COVID-19 travel restrictions and social distancing orders have affected families across Australia. Particularly, for families with court-issued parenting orders requiring travel, it may not be reasonably practicable to follow these orders during this time. However, unless the contravention of an order falls under the ‘reasonable excuse’ definition in section 70NAE Family Law Act 1975, serious sanctions may be imposed against the parent. As this section is primarily concerned with protecting the child or parent’s health and safety, the parent must reasonably believe the contravention was necessary to provide protection.
This was the central feature of Kardos & Harmon , where a mother contravened an order requiring her to travel interstate to bring the child to the father during the pandemic. The Court held the mother’s concerns for the child’s health and effect of border restrictions, which would require herself and the child to self-isolate for two weeks, constituted a reasonable excuse under section 70NAE(4)(a–b). This decision was influenced by Riberio & Wright  at , which noted that the health, safety and well-being of children and families is the most important consideration during COVID-19. Therefore, the court will balance the importance of a child receiving emotional support of both parents, and mitigating risks of the child coming into contact with the virus.
However, the decision in Pandell & Walburg (No. 2)  illustrates a situation where the mother had evidence that the child’s pre-existing health concern increased their risk of adverse reaction, should they contract COVID-19. This constituted a reasonable excuse to disallow the child to spend time with the father, breaching court orders. However, once updated evidence provided that the child was not at a greater risk, the mother no longer had reasonable excuse to breach the orders. This case demonstrates how a family’s individual circumstances play a very influential role in determining whether a reasonable excuse exists.
Therefore, if COVID-19 restrictions are preventing you from complying with your parenting orders, you must ensure you have a ‘reasonable excuse’ to do so, based upon your individual situation.
Our specialist law team at Sanicki Lawyers can consider your personal circumstances and advise you on whether you have a reasonable excuse for contravening your court orders.
Critically, a contravention application by an unhappy parent may still be dismissed by the Court – even in cases of a breach of Orders – should the application be ‘petty and unwarranted’, as in Adam & Tan (2019). In this case, the mother’s contravention effected from genuine miscommunication, resulting in a mistake. The application was dismissed because the mother had taken steps to remedy the situation once becoming aware of it.
If you are concerned about complying with family law parenting Orders because of Covid-19, or if the other parent of your child (or children) are breaching parenting Orders due to Covid-19, then contact Stephanie Hope, Senior Associate Family Lawyer and Head of Family Law at Sanicki Lawyers for legal advice and representation today, by calling 03 9510 8999, or emailing email@example.com.