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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 an application by a father alleging the mother’s contravention of a parenting order which provided for their three-year-old child to travel from Adelaide to spend time with the father in Darwin and, from January 2020, Brisbane.

The mother did not send the child to the father in March or April 2020 due to her concerns about the COVID-19 pandemic. The mother argued reasonable excuse due to her concern for the child’s health and the border restrictions requiring her and the child to be in self-isolation for 14 days after their return to South Australia.

Having taken judicial notice ([33]) of publications about COVID-19, McClelland DCJ said ([76]):

“Having regard to that…information, I am satisfied that the mother believes ‘on reasonable grounds’ that not allowing the child to spend time with the father…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. … ”

The court added [81] that “had it been necessary to determine [the self-isolation] issue I would have determined it in favour of the mother”. After citing a Canadian case where it was held that “[t]he 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 court said ([117]):

“…[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.”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

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