Children – contravention – parents in COVID-19 List directed to obtain updated medical report – mother had reasonable excuse not to comply with order until release of the updated medical report, but not afterwards

In Pandell & Walburg (No.2) [2020] FCCA 1853 (13 July 2020) Chief Judge Alstergren heard conflicting medical evidence as to a four year old’s risk of contracting COVID-19, the mother withholding the child from time with the father in breach of interim parenting orders.

The mother relied on a medical certificate from a general practitioner that identified the child as “a person at risk of severe disease if he contracts COVID-19” and recommended that the child “socially distance…[including] staying home with…[his] primary carer and not…[attend] visits with his Father” ([19]).

Listed on an urgent basis in the court’s COVID-19 List, the court directed that an updated medical report be obtained from a paediatric clinic, which said the child’s condition was “not currently considered ‘high-risk’ for severe COVID-19 related illness”, that “attending school is safe and that family members and contacts should comply with government implement social distancing recommendations” ([27]).

The court said (from [32]):

“Whilst the initial medical evidence provided…was somewhat vague and required further clarification…, the medical advice provided to the mother was that, as a result of a pre-existing health concern, the child was at greater risk of suffering an adverse reaction to a possible COVID-19 infection. [I] find that the mother, at that stage, had a reasonable basis for not allowing the child to spend time with the father. …[I] find that the mother has a reasonable excuse for contravening the interim orders up until 5 June 2020. (…)

[35] From 5 June 2020 or when the updated report came to the mother’s attention, …there was no reasonable basis for the mother believing that it was necessary to withhold the child from the father, after that date, on health grounds. The mother therefore lacked a reasonable excuse for so withholding the child after 5 June 2020. (…)

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[40] Extensive periods of make-up time with the father would be difficult for the child in this matter, who is 4 years old. However, …it is appropriate that some make-up time should be provided, but not to the extent sought by the father.”

In addition to compensatory time over four weeks, the court extended the father’s time pursuant to the existing interim orders by two hours on a Sunday.

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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