Is COVID-19 a reasonable excuse to not comply with a parenting court order?

Is COVID-19 a reasonable excuse to not comply with a parenting court order? – A Case Study

Is COVID-19 a reasonable excuse to not comply with a parenting court order? – A Case Study

COVID-19 has affected almost every aspect of life in 2020 and in Family Law this is no exception. The restriction of interstate and local movement presents many challenges for separated families.

Here is one example of a case study below, where we look at whether or not COVID-19 is a reasonable excuse to not comply with a parenting court order, as it ultimately depends on the facts of the individual matter at hand.

Case Study- Pandell & Walburg (No. 2)

In this case there was a dispute as to whether the Mother had not complied with a parenting order by not making the 4-year-old child available to spend time with his Father since late-March 2020, during the COVID-19 pandemic. The issue to consider was whether there was a reasonable excuse for the non compliance or not.

 

Facts of Case

The applicant father brought an urgent Application in a Case on 4 May 2020 in the COVID-19 List. He alleges that the respondent mother has withheld their child which is in breach of interim parenting orders made on 1 March 2019 and 24 October 2019.

In his Application in a Case, the father sought orders that the mother comply with order 3 of orders dated 1 March 2019 and order 2 of orders dated 24 October 2019 and that the father resume spending time with the child in accordance with those orders.

The father also requested he have additional time from 9am Saturday to 4pm Sunday each week to make up for the time he has lost as a result of the mothers actions.

The mother filed an Affidavit in response stating that the child has not been spending time with the father because she and the child have been self-isolating at home under the advice of the child’s treating General Practitioner, Dr C.

 

Mother’s arguments

The mother maintains that she has a reasonable excuse for doing so as a result of the child’s previous health condition, that the immune suppressant nature of the treatment the child has received makes him more likely to be severely affected by COVID-19, and the health risk that the child spending time with the father would pose to the child.

The Mother obtained advice from the child’s treating doctor that due to the child’s medical condition he was at risk and should remain isolated at home with the primary parent, this being the Mother.

A letter dated 5 May 2020 from Dr C (the child’s treating doctor) of City B Paediatric Clinic to the court stated it was on the doctor’s advice that the child be in social isolation with his mother since 22 March 2020

 

Father’s arguments

The father’s affidavit states that he had not spent any physical time with the child since 22 March 2020 due to the mother preventing the child from spending time with him in person, due to concerns relating to COVID-19. The father, however, insists that the child has no health issues which would be of concern.

A secondary report dated 5 June 2020 from Dr C (the child’s treating doctor) of City B Paediatric Clinic indicated that the child was in fact not at high risk during the COVID-19 pandemic, despite the initial report saying otherwise. As a result of this new report, from 5 June 2020 onwards, there was no reasonable basis for the mother to withhold the child from the father, after that date, on health grounds.

Court decision

Before the Court decided the matter an updated specialist medical report was ordered. That report essentially confirmed that the child was not at high risk. The Mother continued to withhold the child following the issue of that report.

The mother further deposes that she had concerns because the mother and child spend time with the maternal grandmother, who is undergoing chemotherapy treatment and has been self-isolating during the COVID-19 pandemic.

The court found that the mother had a reasonable basis for not allowing the child to spend time with the father up until 5 June 2020 and had a reasonable excuse for not complying with the interim parenting orders up until that date.

However, the court found that this was not the case when the mother continued to withhold the child from 5 June 2020 until 29 June 2020.

The court made orders that the father shall resume spending time with the child on Thursday 2 July 2020, pursuant to order 3(a) of the orders dated 1 March 2019 and that the father may have make-up time with the child.

 

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