Non compliance with orders due to virus fears

The coronavirus pandemic continues to have impacts across all parts of our lives. Whilst the majority of children in Queensland have now returned to school and things seem to be slowly returning to normal, the State’s borders remain closed.

Whilst the Queensland Government has made an exception to border closures where it is necessary to comply with a court order, its appears from a recent Family Court decision that this exception may not be determinative in and of itself if a parent forms a view that travel would not be in the best interests of a child and a court accepts evidence in support of that position.

Family Court considers contraventions in Kardos and Harmon

In the recent case of Kardos and Harmon [2020] FamCA 328, when asked to consider a father’s contravention application, the Family Court accepted a mother’s argument that she reasonable grounds not to comply with parenting orders owing to health fears. She had declined to facilitate time between a 3 year old child, who lives with her in Adelaide, and the father, who lives in Brisbane. The father applied for contravention orders against the mother when she did not adhere to orders after having expressed fears about the child’s safety in travelling given the current pandemic.

The court heard evidence about COVID-19, that was relied upon by the mother, derived from publications by the World Health Organisation, the Australian Government Department of Health and the South Australian Department of Health. All of these cautioned against travel and discussed risk.

In considering the contravention application the court considered the Family Law Act (especially section 70NAE at subsection 5) which provides that it is a reasonable excuse (for not providing time) if there is a risk of safety to the child. The mother apprehended that there was and the court accepted her arguments, the evidence she relied upon and it declined to penalise her, instead varying the orders.

Although the Family Court found she had a reasonable excuse for not complying with the orders because of issues stemming from the pandemic, it is worth noting that she had been at pains to try to offer alternative arrangements. In parenting matters it is always important to have a child’s best interests at heart which in legal terms includes a child having a meaningful relationship with both parents.

You can read the full judgment by clicking here.

Every case is different – the importance of professional legal advice

There will be over the coming days, weeks and months many more instances where COVID-19 issues arise in a Family Law parenting matter.

Every case is different and it is important that that you obtain professional legal advice if you are uncertain as to how your circumstances may be affected.

Get advice today about the right way to proceed with your family law case. To help you, we offer an initial  consultation and can discuss your case by phone, Skype, Microsoft Teams, Zoom or in person at our office with social distancing protocols in place.

Call us today on 07 5597 3366 or simply fill out the ‘Contact Us’ form below.

 

For more information on this topic please contact Margaret Miller, Partner and Family Lawyer. This article has been prepared by Bell Legal Group for general information purposes only. It is not legal advice and should not be relied upon as such.