PANDELL & WALBURG (No.2)

[2020] FCCA 1853

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANDELL & WALBURG (No.2) [2020] FCCA 1853

Catchwords:
FAMILY LAW – Contravention – where compliance with earlier orders is impacted by a medical condition of the child and health concerns in respect of the COVID 19 pandemic – where the father files an Application in a Case in the COVID-19 list deposing that he has not physically seen the child since 22 March 2020 – where the mother provides medical evidence as to the child’s condition and concerns as to the COVID-19 pandemic – where the initial medical evidence is of a general nature – where it is directed that additional medical evidence be provided to the court – where the mother ultimately agrees that the child is to resume spending time with the father – where it is appropriate to also order a provision of makeup time between the father and the child – where no costs submissions were made by the parties at the hearing – where there are no orders as to costs.

Legislation:

Family Law Act 1975 (Cth) ss.60CA, 60CC, 70NAE, 117(1)

Joint Practice Direction 3: JPD 3 of 2020 – The COVID-19 List

Media Release – Statement from the Hon. Will Alstergren – Parenting Orders and Covid-19 (26 March 2020)

Applicant: MR PANDELL

Respondent: MS WALBURG

File Number: NCC 2074 of 2018

Judgment of: Chief Judge Alstergren

Hearing date: 29 June 2020

Date of Last Submission: 29 June 2020

Orders pronounced: 29 June 2020

Delivered at: Melbourne

Delivered on: 13 July 2020

REPRESENTATION

Solicitors for the Applicant: Gianacas Argiris Mcdonald

Solicitors for the Respondent: Beaudesert Legal

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Newcastle Family Law

ORDERS

1. The father shall resume spending time with the child on Thursday 2 July 2020, pursuant to order 3(a) of the orders dated 1 March 2019.

2. Order 3(b) of the orders dated 1 March 2019 be varied to provide that the father shall spend time with the child each Sunday from 9am to 6pm.

3. The father have make-up time with the child commencing next Saturday 4 July 2020, on 4 occasions as follows:

   (a)The father spend time with the child on Saturday 4 July 2020 from 9am to 1pm; and

   (b)The father spend time with the child each alternate Saturday thereafter, specifically on 18 July 2020, 1 August 2020 and 15 August 2020, from 9am to 4pm.

4. Judgment be reserved.

AND THE COURT NOTES THAT

(A)The medical evidence regarding the risks posed by COVID-19 in relation to a medical condition is insufficient to show that the withholding of the child was unreasonable.

(B)The letter from City B Paediatric Clinic dated 5 June 2020 differs from medical evidence provided in letters and medical certificates from the child’s general practitioner as annexed to the Affidavit filed by the father on 4 May 2020 and to the Affidavit filed by the mother in response on 8 May 2020.

(C)The court reserves the right to make orders in relation to make-up time in the event there is future non-compliance with parenting orders by the mother.

(D)The parties are attending Family Report interviews on 10 July 2020.

IT IS NOTED that publication of this judgment under the pseudonym Pandell & Walburg (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

NCC 2074 of 2018

MR PANDELL

Applicant

And

MS WALBURG

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant father, MR PANDELL (“the father”) brought an urgent Application in a Case on 4 May 2020 (“the Application in a Case”) in the COVID-19 List.

2. The father alleges that the respondent mother MS WALBURG (“the mother”) has withheld X born in 2016 (“the child”) since 22 March 2020 in breach of interim parenting orders made on 1 March 2019 and 24 October 2019.

3. In his Application in a Case, the father sought orders that, inter alia:

   …

   2. The mother comply with order 3 of orders dated 1 March 2019 and order 2 of orders dated 24 October 2019 and that the father resume spending time with the child in accordance with those orders; and

   3. The father have additional time from 9am Saturday to 4pm Sunday each week.

   …

4. On 8 May 2020, the mother filed an Affidavit in response (“the mother’s affidavit”) to the effect that the child has not been spending time with the father in accordance with existing orders, because she and the child have been self-isolating at home under the advice of the child’s treating General Practitioner, Dr C.

5. The Court was required to determine whether the mother had a reasonable excuse pursuant to s70NAE of the Family Law Act 1975 (Cth) (‘the Act’) for not complying with court orders, in the context of the COVID-19 pandemic.

Background

1. These proceedings commenced on 9 July 2018 when the father filed an Application for Final Orders.

2. On 1 March 2019, the Court made interim parenting orders. Order 2 provided that the child shall live with the mother, and order 3 provided that:

   …

   (3)    The father shall spend time with [the child] as agreed in writing, and if no agreement:

   (a) Commencing 7 March 2019 each Thursday from 4.30pm to 7.00pm and;

   (b) Commencing 10 March 2019 each Sunday from 9am to 4pm.

   …

3. On 24 October 2019, further interim parenting orders were made, including Order 3 which provided that the father spend additional time with the child as follows:

   ….

   (c)     If the mother cancels a Thursday period then the father’s Sunday time is extended to end at 6.30 pm;

   (d)    If the mother cancels a Sunday period then the father have makeup time on the next Saturday from 9.00 am to 4.00pm.

4. It is not controversial that the mother has failed to facilitate the child spending time with the father pursuant to the orders of the court. The mother maintains that she has a reasonable excuse for doing so as a result of the child’s previous health condition, that the immune suppressant nature of the treatment the child has received makes him more likely to be severely affected by COVID-19, and the health risk that the child spending time with the father would pose to the child.

5. The Application in a Case was first returnable on 5 May 2020 before a Registrar, where orders were made adjourning the matter to myself on 11 May 2020.

6. The matter first came before me on 11 May 2020 for a directions hearing.

7. By orders dated 11 May 2020, I directed that:

   …

   2. The parties procure an examination and opinion from a specialist at City B Paediatric Clinic regarding the child as soon as possible.

   3.  Within 7 days of these orders, the respondent mother provide any further medical evidence from Dr C of City B Paediatric Clinic regarding whether the child has presented with any further symptoms of a medical condition and any further treatment the child has been undergoing. 

   …

8. The matter then returned before me on 29 June 2020.

Applicable Law and Directions

1. The COVID-19 List was established in April 2020 to swiftly deal with urgent COVID-19 applications on a national basis (Joint Practice Direction 3: JPD 3 of 2020 – The COVID-19 List).

2. The purpose of the COVID-19 List is to facilitate quick and effective access to justice in circumstances where COVID-19 issues may have precluded a strict adherence to existing court orders.

3. The Media Release from the Court (26 March 2020) relevantly provided directions to parents in the current COVID-19 crisis:

   …

   2. Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements.  This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders.

   …

   11. At all times, parents or carers must act reasonably. To act reasonably, or to have a reasonable excuse for not complying with Court orders, is a matter that is considered by the Court pursuant to s70NAE of the Family Law Act 1975 (Cth).

   12.    It is imperative that, even if the orders cannot be strictly adhered to and are varied by the parties, the parties ensure that the purpose or spirit of the orders are respected when considering altering arrangements, and that they act in the best interest of the children.

   …

4. Pursuant to s70NAE(5) of the Act, a person 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).

Evidence

Affidavit of the Father

1. The father’s affidavit states that he had not spent any physical time with the child since 22 March 2020 (at [10]), due to the mother preventing the child from spending time with the father, in person, due to COVID-19 concerns (at [21]). The father also maintains that the child has no health issues (at [13]).

2. Annexure A of the father’s affidavit contains a medical certificate dated 26 March 2020 by Dr C of D Medical Clinic stating the following (with the formalities omitted):

   [The child] is identified as a person at risk of severe disease if he contracts COVID-19. As such, I have recommended [the child] home isolate and socially distance during this current COVID-19 pandemic. This includes staying home with primary carer and not attending visits with his Father.

3. Annexure B of the father’s affidavit provided a copy of an email sent by the father’s solicitors to the mother’s solicitors requesting that there be a resumption of time between the child and the father.

4. Annexure C of the father’s affidavit provides a medical certificate from D Medical Clinic dated 27 April 2020 by Dr C stating the following:

   I have met with both of [the child’s] parents to discuss his current health. I have confirmed that they both understand that [the child] is at risk of developing severe COVID-19 if he were to be exposed and as such I recommend that [the child] remain in social isolation with his primary carer.

Affidavit of the Mother

1. The mother’s affidavit at paragraph [6] stated that:

   In March 2020 I became very concerned for [the child’s] health with the COVID-19 pandemic.

2. The mother’s affidavit further deposes (at [6]) that the child was diagnosed with a medical condition in December 2018, she recently sought medical advice to ascertain how COVID-19 would affect the child’s health in light of the child’s diagnosis. The mother further deposes that she had concerns because the mother and child spend time with the maternal grandmother, who is undergoing chemotherapy treatment and has been self-isolating during the COVID-19 pandemic.

3. The mother annexed a number of letters and medical certificates from Dr C in support of her affidavit.

4. In particular, Annexure ‘W1’ contained a letter dated 5 May 2020 from Dr C to the court. This letter relevantly provides (with the formalities omitted):

   Because [a medical condition] is immune mediated, it may affect the way [the child] fights off infections, which may include COVID-19, if he were to be exposed. He is currently having monthly checkups with me to ensure this condition has cleared completely, but he is still having some symptoms, so we assume the condition is still active.

   On my advice, [the child] has been socially isolating with his mother since 22/03/2020. His mother is not attending work to allow the family to protect [the child].

   …

   I met with Mr Pandell on 09/04/2020 and explained the nature of [the child’s] medical condition and my recommendations, and Mr Pandell indicated that he understood my advice. If Mr Pandell were able to guarantee that he is completely socially isolating himself throughout the pandemic, thus reducing his risk of transmitting the virus to [the child], it may be reasonable to resume visits prior to the end of the pandemic. If he cannot maintain social isolation, then I think it poses an unacceptable risk to [the child’s] health and his family’s health, and thus visits should be avoided.

   …

5. Pursuant to orders dated 11 May 2020, the Court received an updated report from City B Paediatric Clinic dated 5 June 2020 (‘the updated report’). The medical evidence contained in this report differs from the evidence in the earlier medical certificates referred to above.

6. Relevantly, the updated report provides that, inter alia:

   …

   Children with recurrent (a medical condition) are not currently considered “high-risk” for severe COVID-19 related illness. Children with recurrent (a medical condition) and other rheumatological conditions requiring low level immunosuppression with medications such as Methotrexate are being advised that attending school is safe and that family members and contacts should comply with government implement social distancing recommendations. Should there be a significant second wave, [the child] and family should abide to government social distancing recommendations. If [the child] were to develop significant kidney involvement requiring treatment, recommendations would change in regards to his level of risk and this would be guided by the treating physical at the time.

   …

   Parental response during the COVID-19 pandemic have been variable and understandable. It is reasonable that parents were extra-cautious during the early phase due to the unknown nature of the disease, serious nature of the government response, paucity of research regarding risk factors, high case fatality rate amongst adults, and difficulty in assessing absolute risk due to issues related to media/social media coverage. 

   …

7. The updated report recommends, among other things, 3 monthly urinalysis and blood pressure measurement until the joint pains have resolved.

8. The updated report also states that “[the child] is otherwise for the most part well” and that “on examination (24/6), [the child] appeared well”.

9. At the hearing on 29 June 2020, the father’s solicitors indicated that the mother’s solicitors sent to them an email around 11am on Sunday 28 June 2020 indicating that, upon review of the updated report, the mother is prepared for the child to resume spending time with the father, and that the mother previously ceased time between the father and child because this was in the best interests of the child.

Conclusion

1. As the fact that the mother has contravened the orders of 1 March 2019 and 24 October 2019 is not in issue, I am required to decide if the mother had a reasonable excuse for withholding the child from the father since 22 March 2020.

2. Whilst the initial medical evidence provided by the father and mother was somewhat vague and required further clarification, in substance, the medical advice provided to the mother was that, as a result of a pre-existing health concern, the child was at greater risk of suffering an adverse reaction to a possible COVID-19 infection. In those circumstances I find that the mother, at that stage, had a reasonable basis for not allowing the child to spend time with the father. . Accordingly, I find that the mother has a reasonable excuse for contravening the interim orders up until 5 June 2020 under s70NAE(5) of the Act.

3. However, the same cannot be said of the mother continuing to withhold the child from 5 June 2020 (or when she received the updated report) until 29 June 2020.   

4. The further medical evidence dated 5 June 2020 from Dr C of City B Paediatric Clinic indicates that the child is not at high risk during the COVID-19 pandemic.  

5. From 5 June 2020 or when the updated report came to the mother’s attention, it was obvious that there was no reasonable basis for the mother believing that it was necessary to withhold the child from the father, after that date, on health grounds. The mother therefore lacked a reasonable excuse for so withholding the child after 5 June 2020.

6. The fact that she did so is unfortunate. The Court was informed that the birthday of the child fell in 2020, and the birthday of the father fell in 2020. It was not until 2020 that the solicitors for the mother communicated to the solicitors for the father that the mother was agreeable to the child’s time with the father resuming. This meant that the father was not able to spend time with the child on either important occasion.

7. Following the updated report dated 5 June 2020 and with the mother’s agreeance, there is no reason why the child cannot resume spending time with the father pursuant to the parenting orders dated 1 March 2020.

8. The father sought orders for make-up time in relation to the 14 weeks he has not spent time with the child and these orders were supported by Independent Children’s Lawyer.  14 weeks’ worth of make-up time would mean make-up time each Saturday effective until the final hearing, which is listed on 6 August 2020.

9. Pursuant to s60CA of the Act, in considering what, if any, orders for makeup time are appropriate, I am required to have regard to the best interests of the child as set out in s60CC of the Act. I have had regard to all of the considerations set out in that section but the most relevant considerations are the benefits to the child in having a meaningful relationship with his father consistent with the maturity of the child.

10. Extensive periods of make-up time with the father would be difficult for the child in this matter, who is 4 years old. However, in the circumstances, it is appropriate that some make-up time should be provided, but not to the extent sought by the father.

11. On recommendation of Independent Children’s Lawyer, it is most suitable for the make-up time to occur on a fortnightly basis, which will see the re-introduction of the child to the father on Saturday in each alternate week for 4 weeks. The first of those Saturday make-up time occasions should not be for the entire day as the child has to get used to having the extra time with his father.

12. The make-up time will therefore occur on 4 occasions on alternate weekends, commencing Saturday 4 July 2020, particularly in light of the fact that family report interviews commence on 10 July 2020.

13. I am also satisfied that going forward, whilst not ordering greater make-up time as sought by the father than the 4 weeks above, that order 3(b) of the orders dated 1 March 2019 should also be varied to provide that the father shall spend time with the child each Sunday from 9am to 6pm. Whilst this in a small increase, it does allow the father to have some further time with the child until further order.

14. I am satisfied that both parents in this matter have the best interests of the child at heart.

15. For reasons which I have explained, I am also satisfied that the orders I make today are in the best interests of the child and in the spirit of the court orders dated 1 March 2019 and 24 October 2019.

Costs

1. In his Application in a Case the father sought that the mother pay his costs of and incidental to this application. No further submissions in respect of costs were made by either the father or the mother at the hearing.

2. In these circumstances, I find that it is appropriate for each party to the proceeding to bear their own costs, pursuant to s117(1) of the Act.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Chief Judge Alstergren

Associate: 

Date: 13 July 2020