Kardos & Harmon
[2020] FamCA 328
•7 May 2020
FAMILY COURT OF AUSTRALIA
| KARDOS & HARMON | [2020] FamCA 328 |
| FAMILY LAW – CONTRAVENTION – CHILD – Where compliance with the orders is impacted by cross border travel restrictions and safety concerns in respect to the COVID-19 pandemic – Where the father makes an application under sub-division F of Division 13A of Part VII of the Family Law Act 1975 (Cth) claiming a more serious contravention has occurred – Where the father resides in Brisbane – Where the father alleges the mother contravened final orders made in 2018 by not facilitating the child spending time with him in Brisbane – Where the mother and the child reside in Adelaide – Where the orders provide that 90 days written notice be provided to the mother as a precondition to the mother being required to deliver the child to Brisbane Airport – Whether notice was given pursuant to the orders – Whether, if the court finds no notice was given pursuant to the orders, a contravention is established – Where the mother contends that, due to circumstances relating to the current COVID-19 pandemic, she has a reasonable excuse for not travelling with the child to Brisbane – Whether the mother has established a reasonable excuse – Whether the Court should vary the final orders made in 2018 – Contravention Application dismissed – Orders made varying the final orders made in 2018 – Orders made for submissions as to costs. |
| Family Law Act 1975 (Cth) sub-div. F div. 13A pt. V11, s. 43(1), 60B, 60CA, 60CC, 65DAA, 70NAC, 70NAD, 70NBA, 70NFB, 70NAE, 70NAF Evidence Act 1995 (Cth) s 144 Public Health Act 2005 (Qld) Emergency Management Act 2004 (SA) Cross Border Travel Direction (SA) Emergency Management (Cross Border Travel No. 3) (COVID-19) Direction 2020 (SA) Border Restrictions Direction (No. 3) (QLD) |
| B & B (No.2) [2007] FMCAfam 5 Blinko & Blinko [2015] FamCAFC 146 Childers and Leslie (2008) FLC 93-356 Dieter & Dieter [2011] FamCAFC 82 Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 Russell & Close (Unreported Full Court, 25 June 1993). Sedley & Sedley [2018] FamCA 315 The Hon. John Fogarty AM, ‘Unacceptable Risk: A Return to Basis’ (2006) 20 Australia Journal of Family Law 249 World Health Organization, Coronavirus Disease (COVID-19) Advice for the Public, World Health Organization website, accessed 29 April 2020 Communicable Diseases Network Australia, Coronavirus Disease 2019 (COVID-19) CDNA National guidelines for public health units¸ Australia Government Department of Health, version 2.8, 1 May 2020 South Australian Department of Health, Latest Updates on COVID-19 - Known flights with confirmed cases of COVID-19, South Australia Department of Health website, accessed 29 April 2020 |
| APPLICANT: | Mr Kardos |
| RESPONDENT: | Ms Harmon |
| FILE NUMBER: | ADC | 4983 | of | 2017 |
| DATE DELIVERED: | 7 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 4 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr R Gordon |
| SOLICITOR FOR THE APPLICANT: | Best Wilson Buckley Family Law |
| THE RESPONDENT IN PERSON. |
Orders
PENDING FURTHER ORDER THE COURT ORDERS THAT:
That for a period of six (6) months, or until further order of the Court:
(a)Order 21 of the Orders made by the Federal Circuit Court of Australia on 5 December 2018 be suspended and replaced with the following:
21. That upon the child turning three (3) years of age (and if the father resides in the Northern Territory or a distance exceeding 100 kilometres from the mother's SA residence), the child is to spend time with and communicate with the father at all times as agreed to by the parties in writing, but failing agreement:
(a) for the last week of every month from 12pm Thursday in the last week of the month to 5pm the following Monday.
(b) for Christmas in 2019 from 27 December 20 I 9 until 3 January 2020
(c) with such time to be spent in Adelaide.
(b)Order 26 of the Orders made on 5 December 2018 be suspended and replaced with the following order:
26. That for the purposes of the child spending time with the father in accordance with the above order:
(a) the mother will deliver the child to the father’s Adelaide accommodation at the commencement of the child spending time with the father and she will also collect the child from the father’s Adelaide accommodation at the conclusion of the child spending time with the father, and
(b) The mother will share the cost of the father’s airline flight from Brisbane to Adelaide and return.
(c)Order 27 of the Orders made on 5 December 2018 be suspended for the duration of this order.
In the event that, during the six (6) month period that these Orders are in place, the father is unable or unwilling to spend time with the child in Adelaide, at any of the times the child is to spend time with him in accordance with these Orders, then the child shall spend make-up time with the father as agreed by the parties and, in the absence of agreement, as follows:
(a)The child shall spend the second weekend of every month with the father until such make-up time is equivalent to the time that the child would have spent with the father in accordance with the Orders made on 5 December 2018;
(b)To avoid doubt, the make-up time that the child is to spend with the father in accordance with this Order includes time that the child did not spend with the father during the months of March and April 2020;
(c)The make-up time that the child spends with the father in accordance with this order shall occur in Adelaide;
(d)That for the purposes of the child spending time with the father in accordance with this Order:
(i)the mother will deliver the child to the father’s Adelaide accommodation at the commencement of the child spending time with the father and she will also collect the child from the father’s Adelaide accommodation at the conclusion of the child spending time with the father; and
(ii)The mother will share the cost of the father’s airline flight from Brisbane to Adelaide and return.
In the event that, based on publically available information published on government websites, either party is of the opinion that the safety concerns associated with the child travelling from Adelaide to Brisbane by aircraft have been alleviated, to such an extent that the travel does not present an unacceptable risk to the child, then the parties have liberty to apply for further orders on the giving of seven (7) days’ notice to the Court and the other party.
In the event that the mother wishes to apply for an order for costs in respect to the contravention proceedings commenced by the father, then she shall file and serve written submissions, of not more than three (3) pages in length, by 13 May 2020 and the father shall file and serve a reply to the mothers written submissions, of no more than three (3) pages in length, by 20 May 2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kardos & Harmon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: ADC 4983 of 2017
| Mr Kardos |
Applicant
And
| Ms Harmon |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern a Contravention Application filed on 30 April 2020 by Mr Kardos (“the father”) alleging Ms Harmon (“the mother”) has contravened Orders made by the Federal Circuit Court of Australia (“the FCC”) on 5 December 2018 (“the 2018 final Orders”). The 2018 final Orders provide for the child, X (“the child”), to spend four (4) days per month with the father and for that time to occur by the mother delivering the child to the father at Darwin Airport or, provided 90 days written notice is given to the mother, Brisbane Airport. The orders further provide for the father to deliver the child to the mother at Adelaide Airport at the end of that time. It is agreed that the child has not spent time with the father in respect to the months of March 2020 and April 2020. This has been due to the mother’s concerns associated with the current COVID-19 pandemic.
The father contends that the mother, who lives in Adelaide, has no reasonable excuse for failing to deliver the child to Brisbane to enable the child, who is three (3) years old, to spend time with him. The mother contends that, due to circumstances relating to the current COVID-19 pandemic, she has a reasonable excuse for not travelling with the child to Brisbane. The reasons advanced by the mother relate to the mother’s concerns for the child’s health and also to the effect of border restrictions that the mother contends would require the mother and the child to remain in self-isolation for a period of 14 days after their return to South Australia.
For reasons which I subsequently set out, I have found that the mother has not contravened the 2018 final Orders, as alleged by the father, and further the mother has established that she has a reasonable excuse for non-compliance with the 2018 final Orders. In an endeavour to resolve the parties’ dispute, I have exercised my power to vary the orders of the FCC to facilitate the father spending time with the child in Adelaide and, if that is not possible, for the child to spend make up time with the father. I have determined that such make up time should be spent in Adelaide.
Relevant background
On … 1980, the father was born. He is currently aged 39 years.
On … 1994, the mother was born. She is currently aged 26 years.
In December 2015, the parties commenced a relationship.
On … 2016, the child was born. He is currently aged three (3) years.
On 22 November 2017, the parties separated on a final basis.
On 5 December 2018, final Orders were made by the FCC providing that the child live with the mother in South Australia, the parents to have equal shared parental responsibility, and that, after the child turns three (3) years of age, he is to spend time with the father as agreed between the parties and failing agreement, if the father resides in the Northern Territory or a distance exceeding 100 kilometres from the mother’s South Australian residence, the last week of every month from 12pm Thursday until 5pm Monday with the father. The Orders further provided for the time to be increased on a graduated basis as the child ages.
The mother currently resides with the maternal grandparents, Mr B Harmon and Ms C Harmon. The mother asserts that the maternal grandmother has various health issues that make her more vulnerable to the COVID-19 virus. It has not been necessary to determine that issue in these reasons for judgment.
In January 2020, the mother commenced working as a casual rural worker on a rotating roster of three and a half (3.5) weekdays per week.
On 15 January 2020, the father informed the mother of his intention to relocate from the Northern Territory to Brisbane, Queensland.
On 19 March 2020, the mother attended her doctor in respect to concerns regarding the COVID-19 pandemic.
On 21 March 2020, the mother contacted the father to raise her concerns in respect of the COVID-19 pandemic and suggested to the father that he travel to Adelaide to spend time with the child to reduce the child’s exposure to the virus while traveling through Airports and on board an aircraft. The father asserts that, at this time, he believed that both parties were exempt from cross-border travel restrictions for reasons which included his belief that the travel would be in accordance with Court orders.
On 22 March 2020, a Major Emergency was declared in the state of South Australia in respect of the COVID-19 outbreak.
On 24 March 2020, the first “Cross-border Travel Direction” was made in South Australia providing that, inter alia, other than essential travellers, all people who arrive in South Australia must ensure arrangements are in place for them to reside and remain in that place for a period of 14 days.
On 22 March 2020, during a telephone call, the father contends that the mother made “clear” that she was not intending for the child to travel to Brisbane and that the mother instead offered for the father to travel to Adelaide. The father disputes the contention by the mother that cross-border travel is restricted, and asserts that travel between Queensland and South Australia by the parties would be exempted from restricted on the basis of “compulsion of law” or “compassionate grounds”.
On 26 March 2020, the child was scheduled to spend time with the father and on this occasion the father alleges that the mother, in contravention of the 2018 final Orders, did not facilitate this time occurring.
On 3 April 2020, the father contends that he telephoned South Australia Health and was given the advice that the parties were able to travel on “compassionate grounds” and in compliance with the orders. On the same day, the father contends that he telephoned Queensland Health and was advised that the child and the mother were able to enter Queensland without being required to self-isolate for 14 days, if a border pass was obtained.
On 4 April 2020, the father proposed to the mother, via Facebook messenger, that both parties travel from their respective State and meet halfway between Adelaide and Brisbane. The father asserts that both parties would remain exempted from the self-isolation restrictions imposed by each State.
On 9 April 2020, the father applied for and was issued a border pass to allow the father to travel in and out of Queensland.
On 14 April 2020, the current “Emergency Management (Cross Border Travel No. 3) (COVID-19) Direction 2020” (“the current SA cross border direction”) was issued. The current SA cross border direction provides that, inter alia, other than essential travellers, all people who arrive in South Australia must ensure arrangements are in place for them to reside and remain in that place for a period of 14 days.
On 23 April 2020, the South Australian Police, via an email, provided advice that, in relation to the current SA cross border direction, essential travel on compassionate grounds “does not relate to Court Orders.”
On 26 April 2020, the mother communicated with the father, via email, in respect to the issue of cross-border travel into South Australia and the restrictions imposed that, as she contended, do “not encompass or consider a handover of a child interstate as ‘essential travel’.” The mother proposed to the father that he travel to South Australia and spend time with the child following the 14 days’ that the father would need to self-isolate.
The mother contends that she has facilitated the child communicating with the father via FaceTime more frequently, and on 26 April 2020 the father communicated with the child for one and a half (1.5) hours on FaceTime.
On 30 April 2020, the child was scheduled to spend time with the father and on this occasion the father alleges that the mother, in contravention of the 2018 final Orders, did not facilitate this time occurring.
On 30 April 2020, the father filed a Contravention Application and sought the Application be heard on an urgent basis.
Alleged contraventions
The father alleges, as set out in his Contravention Application filed 30 April 2020, that the mother has committed the following contraventions:
(1)On 26 March 2020 at 12 pm at Brisbane Airport, “[t]he respondent mother without reasonable excuse failed to allow the child, X (the child) to spend time with the applicant father from 26 March 2020 to 30 March 2020.”
(2)On 30 April 2020 at 12 pm at Brisbane Airport, “[t]he respondent mother without reasonable excuse failed to allow the child to spend time with the applicant father from 30 April 2020 to 4 May 2020.”
For each contravention, the father, alleges that the mother has contravened Orders 21(a) and 26(a) of the 2018 final Orders. Those Orders provide:
21. That upon the child turning 3 years of age (and if the father resides in the Northern Territory or a distance exceeding 100 kilometres from the mother’s SA residence), the child is to spend time with and communicate with the father at all times as agreed to by the parties in writing, but failing agreement:
(a) for the last week of every month from 12pm Thursday in the last week of the month to 5pm the following Monday.
(b) for Christmas in 2019 from 27 December 2019 until 3 January 2020
26. That for the purpose of the child spending time with the father in accordance with the above orders:
(a) the mother will travel with the child to Darwin at the commencement of the child spending time with the father at the mother’s expense.
(b)the father will travel with the child to Adelaide at the end of spending time with the child at the father’s expense.
(c)The exchange point shall be the Darwin and Adelaide Airport baggage claim areas respectively, unless otherwise agreed between the parties.
[Emphasis added]
At the commencement of the proceedings, the father sought to amend his Contravention Application by removing reference to Order 26(a) and replacing that reference to Order 27(a). The mother consented to that amendment. Order 27 provides:
27. In lieu of the child spending time with the father in the NT upon the father providing at least 90 days prior written notice to the mother that he wishes to spend time with the child in Queensland:
(a) the mother will travel with the child to Brisbane at the commencement of the child spending time with the father, at the mother’s expense.
(b) the father will travel with the child to Adelaide at the end of spending time with the child, at the father’s expense.
[Emphasis added]
Evidence
The father relied on the following documents:
a)Contravention Application filed 30 April 2020;
b)Affidavit of the father filed 30 April 2020; and
c)Written submissions provided to the Court on 4 May 2020.
The mother relied on the following documents:
a)Affidavit of the mother filed 3 May 2020.
During the course of the hearing, pursuant to s 144(4) of the Evidence Act 1995 (Cth) (“the Evidence Act”), I advised the parties that I was considering taking judicial notice of the following publically recorded documents:
a)The document titled “Coronavirus Disease (COVID-19) Advice for the Public” issued by the World Health Organisation, last updated as at 29 April 2020;
b)The “Coronavirus Disease 2019 (COVID-19) CDNA National guidelines for public health units” issued by the Australian Government Department of Health version 2.8 current as at 1 May 2020; and
c)The South Australian Department of Health on its Internet website “Latest Updates on COVID-19 - Known flights with confirmed cases of COVID-19”
No objection was taken to my having regard to those publicly available documents.
Relevant legislation
Section 70NAC of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise--he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.”
As noted by counsel for the father at paragraph 7 and 8 of his written submissions:
7. Section 70NAD(b) of the Act applies to a parenting order that deals with whom the child is to spend time with. Therefore, paragraph 5 of the Orders are taken to include the general requirements of s 65N which are:
“(2) A person must not:
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and the child benefiting from spending time with each other under the order.”
8. Section 70NAD(a) of the Act applies to a parenting order that deals with whom the child is to live with. Therefore, paragraph 10 of the Orders are taken to include the general requirements of s 65M which are:
“(2) A person must not, contrary to the order:
(a) remove the child from the care of a person; or
(b) refuse or fail to deliver or return the child to a person; or
(c) interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.”
The father contends the conduct of the mother establishes that she had “serious disregard” for the 2018 final Orders as contemplated by sub-div F div 13A pt VII of the Family Law Act. That subdivision is entitled “Contravention without reasonable excuse (more serious contravention)”.
Section 70NFB of the Family Law Act sets out the powers of the Court in circumstances where such a more serious contravention is established. These powers include the power to:
·make a community service order;
·require the person, who has contravened the order, to enter into a bond;
·to fine the person not more than 60 penalty units; and
·subject to subsection (7), to impose a sentence of imprisonment on the person.
Consideration
Has the father established the alleged contraventions?
In the circumstances of this case, the father is required to establish that a contravention occurred on the balance of probabilities: s 70NAF(1) of the Family Law Act. It was agreed that the rules of evidence apply to proceedings under div 13A pt VII of the Family Law Act.
Order 27 of the 2018 final Orders make specific provision for the child to travel to Brisbane provided at least 90 days written notice is provided to the mother.
It is significant that the father submits that his Application should be considered as an application falling within sub-div F div 13A pt VII of the Family Law Act. As noted, in the event that such a contravention is found, the powers of the Court include the potential imposition of significant penalties such as the power to issue a fine, requiring the person to undertake community service, requiring the person to enter a bond or, indeed, subject to the precondition to which I have earlier referred, imposing a period of imprisonment.
In B & B (No.2) [2007] FMCAfam 5, referring to Davis & Davis (1976) FLC 90-050 (“Davis & Davis”) and Smit & Pickworth (1981) FLC 91-071, Brown FM, as he then was, stated at [100]:
Early authorities of the Family Court emphasise the quasi-criminal nature of contravention proceedings, which, if established, may render the contravenor liable to a penalty. Accordingly, a respondent to such an application is entitled to know precisely how he or she is alleged to have breached any particular order.
In circumstances where the Applicant, in contravention proceedings, alleges that the contravention constitutes a more serious contravention within the provisions of sub-div F of the Family Law Act, those proceedings should, in my opinion, be dealt with as quasi-criminal proceedings with the Applicant being required to properly particularise the alleged contravention(s) and to adduce evidence to establish each aspect of the alleged contravention(s).
In so deciding, I note that in Sedley & Sedley [2018] FamCA 315, Cronin J took a different view as to whether contravention proceedings, in parenting matters, are “quasi-criminal”. I respectfully agree with his Honour in respect to contravention proceedings that are other than proceedings pursuant to sub-div F div 13A pt VII of the Family Law Act, that is, proceedings, as in this case, alleging a “more serious contravention”.
Nevertheless, irrespective of how these proceedings are described or categorised, the fundamental point is that, if a party is found to have contravened parenting orders, there are potentially serious consequences for the contravening party. In those circumstances, it is important that the party who is alleged to have contravened an order is “informed with reasonable particularity of the matters alleged against [them]”: Davis & Davis (supra) at 75,207.
In the context of these proceedings, I would revise that statement to be: in contravention proceedings pursuant to div 13A pt VII of the Family Law Act, it is important that the party who is alleged to have contravened an order is accurately informed with reasonable particularity of the matters alleged against them and that evidence is presented to establish each element of the alleged contravention.
In advancing that formulation, I note that it is a fundamental principle that “if the Court is to punish any one for not carrying out its orders the order must in unambiguous terms direct what is to be done”: Iberian Trust Ltd. v Founders Trust and Investment Co. Ltd [1932] 2 K.B. 87 at [95].
Consistent with that principle, in Hale v Hale [2011] FMCAfam 1107 at [57], Brown FM, as his Honour then was, stated:
If there is an ambiguity arising from the order or orders, which give rise to the contravention application in question, such ambiguity should be resolved in favour of the person facing the contravention. It being fundamental that he or she can only be found responsible for an act or omission if he or she knows precisely what is required of him or her pursuant to the applicable order.
I respectfully agree with that analysis.
It is to be noted that Order 21 of the 2018 final Orders require the child to spend time with the father as agreed between the parties and, failing agreement, for that time is to be “the last week of every month from 12pm Thursday in the last week of the month to 5pm the following Monday.”
Order 26, being the Order originally relied upon by the father as the basis for alleging that the mother had contravened the 2018 final Orders, requires the mother to “travel with the child to Darwin at the commencement of the child spending time with the father.” The exception to that obligation are circumstances set out in Order 27 of the 2018 final Orders. That Order requires the mother to “travel with the child to Brisbane at the commencement of the child spending time with the father.” The precondition to that obligation being created, however, is “the father providing at least 90 days prior written notice to the mother”.
In this matter the father has failed to present evidence that he has provided such written notice to the mother. Counsel for the father contended, however, that the Court should infer that such written notice was provided because the mother agreed that the child would spend four (4) days with the father in each of the months of March and April and that time would occur in Brisbane.
The evidentiary background to that submission is that, at paragraph 5 of his Affidavit, the father states that he is currently living in Brisbane. Further, the mother acknowledges that she was advised by the father in January 2018 that he intended to move from the Northern Territory to Queensland. However, no evidence has been provided as to the date when the father actually moved from the Northern Territory to Queensland. Most relevantly, as noted, no evidence has been presented that the father, at any time, gave written notice to the mother that he required her to travel to Brisbane with the child, to effect changeover at the place at which he is now living.
The circumstances in which it is permissible for the Court to draw an inference are as set out, by the Supreme Court of Victoria Court of Appeal, in Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd (2017) 372 ALR 440 (“Masters Home Improvement”) at [466],where the Court said:
The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be ‘the more probable inference’ from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force.
[Citations omitted] [Emphasis added]
In this matter, it can reasonably be inferred that there was a communication between the parties resulting in the mother agreeing that the child would spend time with the father in Brisbane in the months of March and April. The fact that the mother did so agree does not, however, establish, as a probability, that the father provided the mother with written notice that he required her to deliver the child to Brisbane. It remains a matter of mere speculation as to whether he did or did not do so. Expressed in terms of the alternative formulation adumbrated in Masters Home Improvement (supra), while it is possible that the mother did agree to take the child to Brisbane after receiving written notice from the father, it is equally possible that she simply agreed she would do so. As each of those scenarios are equally possible, the father has failed to discharge his onus of proof, on the balance of probabilities, that it is more likely that the father gave 90 days written notice that he required the mother to deliver the child to Brisbane.
It should be emphasised that this issue is not trivial or simply an issue of semantics. This is because the mother’s obligations pursuant to Order 27 of the 2018 final Orders are activated at the point in time that is 90 days after she receives such written notice. In circumstances where there is no evidence that written notice was given, there is necessarily an absence of evidence as to the date that any such notice was given. In those circumstances, it is not possible to determine the point in time that the mother was obliged to comply with Order 27 of the 2018 final Orders. In other words, if the notice was given, for instance, shortly prior to the time that the child was due to spend time with the father in March 2020, the obligation pursuant to Order 27 would not yet have been activated because there has not been a lapse of 90 days since that time.
Accordingly, in circumstances where the father has particularised the alleged contraventions as having occurred at “Brisbane Airport”, he has failed to establish the precondition to the mother being obliged to take the child to Brisbane Airport in accordance with Order 27 of the 2018 final Orders. He has, therefore, failed to establish that the mother has contravened the 2018 final Orders as particularised in his Contravention Application filed on 30 April 2020.
Whether the mother has established a reasonable excuse
Moreover, even if I am wrong in determining that the father has failed to establish a contravention of Orders 21 and 27 of the 2018 final Orders, for the following reasons, I am nonetheless satisfied that the mother has established a reasonable excuse for any such non-compliance. It being noted that the mother, as the Respondent in these proceedings, bears the onus of establishing such reasonable excuse on the balance of probabilities: s 70NAF(1) of the Family Law Act.
Section 70NAE of the Family Law Act provides an inclusive definition as to when there is a basis for a Respondent failing to comply with an order of the Court. In other words, there may be circumstances other than those set out in s 70NAE of the Family Law Act that constitute a reasonable excuse: Childers and Leslie (2008) FLC 93-356 per Warnick J at 82,332. The reference to those broader circumstances subsequently becomes relevant in respect to reasons the mother advanced for failing to take the child to Brisbane, including reasons based on cross-border travel restrictions imposed by the Queensland and/or South Australian Governments.
Most relevant, however, for my finding that the mother has a reasonable excuse for failing to take the child to Brisbane airport, are my findings in respect to the mother’s concerns for the health of the child. In that respect, s 70NAE(5) of the Family Law Act specifically provides for a reasonable excuse in circumstances where the person believes, on reasonable grounds, that not allowing the child to spend time with the other parent is necessary to protect the health of the child.
Relevantly, s 70NAE of the Family Law Act provides:
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
…
(5) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
By letter dated 30 April 2020, the solicitor for the father wrote to the Registry of the FCC requesting an urgent listing of the father’s Contravention Application. In that letter it was stated that the basis upon which the contravention proceedings have been commenced was that “on 21 March 2020, the mother informed [the father] that [the child] would no longer be spending time with him. The mother has asserted that the travel restrictions imposed as a result of the Covid-19 pandemic prohibit [the child] and both parties travel for the purposes of [the child] and [the father] spending time together. [The Father] disputes this assertion and deposes to the information he has obtained from government bodies which refute the mother’s position.”
The focus of cross-examination of the mother, by counsel for the father, also primarily related to the issue of the operation of cross-border travel restrictions. The focus of the father’s legal representatives on that issue, that is, cross-border travel restrictions, with respect, failed to adequately address the very real concerns that the mother had voiced in respect to the child’s health in the context of the current COVID-19 pandemic.
In that context, Annexure K-02 to the father’s Affidavit attaches copies of the mother’s communication to him which are dated 21 March 2020 and 26 April 2020. The mother’s text message of 21 March 2020 makes clear that the mother’s concerns related to the “serious health concern” she had for the child. The mother’s text message dated 21 March 2020 read as follows:
Hi [the father],
I consider it would be in [the child’s] best interest, and for that of my family, and the child care centre that alternative visitation arrangements be made whilst the corona virus remains a serious health concern to all. I am putting the health and well-being of [the child] first.
I propose that you fly to Adelaide and spend the agreed time with [the child] in Adelaide, instead of Brisbane to reduce the exposure risk (i.e. airports, large numbers of people) that [the child] has to the corona virus. I am not proposing to limit your time with [the child] in any way and I am willing to pay for your flight to Adelaide. This means you only have to pay for the one (1) flight instead of the usual three (3). I will provide you with a car seat and toys for [the child].
Alternatively, we can arrange make up time if this trip (March) doesn’t suit you leaving QLD to visit [the child] in Adelaide for work obligations.
If you do not agree to this proposal, can you please provide a legitimate reason, that also includes the medical advice you have received, that advises my proposal does not reduce [the child’s] exposure risk to the deadly virus.
If we cannot come up with a reasonable agreement for your time with [the child], I am considering reopening the court case to get an interim orders [sic] while the COVID-19 is a pandemic in Australia and obligations are constantly changing to reduce the spread.
In other words, the communication from the mother clearly sets out that her concerns relate to the health of the child and other members of the child’s family. In these proceedings, counsel for the father objected to the mother’s evidence that her mother, that is the child’s maternal grandmother, has health conditions that make her particularly vulnerable to exposure to the COVID-19 virus. The evidence presented by the mother, who was self-represented, in respect to the state of her mother’s health was hearsay and opinion. Accordingly, in circumstances where the rules of evidence apply in these proceedings, I have not had regard to that aspect of the evidence presented by the mother. As I will subsequently explain, the mother has nonetheless satisfied me that her concerns for the health of the child are reasonable.
It is noted, by reference to the letter from the father’s solicitor dated 30 April 2020, to which I have earlier referred, that, in determining whether to commence these proceedings, the father has had regard to “the information he has obtained from government bodies which refute the mother’s position.” The father attaches to his Affidavit, in Annexure K-05, a copy of “Border Restrictions Direction (No. 3)” issued by Queensland Health on 2 April 2020. Paragraph 7 of that direction provides:
7. A person who is entering Queensland from another State or Territory by air in order to transfer as soon as possible to another flight is an exempt person if:
a. they remain in the airport until the time of transport to another flight; or
b. they self-quarantine in a hotel until the other flight; or
c. they are directed to self-quarantine by a relevant authority to a nominated premises and they must remain at that place until otherwise directed by the relevant authority.
I therefore accept that the restrictions imposed by the Queensland Government to restrict cross-border movements of persons into that State, during the period of the COVID -19 pandemic, do not restrict the mother from travelling with the child from Adelaide to Brisbane in order for the child to spend time with the father. However, that finding does not displace the mother’s concerns that clearly relate to the health of the child.
As I have noted, in bringing these proceedings, the father has relied upon “information he has obtained from government bodies.” In appropriate circumstances, such information is potentially admissible in Court proceedings.
Section 144 of the Evidence Act provides:
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
In this matter, after inviting submissions from the parties, in accordance with s 144(4) of the Evidence Act, I have had regard to the following information.
On 30 January 2020, the World Health Organisation declared the outbreak, of what was subsequently described as the COVID-19 virus, as a “Public Health Emergency of International Concern”.
The document titled “Coronavirus Disease (COVID – 19) Advice for the Public” issued by the World Health Organisation (“WHO”), last updated as at 29 April 2020, provides:
•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 COIVD-19 and it is more difficult to maintain physical distance of 1 metre (3 feet).
On 29 January 2020, under the Public Health Act 2005 (Qld), the Queensland Minister for Health and Minister for Ambulance Services made an order declaring a “Public Health Emergency” in relation to the coronavirus disease (COVID-19). The public health emergency area specified that order is for “all of Queensland”. The document noted that the duration of time that Queensland would be a public health emergency area has been extended by regulation to 19 May 2020 and “may be further extended.”
The principles underpinning the advice provided by the WHO, to which I have referred, are reflected in public health notices issued by each State government in Australia. For example, relevant to these proceedings, the guidance provided in “Border Restrictions Direction (No. 3)” issued by Queensland Health, to which I have earlier referred, includes the advice that “all travellers to Queensland including returning residents and workers should practice social distancing and risk mitigation measures such as remaining 1.5m away from other persons”.
The “Coronavirus Disease 2019 (COVID-19) CDNA National guidelines for public health units” issued by the Australian Government Department of Health, and current as at 1 May 2020, defines close contact as including “sharing of a closed space with a confirmed or probable case for a prolonged period (e.g. more than 2 hours)”. In respect to aircraft travel, the guidelines state that a close contact includes:
Aircraft passengers who [are] seated in the same row as the case, or in the two rows in front or two rows behind a confirmed or probable COVID-19 case.
In terms of the child’s or the mother’s potential exposure to “a confirmed or probable COVID-19 case” it is to be noted that records provided by the South Australian Department of Health on its website “Latest Updates on COVID- 19” show that, in the period from 10 March 2020 until 8 April 2020, there were 68 flights to or from Adelaide and other locations within Australia with “confirmed cases of COVID-19”.
Having regard to that publicly available information, I am satisfied that the mother believes “on reasonable grounds” that not allowing the child to spend time with the father, on the dates which are the subject of the Contravention Application, was necessary to protect the health of the child and the mother. 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. I will subsequently explain the concept of unacceptable risk in greater detail.
In terms of the broader operation of s 70NAE(5)(b) of the Family Law Act, it was also contended, by the mother, that the border restrictions imposed by the South Australian Government would require both the mother and the child to self-quarantine for a period of 14 days after their return from Brisbane to Adelaide.
In respect to that issue, the father attests, at paragraph 19 of his Affidavit, as follows:
I dispute [the mother] and her father's position. I have obtained information from both the Queensland and South Australian government that if the travel was by "compulsion of law" or under "compassionate grounds", the Covid-19 restrictions did not apply. I have made the following enquiries with the respective government bodies:
a. I called South Australia Health on 3 April 2020, and was advised that [the child, the mother] and I were still able to travel on compassionate grounds and in compliance with the orders; and
b. I called Queensland Health on 3 April 2020, and was advised that that [sic] [the child and the mother] were able to travel to Queensland, and would not need to self-isolate for 14 days. I was also advised that it would be necessary for [the child, the mother] and I to obtain a border pass in order to move freely between the states, but this would not be an onerous or difficult process.
The mother, on the other hand, contends that she has received conflicting advice and refers to an email that her father received from South Australian Police dated 23 April 2020 (Annexure H -1 to the mother’s affidavit) in which it is stated:
As discussed.
Condition 9 (compassionate grounds) of the cross border travel direction does not relate to Court Orders.
See below.
9. Compassionate Grounds
A person who is travelling to South Australia to visit a critically or terminally ill relative.
That evidence from both the father and the mother is hearsay and is not admissible to establish the truth of what each of the parties contend that they have been told.
As I will discuss, it has been unnecessary for me to determine this issue in light of the finding that I have made that the mother has a reasonable excuse for not having delivered the child to the father in the months of March and April 2020 as result of the reasonable concerns she has for the child’s health. However, had it been necessary to determine this issue, I would have determined it in favour of the mother for the following reasons.
The Emergency Management (Cross Border Travel No. 3) (COVID-19) Direction 2020 (“the current SA direction”), issued pursuant to s 25 of the Emergency Management Act 2004 (SA), relevantly provides, at cl 4 of the current SA direction, that the direction “applies to all people who arrive in South Australia from a place outside of South Australia.”
Clause 5 of current SA direction requires persons, who are other than a person who is defined in Schedule 1 to the Direction as an “essential traveller”, to self-isolate for a period of 14 days upon arriving in South Australia.
Schedule 1 to the Direction defines essential traveller’s under the subheadings:
1. National and State Security and Governance
2. Health services
3. The essential medical treatment
4. Transport and freight services
5. Skills critical to managing key industries or businesses
6. Emergency services workers
7. Cross-border community members
8. Passing through
9. Compassionate grounds
An examination of each of those definitions establishes that, other than possibly in respect to the definition of “compassionate grounds”, the other definitions do not apply to the circumstances of the mother upon returning to South Australia.
Clause 9 of Sch 1 provides:
Compassionate grounds
Persons who travel to South Australia to visit a critically or terminally ill relative or to attend the funeral of an immediate family member, provided that such persons self-quarantine during any period during which they are not visiting their relative or attending the funeral.
It is to be noted that there is no reference to entering the State pursuant to “compulsion of law” as contended by the father. For completeness, I would add that even if there had been such an expression included in the definition, I would not have found that such a definition applied to the circumstances of the mother. This is because, other than in circumstances set out in the Family Law Act, which are not applicable to the circumstances of this case, orders of the Family Court are to be construed as having effect in the context of the broader legislative framework implemented by respective State and Territory Governments. In that respect, in P v P (1994) 120 ALR 545 at [556] the Full Bench of the High Court said:
A law of the Parliament conferring jurisdiction upon a federal court in general terms will, in the absence of a clear legislative intent to the contrary, ordinarily be construed as not intended to confer jurisdiction to make an order authorising or requiring the doing of an act which is specifically prohibited and rendered criminal by the ordinary criminal law of the State or Territory in which the act would be done. Of course, the nature of the jurisdiction or the matters which have historically been determined in the exercise of that or a like jurisdiction may suffice to make clear such a contrary intent.
Quite apart from any question of constitutional power, the reason why a law conferring jurisdiction in general terms is to be construed in the manner indicated is that it is ordinarily to be presumed that it is the intent of the parliament that jurisdiction conferred in general terms will be exercised in the context of, and within the confines imposed by, the ordinary criminal law of the relevant State or Territory. That approach to construction is prima facie applicable to the provisions of the Family Law Act conferring welfare jurisdiction with respect to children of a marriage upon the Family Court.
[Citations omitted]
In other words, orders made by the Family Court of Australia or the Federal Circuit Court of Australia pursuant to pt VII of the Family Law Act are intended to operate in the context of the restrictions and sanctions imposed by State and Territory governments including those imposed for the protection of the broader community.
In terms of establishing a reasonable excuse as a result of the border restrictions imposed by the South Australian Government, the mother gave evidence that, in circumstances where she is employed as a casual rural worker for three and a half (3.5) days per week, she does not accrue leave entitlements. As a result, the mother would sacrifice two (2) shifts being equivalent to seven (7) days of income in that two (2) week period if required to self-isolate for a period of 14 days. Moreover, the mother attested to having requested her employer to provide her with 14 days off work in both the months of March and April and that her request was declined. In those circumstances, the mother contended that her employment would be prejudiced as a result of being required to self-isolate for separate periods of 14 days upon her return from Brisbane to Adelaide had she done so in the months of March and April.
The mother contended that the requirement to self-quarantine for those periods would cause financial hardship to her, firstly, as result of the real possibility of losing her employment and, secondly, in circumstances where she attested to receiving approximately $600 per week, has no savings, and has an outstanding debt relating to the family law proceedings that gave rise to the 2018 final Orders. In relating her financial circumstances, the mother acknowledged that she received child support payments from the father in the sum of approximately $63 per week.
As previously noted, in the circumstances of this case, it has been unnecessary to determine whether the potential adverse financial consequences for the mother resulting from the obligation to self-isolate would establish a reasonable excuse for not complying with the 2018 final Orders. This is because the health risks to the child in travelling by aircraft from Adelaide to Brisbane airport are such that they overwhelm all other considerations. I can indicate, however, that had it been necessary to determine the issue, I would have found that the mother had also established such a reasonable excuse, for the reasons set out in her Affidavit, relating to potential financial hardship, which I have summarised in these reasons for judgment.
The next issue to determine is whether the mother’s opposition to taking the child to Brisbane airport to spend time with the father was “not longer than was necessary to protect” the child in terms of s 70NAE(5)(b) of the Family Law Act. The father gave evidence that, rather than being specifically told by the mother, he had “the feeling” that the mother’s refusal to allow the child to spend time with him would be indefinite. There is, with respect, no evidence to support that contention. The mother has clearly indicated that, during the period of the COVID-19 pandemic, she is happy for the child to spend time with the father in Adelaide. In so far as the mother objected to the child spending time with the father on the two (2) weekends that are the subject of the Contravention Application, her reasons for doing so were because, in order for the child to spend time with the father on those two (2) weekends, it would have been necessary for the mother and child to have travelled from Adelaide to Brisbane and return. In those circumstances, the period that the mother did not allow the child to spend time with the father on those two (2) weekends was “not longer than was necessary to protect” the child.
It is to be noted that, in terms of the child spending time with the father in the future, the mother has specifically stated that she otherwise is happy to facilitate the child spending time with the father if arrangements can be made to ensure the health and safety of the child. That position is one which is entirely reasonable and, further, it is one that the Court encourages.
Whether the primary orders made on 5 December 2018 should be varied?
Section 70NBA(1) of the Family Law Act empowers the Court to make an order varying a parenting order within contravention proceedings. It does not limit the general power of the Court to vary an order under the Family Law Act: s 70NBA(3) of the Family Law Act. The power may be exercised whether the contravention is proven or unproven: s 70NBA(1)(b) of the Family Law Act.
The mother agreed that it was appropriate to amend the 2018 final Orders to facilitate the child spending time with the father in circumstances where it was safe for that to occur. Specifically, the mother contended that the Orders should be varied to provide for the child to spend time with the father in Adelaide and for make-up time to occur by way of the child spending an extra weekend per month with the father. She proposed that the make-up time should also be spent in Adelaide. The mother contended that this would address the safety concerns of the child travelling on an aircraft and relieve the burden that would otherwise be placed upon the child in having to travel to and from Adelaide and Brisbane twice during a one (1) month period. This was particularly so, the mother contended, in the context of disrupted flight schedules due to airlines reducing flights in the context of diminished travel during the COVID-19 period.
The father contended, on the other hand, that the Orders should be varied so that make-up time occurs by supplementing the four (4) day period that the child is to spend with him each month by an additional period of time corresponding to the amount of time that he has lost each month. In other words, the father contended that the child would only be required to travel from Adelaide to Brisbane once per month but he would stay with the father for a longer period of time each month.
Having regard to the parties’ respective submissions and with a view to attempting to prevent further disputation between the parties, I consider that, in the circumstances of this case, it is appropriate that the Court exercises its power pursuant to s 70NBA of the Family Law Act. This is despite the fact that I have found that the father has not established a contravention.
It goes without saying that, in considering what orders are appropriate, the Court will have regard to the paramountcy principle as set out in s 60CA of the Family Law Act and the relevant objects that are applicable to proceedings in relation to children as set out in pt VII of the Family Law Act.
Section 60B(1) of the Family Law Act sets out the objectives of pt VII, which are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes it clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”: s 43(1)(c) of the Family Law Act.
No party has suggested that it is necessary to revisit the issue of shared parental responsibility provided for in the 2018 final Orders.
As noted, s 60CA of the Family Law Act establishes the paramountcy principle. It provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA of the Family Law Act.
Section 60CC of the Family Law Act sets out a list of matters that the Court must consider in determining what is in the child’s best interests.
In Banks & Banks (2015) FLC 93-637 at 80,116, the Full Court outlined a practical approach to applying the considerations set out in s 60CC of the Family Law Act, in interim proceedings, in the following terms:
48. It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which section 60CC factors that are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial.
49. … there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
Whilst the Family Law Act requires the Court to consider all of the s 60CC factors and I have done so, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Family Law Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Family Law Act.
Both parties acknowledged the importance of the child having a meaningful relationship with both of his parents. I accept that to be the case. The primary issue in dispute is whether the 2018 final Orders should be varied in light of the existence, within Australia and elsewhere, of the COVID-19 virus. A related issue is whether the orders should also be varied to provide for the child to spend make-up time with the father to compensate for the time that the child has not spent with the father during the period of the COVID-19 pandemic.
The second primary consideration, as set out in s 60CC(2)(b) of the Family Law Act, is, as noted, whether there is an unacceptable risk of harm in the child spending time with either parent.
In Stott and Holgar [2017] FamCAFC 152, the Full Court, at [38], confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of that responsibility. In SS v AH [2010] FamCAFC 13 at [100], Boland and Thackray JJ said:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible, when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
It is to be observed that reference to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect children from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”: Bant & Clayton (2015) 53 Fam LR 621 at [99].
Where risk is alleged in interim parenting proceedings, a conservative approach is warranted that is “likely to avoid harm to a child”: Marvel v Marvel (2010) 43 Fam LR 348 at [375].
The task of determining whether an unacceptable risk exists is assisted by having regard to the following principles:
·In devising tests to determine whether unacceptable risk exists, the courts have endeavoured, in their efforts to protect the child's paramount interests, to “achieve a balance between the risk of detriment to the child from harm and the possibility of benefit to the child from parental access'': M and M (1988) FLC 91-979 at 77,081; B and B (1993) FLC 92-357 at 79,778.
·It is now well established that “unacceptable risk” can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]-[149].
·Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to balance the potential seriousness of the harm against the probability of its occurrence.[1] That is, there is an obligation on a trial judge to evaluate, not only the extent and nature of the harm that might befall the child if there is a future act of abuse, but also to evaluate the prospect or probability of an act occurring that would cause such harm to the child: N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier and Hepburn (2006) FLC 93-303 at 81,114 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]-[96].
·The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: Johnson and Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM titled “Unacceptable Risk: A Return to Basics.”[2]
·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close (Unreported Full Court, 25 June 1993).
[1]Dieter & Dieter [2011] FamCAFC 82 at [61].
[2] The Hon. John Fogarty AM, ‘Unacceptable Risk: A Return to Basis’ (2006) 20 Australia Journal of Family Law 249.
A useful discussion of risk in the context of the Court balancing the two primary considerations of the child having a meaningful relationship with both parents as against risks associated with the current COVID-19 pandemic is set out in the Canadian Family Court of the Superior Court of Justice in the matter of Ribeiro v Wright 2020 ONSC 1829; [2020] CarswellOnt 4090. In that decision, Pazaratz J noted, at [6] that, as is the case in Australia, “the health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19”.
His Honour further noted, at [8], that, as in Australia, “directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible”.
His Honour stated, at [10], that, while many aspects of our social interactions will be placed on hold as a result of the directives from government, “children’s lives – and vitally important family relationships – cannot be placed ‘on hold’ indefinitely without risking serious emotional harm and upset”. His Honour observed that, unless circumstances dictated otherwise, in these “troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever” and that “a blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child”.
His Honour, at [17], noted that each family will have its own unique issues and complications, and, at [21], each case will have to be determined on a case-by-case basis. In considering concerns raised in respect to the impact of the current COVID-19 pandemic, Pazaratz J, at [21], held that:
a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
b. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
That approach is one that is of assistance in this case. That is, despite the existence of the COVID-19 pandemic, it is important that all reasonable efforts are made for children to spend time with both parents consistent with taking a responsible approach in respect to mitigating against risks associated with the presence of the COVID-19 virus in the community and, specifically, the child coming into close contact with a carrier of the virus.
For reasons which I have set out, I am satisfied that the mother would have difficulty in ensuring appropriate social distancing, as recommended by the WHO and Commonwealth, State and Territory health authorities, in the event that she is required to travel to Brisbane with the child. The guidelines issued by the Commonwealth Department of Health, to which I have referred, confirm that risk on-board an aircraft would extend to being exposed to persons, carrying the virus, sitting in the same aisle as the child and, also to such persons sitting in the two (2) rows in front and behind the child.
The father contended that there was a “low risk” of the child in being so exposed to a person carrying the COVID-19 virus in the event that the child travelled from Adelaide to Brisbane and return by aircraft. His opinion is not supported by expert evidence. For the following reasons, I am satisfied that the risk is one that is unacceptable.
The authorities to which I have earlier referred confirm that a risk to a child may be unacceptable even if it is not established that it is probable that the child will succumb to physical harm. The possibility of harm needs to be assessed in the context of the consequence to the child if that harmful event did occur. In that context, I am satisfied that the child being exposed to the COVID-19 virus may have catastrophic consequences for the child. The fact that, in the months of March and April 2020, there were 68 domestic flights into or out of Adelaide airport where it has been confirmed that among the passengers was a person or persons infected with the COVID-19 virus, satisfies me that the risk, while not probable, is nonetheless one that should be taken very seriously.
In balancing the potentially catastrophic consequence for the child, if he were to be infected by the virus, as against that likelihood of the potential exposure to an infected person occurring, I find that the risk is one that is unacceptable.
To mitigate against that risk, I therefore propose amending Orders 21, 26 and 27 of the 2018 final Orders to provide for the time that the child spends with the father, during the COVID-19 pandemic, to occur in Adelaide. The orders will provide for the cost of the father’s travel to and from Adelaide to be shared by the parties.
The orders will also provide for there to be make up time with the father in respect to the time he has missed in March and April 2020. The provision will also include provision for make-up time in the event that the father is unable or unwilling to travel to Adelaide during the period that the COVID-19 travel restrictions are in place.
I prefer the proposal of the mother that the child spend alternate weekends with the father for such time as it is necessary to compensate for the weekends that the father has missed spending time with the child and that time should occur in Adelaide. The reason I have decided upon that course is that it would reduce the extent of interstate travel for the child and hence his exposure to persons who may be carriers of the COVID-19 virus. It would also relieve the child of the burden of having to travel from Adelaide to Brisbane and return twice per month in circumstances where the flight schedules, as evidenced by the flight bookings annexed to the mothers Affidavit, satisfy me that there is every possibility that the duration of the travel may be impacted by the need to make connecting flights with associated delays.
I am further persuaded that such an order would reduce the cost to the parties. This is because, rather than both parties being required to fund two (2) legs of their own flight to accompany the child, they would each be required to fund only one (1) flight. That is, as the father would be the only person travelling, it would be only his return flights that the parties are required to fund. This is in circumstances where I am satisfied that sharing an additional cost would present difficulty for the mother in the context of her current financial circumstances.
The question then becomes the duration of the relevant variation. In that respect, the father submitted that the variation should occur until such time as the current cross-border travel restrictions are revised with appropriate notice being exchanged between the parties as to when they contend that has occurred. I have found that the cross-border travel restrictions are a secondary consideration to the very real health concerns associated with the child engaging in aircraft travel. I will, therefore, provide that the variations will remain in place for a default period of six (6) months with the parties having liberty to apply in the event that, prior to that time, they believe, on reasonable grounds, that the risks associated with the COVID-19 pandemic have moderated to the extent that it is safe for the child to engage in interstate air travel.
Conclusion
For reasons that I have set out, the Contravention Application filed by the father on 30 April 2020 will be dismissed and the 2018 final orders will be varied.
I will, further, make Orders granting leave for the mother to make submissions as to costs if she so chooses.
Accordingly, I make orders as set out in the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 7 May 2020.
Associate:
Date: 7 May 2020
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