non-compliance with those orders at this time. As restrictions are lifted, any concerns of exposure to the COVID-19 virus and associated health risks will start to ease and it is likely that this will no longer be considered a “reasonable excuse” by the Court for non-compliance with parenting orders.
Recently recognised for the third consecutive year as a leading Family Law firm on the Gold Coast by the Doyle’s Guide, if you have a parenting dispute then we are available to assist you to resolve your matter with as little conflict as possible, aiming to exit the family law system with an outcome that has longevity and the best interests of your children at heart.
Contact our family law team on 07 5526 0157 to discuss your parenting matter or any other aspect of family law. We are available to provide you with cost effective, strategic and resolution focused advice in person or by phone.