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)… |
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- Kardos & Harmon [2020] FamCA 328
- Case
- [2020] FamCA 328
- Decision Date
CaseChat Overview and Summary
The court was required to determine how the child would spend time with and communicate with the father, considering the child's age and the geographical distance between the parents. Specifically, the court needed to address the terms of the existing orders regarding the father's time with the child, including the timing and location of that time, and the responsibilities of each parent in facilitating this contact. The court also had to consider provisions for make-up time should the father be unable to exercise his time as ordered, and the circumstances under which the parties might seek further orders regarding travel safety.
McClelland DCJ ordered a suspension and replacement of certain provisions of the December 2018 orders for a period of six months. The revised orders stipulated that upon the child turning three years of age, and if the father resided in the Northern Territory or more than 100 kilometres from the mother's South Australian residence, the child would spend time with and communicate with the father as agreed in writing, or failing agreement, during specific periods at the end of each month and for Christmas 2019, with such time to be spent in Adelaide. The mother was to facilitate the child's travel to and from the father's Adelaide accommodation and share the cost of the father's flights between Brisbane and Adelaide. Provisions were also made for make-up time in Adelaide if the father was unable to exercise his ordered time, and liberty to apply for further orders was granted if safety concerns regarding air travel were alleviated. The court also set a timetable for submissions concerning costs in contravention proceedings.
Orders
Orders of the court
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.
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.
2.
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.
3.
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.
4.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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