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Family law: A precedent for unprecedented times

Family law: A precedent for unprecedented times

By Radu Catrina

COVID-19 Family Court Parents 

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How the Family Law Courts have treated the continued operation of, and frequent non-compliance with, parenting orders in the wake of COVID-19.

Snapshot
  • The Family Courts have dealt with a recent influx of contravention applications in light of the COVID-19 pandemic and consequent movement and travel restrictions.
  • The Courts have shown lenience. However, successful cases have relied on specific evidence rather than broad or general concerns.
  • Parties need to carefully consider why they seek to suspend time, whether their actions are reasonable and the effect of declining COVID-19 case numbers and easing of restrictions.

The applicable law

The purpose of punishment in family law proceedings is not, unlike in civil proceedings, for the primary goal of upholding the Court’s authority, but rather enforcing the expectations that parties will obey orders made and that sanctions will be imposed if this does not occur.

Part VII Division 13A of the Family Law Act 1975 (Cth) (Act) deals with the consequences of a failure to comply with orders affecting children and pursuant to the major amendments to the Act which occurred in 2006,2 now supersedes the general enforcement powers contained in Part XIIA. 

Pursuant to Subdivisions B-F, a court exercising jurisdiction pursuant to the Act is imbued with powers that are broad and substantial, ranging from those designed to be educational or restorative in nature, to outright punitive. For example, a contravening party might be ordered to attend a parenting course, or the non-contravening party may be awarded compensatory time with a child, but in instances of subsequent or more serious breaches, the court may order the payment of a fine, the imposition of a community service order or a term of imprisonment for up to 12 months.

The meaning of ‘contravened’

Pursuant to s70NAC of the Act, the term “contravened” is defined widely and includes a person intentionally failing to comply with an order, failing to make a reasonable attempt to comply with an order, intentionally preventing another person’s compliance, or aiding or abetting in another person’s contravention. 

Parenting orders, even where there might be ambiguity as to their express obligations, impose implicit, positive obligations on the party with whom a child is living to take reasonable steps to comply. These include making a child available to the other party at the commencement of their time and making an effort to genuinely ensure compliance with the order and encourage a child to spend time with the other party.

In a statement issued earlier this year by Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia His Honour Alstergren, the Court made clear that despite the highly unusual circumstances of the COVID-19 pandemic, parties were “expected to comply with Court orders in relation to parenting arrangements”.4 Parties were encouraged to first attempt to communicate with each other and find a practical solution,5 but the Court’s expectation was nonetheless that “at all times, parents or carers must act reasonably”.

A ‘reasonable excuse’

A party may “defend” non-compliance with parenting orders where they have a “reasonable excuse” to do so. Section 70NAE of the Act explores the term, although the provision is not exhaustive in its scope. There is a broad range of circumstances in which reasonable excuse can be made out, but most relevant to the cases discussed in this article and the times that we presently find ourselves in, are sub-ss(4)-(7). These provide that reasonable excuse is established where the respondent believes on reasonable grounds that the contravention was necessary to protect the health or safety of a party (including the contravening party or a child). 

Recent cases

Three recent cases illuminate the approach(es) adopted by the Family Law Courts when considering these issues. In examining these cases, it is important to remain cognisant of the fact that border closures did not axiomatically render the implementation of orders which required interstate travel, for the purposes of a child spending time with a party, impossible. As the pandemic escalated, state governments quickly issued public health orders creating exemptions for parties to travel for the purpose of fulfilling legal obligations or to give effect to a court order.

Kardos & Harmon

Kardos & Harmon7 concerned an application filed by Mr Kardos, the father, alleging that Ms Harmon, the mother, contravened final orders made by the Federal Circuit Court of Australia in 2018. The final orders provided that their child was to live with the mother in Adelaide and spend four days per month with the father. 

The facts are briefly summarised as follows: 

  • pursuant to the final orders, the mother was required to either deliver the child to the father at Darwin airport or, if provided with 90 days written notice, to Brisbane airport 
  • on 21 March 2020, the mother contacted the father and suggested that he travel
  • to Adelaide to spend time with the child in order to reduce the child's exposure to the COVID-19 virus while travelling through airports and on board a plane – the father was living in Brisbane at the time
  • there was correspondence between the parties over the next few weeks as to proposed alternative arrangements but, ultimately, the mother did not travel in either March or April 2020 to effect changeover of the child to the father. 

The father’s case was unsuccessful on a technical point. The Court held that the father had failed to establish a breach by the mother because there was no evidence that he had given her the 90 days’ written notice required for changeover to occur at Brisbane airport. 

The Court, however, took the examination further. It determined that even if the appropriate notice had been provided by the father, the mother would nonetheless have had reasonable excuse for her non-compliance with the final orders. 

Taking judicial notice pursuant to s144 of the Evidence Act 1995 (Cth), the Court had regard to a document titled “Coronavirus disease (COVID-19) advice for the public”, published by the World Health Organisation (WHO) earlier in the year, which provided, among other things, that during the pandemic people should stand at least one metre apart from each other and avoid going to crowded places. The Court considered that the principles underpinning the WHO document were reflected in the public health notices and orders issued by state governments in Australia. The Court also considered available public information as to the number of confirmed or probable COVID-19 cases in Adelaide and Brisbane.

Ultimately, the Court held that the mother’s non-compliance was founded on reasonable grounds because of her inability to maintain safe social distancing during the period of necessary aircraft travel. That inability would have posed an unacceptable risk that the child might have come into close proximity with a person infected by the virus. 

One further point that bolstered the mother’s case arose due to the South Australian government’s requirement for any returning traveller to self-quarantine for a period of 14 days. The mother was a casual worker who only worked 3.5 days per week, did not accrue leave entitlements and whose employer refused to grant her 14 days off work in both March and April 2020 when she made those requests. The Court found that the requirements to self-quarantine would have caused financial hardship to the mother, including the real possibility that she could have lost her job, and so these would have also been grounds to establish reasonable excuse. 

Although not emphasised in some analyses of the case, it is also important to note that the Court had favourable regard to the mother facilitating additional time between the child and the father on FaceTime and attempting to facilitate the father spending time with the child in Adelaide.

Pandell & Walburg (No 2)

In Pandell & Warburg (No 2)8 the father, Mr Pandell, brought an urgent application into the newly-established COVID-19 List, which was established by the Family Law Courts in late April to deal exclusively with urgent disputes that had arisen as a result of the pandemic. 

The facts are summarised as follows: 

  • on 1 March 2019 the Court made interim orders that the child live with the mother and spend time with the father each week on Thursday evening and for several hours on Sunday. The father’s time was later increased pursuant to further interim orders made on 24 October 2019
  • as COVID-19 cases began occurring in Victoria in March 2020, the mother failed to facilitate the child spending time with the father. She maintained that she had a reasonable excuse for doing so, namely as a result of the child’s specific health condition (which was not disclosed by the Court) that the immune suppressant nature of the treatment the child received for that condition made him more likely to be severely affected by the virus, and that the child spending time with the father would pose a health risk to the child
  • the father last spent time with the child on 22 March 2020, before the matter returned before the Court on 29 June 2020. 

Medical evidence obtained by the parties on 26 March 2020 provided that due to the child’s condition, he was at severe risk if he contracted COVID-19 and it was recommended that he remain in social isolation with the mother. The same medical clinic would issue an updated report on 5 June 2020, which differed from the previous report, stating that children with that condition were no longer considered “high-risk” and that they could safely attend school and interact with family provided that social distancing was adhered to. 

There was no question that the mother had contravened both sets of interim orders made in 2019; however, the question for the Court was whether she had a reasonable basis for not allowing the child to spend time with his father.

Pursuant to the medical evidence, it was held that the mother had a reasonable excuse up until 5 June 2020, when the updated medical report was obtained. Thereafter, and on the child no longer being considered to be at “high-risk” during the pandemic, “it was obvious that there was no reasonable basis for the Mother believing that it was necessary to withhold the Child . . . on health grounds”.9 The father did not spend any time with the child for 14 weeks, and the Court found it particularly regrettable that the mother’s contravention resulted in the father being unable to spend either his or the child’s birthday together with the child. 

The Court was satisfied that both parties had the best interests of the child at heart and so imposed no penalty on the mother. The Court awarded the father make-up time, as well as slightly increasing his regular, ongoing time with the child. The parties were ordered to bear their own costs. 

Biondi & Koen

Biondi & Koen10 involved an interim application filed by the mother, Ms Biondi, to suspend the introduction of the father, Mr Koen’s, overnight time with their child, which was due to occur pursuant to interim orders made by the Court in December 2019. 

The facts are briefly summarised as follows: 

  • the mother was an international student who had a brief and casual relationship with the father in 2016 and subsequently fell pregnant with the parties’ child. The parties lived together for a period thereafter, but separated in early 2017.
  • the mother made an application to the Family Court to relocate with the child to Brazil and the matter came on for a five-day final hearing in December 2019. The Court’s decision was reserved and interim orders were made that the child spend frequent time with the father, including overnight time 
  • while the parties awaited the Court’s decision, the COVID-19 virus reached Australian shores and the mother, concerned by the virus, applied to have the father’s time limited to two hours per day at her home and that the father wear gloves and a face mask during his time with the child
  • the father opposed the variation and sought no change to the interim orders, stating that he would take all reasonable protective measures within his home to protect the child, including disinfecting the premises prior to each visit and not permitting visitors to his home while the child was present.

According to the family report writer, the parent’s relationship was “characterised by high reciprocal mistrust and poor communication”.11 The Court likewise found that the parents were “ill-matched” and “the foundation of a respectful and trusting relationship was never at any time established”.12 

Despite the hostility displayed by each parent, the Court found the mother justified in her concerns about the transmission of the virus, given her lack of private health insurance or Medicare cover, lack of family in Australia and the child’s young age. She adopted strict, but not overly vigilant, precautions in the wake of the pandemic and while presenting as anxious, was not held to be motivated to exclude the child from the father’s life. 

Nonetheless, her concerns, while genuine, were not found to be reasonably held. Her anxiety was a prolonged and significant issue for her and given the circumstances of the pandemic, would not have been reduced by the Court’s refusal to introduce overnight time. Conversely, the father proceeding to overnight time would not have increased the mother’s anxiety to such an extent that her ability to provide adequate care for the child would have been materially affected and nor would the delay in progressing to overnight time have made that outcome any easier for the mother to bear. 

Conclusions

Ultimately, like most aspects of family law, what behaviours constitute “reasonableness” and “reasonable excuse” remain a matter for judicial discretion, but there are a few lessons that can be gleaned for practitioners and parents alike. 

The courts have evidently shown leniency during the pandemic and understand that parents are generally motivated by a genuine desire to protect their children rather than use them as pawns in their own conflict. The cases in which parties have had success have involved arguments supported by specific evidence, such as the WHO document in Kardos & Harmon or the medical report in Pandell & Walburg (No 2) compared to the mother’s own anxieties in Biondi & Koen. Indeed, the emerging jurisprudence, also supported in cases such as Xiu & Hodges13 and Santer & Santer14 is that there must be a genuine and specific posed risk to a child, rather than simply the general concerns surrounding the pandemic. 

It would be prudent to bear in mind that as restrictions ease and confirmed COVID-19 cases decline, it is less likely that health concerns related to the virus will be considered a “reasonable excuse”. In circumstances where they do breach orders, parents would also be wise to offer make-up time or propose alternative arrangements in the same spirit as the original orders. 

Perhaps the most important lesson, and one that would help foster mutual trust, respect and better relationships between separated parties, is one that echoes the famous words of Lord Denning in Combe v Combe15 – excuse can only be used as a shield, not as a sword. ■


Radu Catrina is a lawyer at Berry Family Law, a member of the LIV YL Executive Committee and co-chair of the YL Editorial Committee.

  1. ALRC Report 35, Contempt, Australian Government Publishing Service, Canberra, 1987 at 623.
  2. Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
  3. Stavros and Stavros [1984] FLC 91-562; O’Brien and O’Brien [1993] FLC 92-396; Daly and Campbell [2005] FLC 93–236.
  4. Family Court of Australia and Federal Circuit Court of Australia, Media Release, 26 March 2020, at 2.
  5. Note 4 above, at 4.
  6. Note 4 above, at 11.
  7. [2020] FamCA 201.
  8. [2020] FCCA 1853.
  9. Note 8 above, at [35].
  10. [2020] FamCA 201.
  11. Note 10 above, at [34].
  12. Note 10 above, at [36].
  13. [2020] FamCA 225.
  14. [2020] FAMCA 445.
  15. [1951] 2 KB 215.

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Arbitration for Family Law Practitioners
Tuesday 30 March 2021
9:30am-12:45pm

CPD type – PS

The LIV, in collaboration with Australian Institute of Family Law Arbitrators and Mediators (AIFLAM), presents this practical workshop. Facilitators Martin Bartfeld QC and O’Sullivan Davies partner and AIFLAM chair Andrew Davies will cover basic procedures and practical steps to help you assist clients effectively and efficiently.

 

 
 
 

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Retirement Village and Aged Care Contracts
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In this highly practical session, Margaret Harrison of Aged Care and Elder Advice will take a deep-dive into retirement village and aged care contracts, consider the financial considerations of each and provide you with the information needed to practice effectively.  

Recent Developments in Elder Law video examines recent interpretations of the Guardianship and Administration Act 2019 and provides insights into the Office of the Public Advocate’s new Future Planning Resources and how to use them in your practice. It also looks at the criminalisation of elder abuse in other Australian states, the current state of aged care in Victoria and more.


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