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22 May 2020

Kardos and Harmon: shedding some light on contravention applications and COVID-19

In the May 2020 decision of Kardos & Harmon, the Family Court was asked to decide whether the mother’s refusal, due to COVID-19 related concerns, to allow her child to travel by plane from Adelaide to Queensland to spend time with his father pursuant to final parenting orders, was a contravention of those orders; that is, a breach of the orders without reasonable excuse.

While the Queensland borders are closed, there is an exception that allows interstate travel to Queensland where it is in accordance with a court order; for example, a parenting order that requires a child to travel interstate to Queensland to see their other parent.

In the May 2020 decision of Kardos & Harmon, the Family Court was asked to decide whether the mother’s refusal, due to COVID-19 related concerns, to allow her child to travel by plane from Adelaide to Queensland to spend time with his father pursuant to final parenting orders, was a contravention of those orders; that is, a breach of the orders without reasonable excuse.

The facts of Kardos & Harmon

Ms Harmon and Mr Kardos have a 3 year old son.

Ms Harmon lives with her child in Adelaide. Mr Kardos lives in Brisbane, although has only recently moved from Darwin.
In December 2018, final parenting orders were made providing that the child live with his mother in Adelaide and, after he turned 3, spent time with his father in the last week of every month from Thursday until the following Monday. Ms Harmon was to travel to Darwin with her son for changeover at the Darwin airport. Mr Kardos was to return the child to Ms Harmon in Adelaide at the conclusion of his time with him. If Mr Kardos gave Ms Harmon 90 days’ written notice, the orders required Ms Harmon to instead travel to Brisbane for changeover.

On 21 March 2020, Ms Harmon contacted Mr Kardos and suggested that he travel to Adelaide to spend time with his son, in order to reduce the child’s exposure to the COVID-19 virus while travelling through airports and on board a plane.

Given South Australian border restrictions, she proposed this occur after Mr Kardos had finished the mandatory 14 day self isolation period in Adelaide. She also proposed that make up time occur if this wasn’t suitable to Mr Kardos.

On 26 March 2020 and 30 April 2020, the child was to spend time with Mr Kardos pursuant to the parenting orders, but did not. Ms Harmon had not travelled with her son by plane to effect changoever with Mr Kardos.

Mr Kardos filed a contravention application and sought that it be heard urgently. He alleged that Ms Harmon had breached the parenting orders by not faciliating the child flying to Brisbane to spend time with him.

In order for Mr Kardos’ application to be successful, he needed to prove that Ms Harmon breached the orders without a reasonable excuse.

The Family Court’s decision

The Court held that Mr Kardos failed to establish that Ms Harmon had breached the orders because there was no evidence that Mr Kardos had given her the 90 days’ written notice required for changeover to occur at the Brisbane airport. This was a technicality required by the orders.

More importantly, even if the appropriate notice had been given by Mr Kardos, the Court found that Ms Harmon had a reasonable excuse for non-compliance with the orders.

Section 70NAE of the Family Law Act 1975 provides that a person may have a reasonable excuse for contravening a parenting order if:

  • they believed, on reasonable grounds, that not allowing the child and other person to spend time together was necessary to protect the heath or safety of a person, including the respondent or child; and
  • the period during which the child and person did not spend time together was not longer than necessary.

The Court found that Ms Harmon’s concerns for the health of the child were a reasonable excuse for her not flying the child to Brisbane airport.

The Court had regard to a document released by the World Health Organisation (WHO) titled ‘Coronavirus Disease (COVID-19) Advice for the Public’, which provides as follows:

  • Maintain at least 1 metre (3 feet) distance between yourself and others. Why? When someone coughs, sneezes, or speaks they spray small liquid droplets from their nose or mouth which may contain virus. If you are too close, you can breathe in the droplets, including the COVID-19 virus if the person has the disease.
  • Avoid going to crowded places. Why? Where people come together in crowds, you are more likely to come into close contact with someone that has COVID-19 and it is more difficult to maintain physical distance of 1 metre (3 feet).

The Court referred to each Australian state government having issued public health notices with principles underpinning the advice provided by the WHO. The Court relied upon the South Australian Department of Health website ‘Latest Updates on COVID’, which showed that, from 10 March 2020 to 8 April 2020, there were 68 flights from or to Adelaide and other locations in Australia with confirmed cases of COVID-19.

The Court was satisfied, having regard to this publicly available information, that Ms Harmon believed on reasonable grouds that not allowing her child to spend time with Mr Kardos in Brisbane was necessary to protect the health of her child and herself. The Court said

This is because the mother would not have been able to maintain safe social distancing during the period of the aircraft travel and there was an unacceptable risk that the child would come into close contact with a person infected by the virus during the course of the aircraft travel.

The Court also found that the South Australian rules required Ms Harmon to self-isolate for a period of 14 days on her return to Adelaide. Ms Harmon was a casual worker who would have to forego her income in the 14 day self isolation period. Her evidence was that she had requested her employer provide her with days off in March and April and her request was declined. The Court accepted that her employment would be prejudiced and she would suffer financial hardship if she was required to return from Brisbane to Adelaide and self-isolate for 14 days.

What does this all mean?

While this is a single judge decision, it does give some guidance to, and potentially has a large impact during the pandemic for, parents who have children that fly interstate for changeover.

If one parent raises concern about the child’s exposure to COVID-19 while in transit, this may be a reasonable excuse not to allow contact to occur. It would be wise, however, to offer make up time, regular telephone or FaceTime contact, or propose that the other parent travel to the child (as opposed to the child travelling).

Depending upon a party’s financial circumstances, it may also be a reasonable excuse that a parent cannot travel with their child by plane to effect a changeover, when on return to that parent’s home state or territory they must self-isolate, and this will cause them financial hardship due to an inability to work and be paid.

Of course, each case will turn on its facts given that each state and territory has different rules about self-isolation and varying numbers of flights with confirmed cases of COVID-19.

It is also important to bear in mind that, as restrictions start to ease and confirmed COVID-19 cases decline, it is less likely that COVID-19 related health concerns for a child will be considered a ‘reasonable excuse’ in contravention applications.

If you require any assistance with your parenting arrangements during COVID-19, please do not hesitate to contact one of our experienced family lawyers.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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