Recent case demonstrating the Court’s condemnation towards parents who fail to act in accordance with Court Orders and use COVID-19 as an excuse to deprive children from seeing their other parent without supporting medical evidence

This month our office was involved in a parenting dispute that saw us act on behalf of the Applicant Father in bringing an Application for a Recovery Order resulting from the current COVID-19 crisis.

By way of background, the Father had not seen his two children for some six weeks as the Respondent Mother refused to allow the children to spend time with the Father as they had been self-isolating and she had concerns that the children would contract COVID-19 if they spent time with the Father. The Mother argued that she was only trying to protect her children from contracting COVID-19 and that she did not want to expose them to any risk. She explained that because the Father was an “essential” worker, as were other members of his household, the children faced an increased risk of contracting the virus if they were to spend time with him. In response to this, His Honour explained that parents who are “essential” workers have the right to spend time with their children. His Honour observed that plenty of parents are worried about the virus, but the virus is not an excuse to not comply with Court Orders. In doing so, His Honour referred to the clear Statement issued by the Chief Justice of the Federal Circuit and Family Court of Australia on 26 March 2020, which set out this exact point.

Subsequently, His Honour indicated to the Mother that without medical evidence showing that the children would be at an unacceptable risk in seeing their Father, there was no reason to deny access to him. Whilst the Mother went on to say that she had been offering unlimited Facetime with the children, His Honour remarked that this is not the same as complying with Court Orders and actually spending time with the children.
His Honour informed the Mother that if she continued to fail to comply with the Court Orders then she faced the likelihood of having numerous contravention applications filed against her which would result in fines and possible imprisonment being imposed on her, as well as the prospect of an application being brought that the children live with the Father.

The Respondent Mother wanted a guarantee from the Father that the children would not contract COVID-19 if they were to spend time with him. His Honour said that no one can provide that guarantee and the Court would not require the Father to provide this guarantee. The Respondent Mother then conceded that she would resume complying with the Court Orders and advised the Court the children would see their Father on the forthcoming weekend in accordance with the Court Orders in place. As a result, His Honour refused to make a Recovery Order, instead allowing the Applicant Father liberty to approach the Court should any further non-compliance by the Mother occur.

A costs order was awarded against the Mother in favour of the Father. His Honour concluded this to be just and equitable on the facts of the case due to the significant effort the Father’s lawyer had gone to in providing the Mother with information concerning complying with parenting orders during the COVID-19 crisis. His Honour went on to comment that even in light of the information provided to the Mother, she continued to not make the children available to spend time with their Father. Therefore, the Father should be compensated for the costs involved in bringing the matter to Court.

Take away message
Whilst a Recovery Order was not granted in this matter, the case serves as a reminder to parents of the importance of complying with Court Orders during the COVID-19 crisis, and how serious the Court will be in enforcing Parenting Orders. Parents who unjustifiably use COVID-19 as an excuse to deprive the other parent of spending time with the children will face stern condemnation by the Court.