In the case of Pandell & Wallburg (No. 2) (2020) the Family Court gave some guidance.
The Father filed an urgent application after the Mother withheld their 4-year-old child from spending time with him for 14 weeks in breach of interim parenting orders. The Mother asserted she had a reasonable excuse for doing so. The Mother argued that the child was at risk if he was to spend time with the Father. The Mother obtained a Medical Certificate which stated that because of an immune deficiency the child was at risk of severe disease if he contacted Covid-19 and recommended that he self-isolate with his primary carer (the Mother). The Mother, therefore, claimed it was too risky for the child to spend time with the Father.
However, an independent updated Medical Report was ordered which provided a different opinion, namely that the child was not considered high risk of a severe Covid-19 related illness.
The Court reminded the parties that even during this pandemic, parents are expected to comply with Court Orders and of the definition of a reasonable excuse for contravening a parenting order. Pursuant to Section 70NAE(5) of the Family Law Act, a person is taken to have a reasonable excuse for contravening a parenting order if that person believes on reasonable grounds that not allowing the child to spend time with the other parent was necessary to protect the health and safety of the child and the period during which, because of the contravention the child did not spend time with the other parent, was not longer than was necessary to protect the health and safety of the child.
The Court considered that the Mother had a reasonable excuse for contravening the parenting orders from the 22nd of March to the 5th of June 2020 based on the initial medical advice. But once the Mother obtained the updated Medical Report, she had no reasonable excuse for withholding the child from the Father between 5th of June and 29 June. The Court ordered make up time and varied the Orders to provide an increase in time for the Father.
The takeaway points from this case are:-
- There can be serious consequences which flow from contravening a parenting order, so don’t do so lightly;
- Clear, unambiguous medical evidence from a competent and appropriately qualified Medical Practitioner must be available and given to the other party before stopping contact;
- Give the other parent an opportunity to speak with and be informed by the Doctor who gave the opinion.
- Try to work with the other parent. If possible, get agreement to defer contact, or make alternative arrangements (i.e. less time or exercised at a safer location).
