A common question asked of family law lawyers in 2020 is: “do I have to continue following parenting Orders during the pandemic?” There are very limited circumstances in which the Court will permit parents to fail to comply with Orders of the Court.
Parents will need to establish that there is a reasonable excuse for not complying. Whether the action or conduct is needed and necessary to protect the child should be considered.
In a recent case of Pandell & Walburg (No 2) the Court considered the circumstances of COVID-19 and how it relates to reasonable excuse.
In this matter, although interim parenting Orders provided for the father to spend time with the child, the mother had been withholding the child for approximately 3 months. The father’s family law lawyers filed an urgent application for time to resume and for make-up time. During the hearing, the mother claimed that she had received advice from the child’s GP that as a result of a pre-existing health condition, the child was at greater risk of suffering an adverse reaction to a possible COVID-19 infection and should self-isolate with the child. The Court confirmed that the advice of the GP to self-isolate amounted to a reasonable excuse to contravene the parenting Orders and withhold the child. However, a later updated report confirmed that the child is not at high risk during the COVID-19 pandemic. From that point, the Court found that the mother did not have a reasonable excuse. Ultimately, the Court Ordered time with the father to resume and for make-up time with the child.