COVID-19 has impacted almost every area of our lives, including parenting arrangements. In this post, we will be discussing the case of Kardos & Harmon  FamCA 328 (7 May 2020) to see how the Family Court has decided on contraventions of parenting orders during this global health crisis.
Kardos & Harmon  FamCA 328 (7 May 2020)
The father brought proceedings against the mother alleging contravention of Orders made in December 2018 regarding parenting arrangements for their child. The order allowed the father to spend the last week of every month with the child and allowed for the child to be transported interstate to spend time with the father. The Orders stipulated that the child be transported to Darwin Airport or alternatively Brisbane Airport when the father had provided the mother with written notice 90 days prior.
As the Covid-19 situation unfolded in Australia, the mother contacted the father to raise her concerns about the outbreak for the child’s safety and suggested to the father that he travel to Adelaide to reduce the child’s exposure to the virus from travelling by plane.
On 22 March 2020, a Major Emergency was declared in South Australia because of the Covid-19 outbreak and soon after cross-border travel was restricted. The mother did not facilitate the travel in March and April due to concerns over the child possibly contracting the virus and uncertainty with state guidelines for travel.
Soon after, the father brought proceedings in the Family Court for alleged breach of the Orders by the mother for failing to transport the child to Brisbane Airport as set out in the Orders.
The Court considered whether the mother had breached the Orders. The Court decided on a strict reading of the Orders and found the mother did not breach the Orders because the father did not provide the mother with 90 days’ notice. Since notice was not provided to the mother, technically there was no breach in the orders and the mother was not required to transport the child to Brisbane airport in the first place.
The Court then considered in the hypothetical event there was a contravention of the orders, whether the mother had a reasonable excuse for non-compliance with the orders.
The Court considered section 70NAE (5) of the Family Law Act. In summary this section allows a person to breach the Order to the extent that it is necessary to protect the health or safety of a person or the child.
It was clear that communications sent by the mother expressed a concern for the health of the child and that section 70NAE could be applied. Even with the Covid-19 pandemic the Court considered that the child ought to have a meaningful relationship with both parents. However, the Court’s position remains that the child’s best interest is the paramount consideration.
The Court concluded that the risk was unacceptable for the child, such that a person in the mother’s situation would be reasonably excused for breaching Final Orders.
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