Contravention applications during COVID-19

Family Law 26 June 2020

As we are all aware, the COVID-19 pandemic has created a great deal of stress and uncertainly for families in many different ways.

It is, therefore, unsurprising that the pandemic may have impacted your parenting arrangements, particularly in relation to children moving between households. There can be a great deal confusion about whether children can or should transition between households during the pandemic, particularly due to the restrictions imposed by the State and Territory Governments.

What is best for my child?

As a result of the pandemic you may have asked yourself questions such as: what is best for my child’s health and wellbeing? Should I allow my child to visit their other parent interstate?  Will I contravene my parenting orders or parenting agreement if I keep my child home?

For you and many other parents, navigating the State and Territory Guidelines and balancing your obligations pursuant to parenting orders or a parenting agreement can be confusing and tricky work.

A recent case perspective: Kardos & Harmon

Recently, in the case of Kardos & Harmon, the Family Court was asked to decide if a mother had breached parenting orders by refusing to deliver her three year old son interstate to his father due to pandemic related concerns.  Here, the child lived with his mother in Adelaide and spent time with his father in Darwin or Brisbane in the last week of every month. The parenting orders required the mother to fly to Darwin with the child on a Thursday, and the father to return the child to Adelaide the following Sunday.  Importantly, the parenting orders also required the father to give the mother 90 days’ written notice if he sought to spend time with the child in Brisbane instead of Darwin.

Did the mother contravene her parenting orders in Kardos & Harmon?

During the pandemic, the mother did not deliver the child to the father, due to her concerns that the child would be exposed to COVID-19 whilst traveling through the airports and whilst on the plane. As a result, the father issued a convention application, alleging that the mother had breached the parenting orders by not allowing the child to travel interstate to Brisbane.

The Court found that the mother had not breached the parenting orders, as the father had not provided the required 90 days’ notice of his intention to spend time with the child in Brisbane.

However, the Court also considered a hypothetical situation (if the father had provided the notice) of whether the mother’s refusal would have resulted in a contravention of the parenting orders.

In determining this issue, the Court considered whether there was a reasonable excuse for contravening the parenting orders and if the contravention was necessary to protect the health or safety of the mother and child. The Court also considered the time frame of the breach and whether or not it was extended unnecessarily in order to protect the health and safety of the mother and child.

The Court found that the mother’s concerns for the health and safely of the child, by not allowing the child to travel by plane to Brisbane, was a reasonable excuse.  The Court came to this conclusion as the mother would have been unable to maintain appropriate social distancing on the plane, and there was an unacceptable risk that the child would come in contact with a person infected with COVID-19 on the plane or in the airport.  The Court also found that the mother would have experienced financial hardship if the travel occurred, as the mother would have been prevented from working for 14 days whilst self-isolated after delivering the child to Brisbane.

Does this mean that any COVID-19 related concern will provide a reasonable excuse to contravene my parenting orders? 

The short answer is, no.

In Biondi & Koen, the mother sought to suspend her child’s overnight visits with their father, due to her concerns that the father was not adhering to appropriate social distancing measures; that the child would be more likely to contract COVID-19 in his care; and that she would be unable to afford any resulting medical bills if the child contracted COVID-19.

In this case, the Court found that the mother’s fear that the child may contract COVID-19 whilst in the father’s care was genuine, in that the mother was being truthful in expressing her fears and concerns, however, the fear was held to be unreasonable, and that it held that it was in the child’s best interests to continue spending time with the father in accordance with the parenting orders.

What do these recent Court decisions mean for my parenting arrangements?

These two decisions shed light on what the Court may and may not consider to be reasonable excuses for contravening parenting orders in the current COVID-19 climate.

If you are worried about the impact of COVID-19 on your parenting orders, or if you require advice regarding a potential parenting order contravention, please contact our team of Family Law specialists as soon as possible so that we can provide you with advice as to how to best move forward.  It is important to obtain this advice, before taking any steps that may contravene parenting orders, if possible.

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