In response to the COVID-19 pandemic, Australian State and Territory governments have established a set of border restrictions to protect their residents. As a result, families who have Court Orders in place for shared parenting arrangements, particularly where one parent or carer resides in another State or Territory, are left to their own devices to interpret the Court Orders to avoid any compliance issues.
In this article, we take a closer look at the case Kardos & Harmon  FamCA 32 (7 May 2020) (“Kardos & Harmon”) to provide some guidance on complying with parenting orders during the COVID-19 pandemic.
In the recent case of Kardos & Harmon, the Father issued Court proceedings on 30 April 2020 alleging that the Mother contravened the Parentings Orders made on 5 December 2018 (“the Final Orders”).
The Final Orders provide that the parties’ three (3) year old child spend time with the Father for four (4) days per month and to facilitate that time, the Mother is to deliver the child to the Father at Darwin Airport or, provided that the Father gives the Mother 90 days written notice should he wish to spend time with the child in Queensland, to Brisbane Airport. The Father is then required to return the child to the Mother at Adelaide Airport at the conclusion of his time.
When the Father issued Contravention proceedings, the child was living with the Mother in Adelaide and the Father was living in Brisbane, after relocating from the Northern Territory in January 2020.
The Father was refused time with the child for the months of March 2020 and April 2020. The Father submitted that the Mother had no reasonable excuse to cease his time with the child for two months.
The Mother submitted that she did have a reasonable excuse to cease the Father’s time with the child due to her concerns for the child’s health amid the COVID-19 pandemic and due to the border restrictions in South Australia which required any resident returning to South Australia to self-isolate for a period of 14 days.
THE FAMILY LAW ACT 1975 (CTH)
According to the Family Law Act 1975 (Cth), a party that alleges a contravention must successfully establish that a contravention occurred on the balance of probabilities. The alleged parent contravening must establish that he or she had a “reasonable excuse” for contravening the Court orders. If a contravention is successfully established, the contravening party may face serious consequences at the Court’s discretion.
APPLICATION OF THE LAW
In this case, it was found that the Mother did not contravene the parenting orders because the Father failed to meet the precondition to spend time with the child in Queensland, that is, the Father did not provide the Mother with “at least 90 days prior written notice to the Mother” in accordance with the Parenting Orders. Therefore, there was no contravention established.
Nonetheless, even if the Father established a contravention, for example had he given the 90 days notice, the Court was still satisfied that the Mother had established a reasonable excuse for not allowing the child to spend time with the Father for the months of March 2020 and April 2020, as it was necessary to protect the health and safety of the child during the COVID-19 pandemic.
The factors that weighed in favour of the Mother was her written communication with the Father which, in summary, outlined the following:
- Her main concern was the child’s health and safety;
- Her proposal for the Father to spend time with the child in Adelaide;
- Her willingness to pay for the Father’s flight to Adelaide, provide him with a car seat and toys for the child; and
- Her willingness for the Father to have make-up time with the child if he could not spend time with the child in Adelaide due to his work obligations.
It should also be noted that the Mother facilitated frequent FaceTime calls between the child and the Father and that the Court was mindful any travel with the child to Queensland would cause the Mother financial hardship due to her employment, low income and the fact that her employer denied her leave for the months of March 2020 and April 2020.
The Court also referred to publicly available information with respect to the COVID-19 pandemic to assist with this case. This included the “Coronavirus Disease 2019 (COVID-19) CDNA National Guidelines for public health units” issued by the Australian Government Department of Health (as at 1 May 2020) which defined a “close contact” to include “aircraft passengers who [are] seated in the same row as the case, or in the two rows in front or two rows behind a confirmed or probably COVID-19 case.”
Similarly, the Court referred to the “Latest Updates on COVID-19” on the South Australian Department of Health website at the time which stated that from the period of 10 March 2020 until 8 April 2020, there were 68 flights to or from Adelaide and other locations within Australia with “confirmed cases of COVID-19.”
The Court concluded that the Mother “would not have been able to maintain safe and social distancing during the period of the aircraft travel and there was an unacceptable risk that the child would come into close contact with a person infected by the virus.” Further, the Court determined that the cross-border travel restrictions are a “secondary consideration” to the health and safety of a child travelling interstate by airplane.
With respect to the general interrelationship between COVID-19 pandemic and Parenting Orders, the Court in this case found that Orders in relation to children are “intended to operate in the context of the restrictions and sanctions imposed by State and Territory governments, including those imposed for the protection of the broader community.”
If you would like advice on your Family Law matter and want to “know where you stand” please contact one of our lawyers at Pearsons Lawyers for your free consultation on 1300 699 688.
(1) Kardos & Harmon  FamCA 32. Link at http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2020/328.html
(3) Kardos & Harmon, para 27.
(5) Kardos & Harmon Para 76.
(6) Kardos & Harmon Para 126.
(7) Kardos & Harmon Para 88.