Co-parenting has its challenges at the best of times and, as with almost every other aspect of our lives, the COVID-19 pandemic has created additional obstacles for separated parents. It is no wonder that many parents are now wondering how to protect their children from the virus whilst complying with existing parenting orders.

In the recent case of Pandell & Walburg (No 2) (2020) the mother withheld the four year old child from all in-person time with the father between 22 March 2020 and 29 June 2020, being the date of the hearing. The Court was asked to determine whether she had a “reasonable excuse” to do so on the basis of concerns around the child’s health during the pandemic.

The Court heard that the mother “and the child [had] been self-isolating at home” in line with the recommendations of the child’s General Practitioner who held the view that the child was at risk of developing a serious illness if exposed to COVID-19. The father relied upon existing parenting orders which specified that the child would spend two days per week in his care.

The advice contained in a court-ordered report dated 5 June 2020 differed significantly from the advice of the child’s General Practitioner. The report clearly stated that the child’s current state of health did not preclude the child from attending school or spending time with family members. Despite this new advice, it was not until 28 June 2020 that the mother’s solicitors confirmed that the mother would recommence to facilitate the child’s time with the father.

Chief Judge Alstergren ultimately found that the mother had reasonable excuse for withholding the child between 22 March 2020 and 5 June 2020 but not thereafter, when new medical advice was to hand. This case confirms that depending on the specific medical advice available at the time, a parent’s concerns about the health and wellbeing of the child amidst the COVID-19 pandemic may indeed constitute “reasonable excuse”.

In its media release on 26 March 2020, the Federal Circuit Court urged parents to “ensure that the purpose or spirit of the orders are respected when considering altering arrangements” if orders cannot be strictly adhered to during the pandemic. Now more than ever, it is imperative that separated parents adopt a child-focused approach to the implementation of existing parenting orders.

If you need assistance with your family law matter please contact the TLFC Family Law Team on 03 8600 9368 or 03 8600 9361 or email Justine Clark at jclark@tlfc.com.au and Tina Deburiet at tdeburiet@tlfc.com.au.

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