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Children – Contravention – COVID-19 – Reasonable excuse – Variation of primary order

In Kardos & Harmon [2020] FamCA 328 (7 May 2020) McClelland DCJ heard a contravention application by a father in relation to a parenting order made in 2018 which provided for a three year old child to spend four days per month with the father. The mother was to deliver the child to the father at Darwin Airport or, if 90 days’ written notice were given to the mother, Brisbane Airport. The father was to return the child to the mother at Adelaide Airport at the end of his time. The mother and child lived in Adelaide. The father lived in the Northern Territory and relocated to Brisbane in January 2020. At that time he notified the mother of his relocation and the parties agreed that in March and April 2020 the child would spend time with him in Brisbane.

The child did not spend time with the father in March or April 2020 due to the mother’s concerns associated with the COVID-19 pandemic. The father argued that the mother had no reasonable excuse for failing to deliver the child to Brisbane. The mother said that due to her concern for the child’s health and the effect of border restrictions which, according to the mother, would require her and the child to remain in self-isolation for 14 days after their return to South Australia, she had a reasonable excuse.

The Court held ([54]) that the father had not discharged his onus of proving that he had provided 90 days’ written notice requiring the mother to deliver the child to Brisbane. Having taken judicial notice ([33]) of a number of publicly available documents in relation to COVID-19, the Court considered whether the mother had a reasonable excuse for contravening the 2018 order.

McClelland DCJ said (from [66]):

“I … accept that the restrictions imposed by the Queensland Government to restrict cross-border movements of persons into that State, during the period of the COVID -19 pandemic, do not restrict the mother from travelling with the child from Adelaide to Brisbane in order for the child to spend time with the father. However, that finding does not displace the mother’s concerns that clearly relate to the health of the child.

( … )

[76] Having regard to that publicly available information, I am satisfied that the mother believes ‘on reasonable grounds’ that not allowing the child to spend time with the father, on the dates which are the subject of the Contravention Application, was necessary to protect the health of the child and the mother. This is because the mother would not have been able to maintain safe 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 during the course of the aircraft travel. …

[77] In terms of the broader operation of s 70NAE(5)(b) of the Family Law Act, it was also contended, by the mother, that the border restrictions imposed by the South Australian Government would require both the mother and the child to self-quarantine for a period of 14 days after their return from Brisbane to Adelaide.

( … )

[81] … [I]t has been unnecessary for me to determine this issue in light of the finding that I have made that the mother has a reasonable excuse for not having delivered the child to the father in the months of March and April 2020 as result of the reasonable concerns she has for the child’s health. However, had it been necessary to determine this issue, I would have determined it in favour of the mother … ”

The mother sought variation of the 2018 order to enable the child to spend time with the father in Adelaide and for compensatory time to occur in Adelaide. The father sought that the order be varied to enable the child to spend a longer period each month with him in Brisbane to make up for any time lost.

The Court continued (from [113]):

“A useful discussion of risk in the context of the Court balancing the two primary considerations of the child having a meaningful relationship with both parents as against risks associated with the current COVID-19 pandemic is set out in the Canadian Family Court of the Superior Court of Justice in the matter of Ribeiro & Wright 2020 ONSC 1829; [2020] CarswellOnt 4090. In that decision, Pazaratz J noted, at [6] that, as is the case in Australia, ‘the health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19’.

[114] His Honour further noted, at [8], that, as in Australia, ‘directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible’.

[115] His Honour stated at [10] that, while many aspects of our social interactions will be placed on hold as a result of the directives from government, ‘children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset’. His Honour observed that, unless circumstances dictated otherwise, in these ‘troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever’ and that ‘a blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child’.

[116] His Honour, at [17], noted that each family will have its own unique issues and complications, and, at [21], each case will have to be determined on a case-by-case basis. In considering concerns raised in respect to the impact of the current COVID-19 pandemic, Pazaratz J, at [21], held that:

‘The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols.

The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.’

[117] That approach is one that is of assistance in this case. …[D]espite 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.”

The contravention application was dismissed and the 2018 order was varied to facilitate the father spending the ordered time with the child in Adelaide and, if that were not possible, the child to spend compensatory time in Adelaide with the father.


Editor’s note – Our “Latest Notable Cases” this month contained six more case notes with summaries of the following:

Property – Husband wins appeal against summary dismissal of his application to set aside consent property order – Denial of procedural fairness and natural justice – Case decided on issues not raised in hearing – Husband not given opportunity to be heard on matters relevant to trial judge’s decision

Procedure – Interim costs – Litigation funding sought by husband from wife and wife’s mother (second respondent)

Property – Forum non conveniens – Wife restrained from continuing her proceedings in Singapore – Stay of husband’s later proceedings in Australia (sought by wife) refused – Enforceability of an order relevant where most assets were in Australia

Procedure – Conflict of interest – Restraint on solicitor acting – Breach of confidence – Duty of loyalty – Solicitor potential witness in proceedings – Effect of delay in bringing application

Procedure – Application to discharge referral to arbitration – Allegations of significant family violence – Withdrawal of consent to arbitration – Non arbitrable disputes – Arbitration ordered to proceed by video

Property – De facto relationship – Section 4AA(2) of the Family Law Act – Mutual commitment to a shared life – Duration of relationship (aggregation of times together)