COVID, Courts and Contravention
State borders are still closed and most children have returned to school. The question for many parents is “if you have a health concern for your child, can you refuse to comply with a parenting court order?”. That is, can you contravene it? This has become a popular topic in the current COVID-19 climate, because the reality for many parents is that contact time with children is not being facilitated as required under a parenting order.
What are Contravention Orders?
If a parent intentionally fails or makes no reasonable attempt to comply with a parenting order, the court can make a finding that they have contravened the order. Where it is found that an order has been contravened, the court has the power to make a variety of orders depending upon the seriousness of the contravention. Such remedies may include enforcing the parenting order, providing make up time to compensate a parent for time missed, imposing a fine against the contravening parent or potential imprisonment.
A contravention may be excused where there is a reasonable explanation for breaching the order, for example, where the non-compliance was necessary to protect the health and safety of the child or themselves. Whether not facilitating contact time due to COVID-19 can be excused for this reason is to be considered on a case by case basis, but it will require something more than just fear of illness.
Effect of COVID-19
The Chief Justice of the Family Court recently took the unusual step of providing guidance on complying with parenting orders in light of COVID-19. In particular, the Chief Justice noted that parents are still expected to facilitate contact time with children, pursuant to parenting orders. The Chief Justice’s statement also provided that, in the event that a dispute arises between parents because it is impossible to strictly comply with orders, parents should ensure that the other parent continues to have some contact with the child, until the dispute is resolved. A detailed summary of the Chief Justice’s statement can be viewed here.
What are you seeking to achieve?
The law on contravention of orders is complicated and we recommend you obtain legal advice before making an application to the court. It is also important that you consider carefully what it is that you seek to achieve by bringing a contravention application and if only to punish the other parent, how this may affect your co-parenting relationship.
The court has expressed an unwillingness to entertain petty and unwarranted claims for contravention of parenting orders. In a recent decision, the Family Court found that the mother had contravened the parenting order without reasonable excuse, by not ensuring that the child was available for his telephone contact with the father and for failing to give the father the required 60 days’ notice of the child’s proposed international travel. Despite finding against the mother, the court held that the father’s application was “petty and unwarranted” and subsequently, the court did not impose any sanction against the mother and instead ordered costs against the father.
If you are concerned about your obligations under a parenting order, or your contact time with a child has not been facilitated particularly during COVID-19, one of our experienced family lawyers can assist you. Call our office on (07) 3221 4300 or fill out our booking form online.