The topic of contravention has been a long-established issue plaguing the Family Law Courts. Pursuant to s 70NAC of the Family Law Act 1975 (Cth) (‘Family Law Act), a contravention of a parenting order occurs where a person has ‘intentionally failed to comply with order’ or, ‘made no reasonable attempt to comply with the order’.ⁱ A breach of parenting orders is considered an extremely serious contravention in the Family Courts.

The objects of the Family Law Act and principles underlying ensure that a parent who is entitled to spend time with their child ought to be able to do so.ⁱⁱ Children have the right to a meaningful relationship with both parents regardless of their marital status, and parents should jointly share and fulfil their parental responsibilities in relation to their children.ⁱⁱⁱ

In the current state of turbulence amidst the COVID-19 (Coronavirus) pandemic, compliance with parenting orders is threatened. Parents will be understandably concerned for their child’s welfare. Parenting disputes are already brimming with high levels of stress and conflict and absent children are additional cause for concern.

Of course, Family Courts determine parenting orders without global pandemics in mind.^iv These orders do not account for changing circumstances in which children’s activities are cancelled, illness is rampant, and isolation measures are taken. With fears that children may be at risk of serious illness, both in contracting the Coronavirus themselves or transmitting it onto others at risk, one parent may refuse to hand over the child. Differing family viewpoints are already a contentious point between parents.

However, as Jacky Campbell writes, ‘a complaint that one parent does not have the same standards of hygiene as the other parent is unlikely to be a reasonable excuse’.^v

The ‘Reasonable Excuse’ Defence

There are non-exhaustive circumstances in which a ‘reasonable excuse for contravening’ an order under s 70NAC may apply.^vi Whether the ‘Court is satisfied that the respondent ought to be excused in respect of the contravention’ rests on the determination of the actions of the respondent being necessary to protect the health and safety of a person and was no longer than necessary.^vii

The term ‘reasonable excuse’ depends on the circumstances of the individual case in question, and the purpose to which the defence of ‘reasonable excuse’ is to be applied as an exception.^viii Largely relying on judicial discretion, the defence relies on the Courts to determine the effect of the provision.^ix

Whether the parent believes that they are acting in the best interests of the child is irrelevant to such a determination.^x

As confirmed by In the Marriage of Gaunt,^xi ’[a] party’s subjective view of the rights and wrongs of a decision cannot be relied on as ’just cause or excuse’ or ’reasonable cause’.^xii

Contravention and Coronavirus: Does the ‘Reasonable Excuse’ Defence Apply?

On current medical and government advice, an individual must self-quarantine when they have a confirmed case. Otherwise, they should practice good hygiene and social distancing.^xiii If the parent, child, or anybody else that the parent or child has close contact with is not diagnosed with or tested for coronavirus, then shared parenting may continue as normal.

There are naturally many questions and concerns that follow. What happens when a parent lives in a town where an outbreak occurs? What if a parent was exposed to an infected person but appears to be healthy? What happens if one parent is infected with Coronavirus? During these uncharted times, the answers are not entirely clear.

If a parent does not comply with parenting orders that the Court has imposed, they are, by definition, in contravention of those orders. This is where the ‘reasonable excuse’ defence applies. As the defence is discretionary, it can be suggested that the likelihood of infection must be real or certain to threaten the ’health and safety of a person (including the respondent or the child)’.^xiv

However, it is important for parents to understand that Coronavirus is no simple illness. Towns and schools have closed globally, governments are mandating containment measures, and medical advice instructs quarantine and self-isolation. Though parents ought to experience care of a child when the child is unwell, the Coronavirus impact forms a strong basis for the ‘reasonable excuse’ defence to apply.

The circumstances in each individual case will affect the determination of whether a reasonable excuse applies. While the concerns surrounding the relationship between shared parenting time and transmission of infection are arguably real, some parents may feel they can take advantage of the Coronavirus pandemic as a ‘tool of control’.^xv

If a parent refuses to comply with orders based on concerns that were unlikely to materialise or proven unfounded, or breached orders longer than necessary, there may be real repercussions if the matter is heard before the Court. Judges will use their discretion to determine whether parents behave sensibly or deviously.

If the child’s primary parent or the child themselves are exposed and infected to Coronavirus, it makes sense for both individuals to be quarantined to avoid spreading the virus to an uninfected home. This may constitute a ‘reasonable excuse’ to a contravention of parenting orders. The parent in question should still facilitate conversation and video calls between the other parent and the child.

What might parents expect as the COVID-19 crisis continues?

Parents who cannot cooperatively parent will find their parenting arrangements most impacted by the Coronavirus. The characteristics of the disease are changing rapidly and parents must regularly communicate their concerns in a civil fashion. The impact of this disease is unprecedented and parents understandably want to protect their children.

The implication of s 70NAEC of the Family Law Act is that regardless of these concerns, a parent who refuses to comply with their parenting orders will be in contravention of those orders. A parent that is isolating or quarantining their child must make every effort possible to continue facilitating a relationship with the other parent.^xvi That parent will need to show the Court that they did their best to communicate to the other parent all of their concerns, and the reasons behind their behaviour.

The best interests of the child is the paramount consideration for the Court.^xvii While they will determine those interests based on the individual circumstances of the particular family, they would likely be sympathetic to the devastating effect that Coronavirus has had thus far on the Australian community. Where parents can demonstrate that they have not simply cut the other parent out, the Court is likely to uphold the ‘reasonable excuse’ defence where a contravention of orders has been made out.

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^i. Family Law Act 1975 (Cth) s 70NAC(a).
^ii. Childers and Leslie [2008] FamCAFC 5, [33].
^iii. Family Law Act 1975 (Cth) s 60B.
^iv. Jacky Campbell, CCH, Family law – 15 tips for advising family law clients in a coronavirus pandemic (online at 18 March 2020) 1.
^v. Ibid.
^vi.  Family Law Act 1975 (Cth) s 70NAE(1).
^vii. Family Law Act 1975 (Cth) ss 70NAE(2)(b), 70NAE(4)–(7).
^viii. Taikato v R (1996) 186 CLR 454, 464.
^ix.  Taikato v R (1996) 466.
^x. Ongal & Materns [2015] FamCAFC 68, [47].
^xi. (1978) 4 Fam LR 305.
^xii.  In the Marriage of Gaunt (1978) 4 Fam LR 305, 308.
^xiii.‘What you need to know about coronavirus (COVID¬–19)’, Australian Government Department of Health (Web Page, March 2020).
^xiv. Family Law Act 1975 (Cth) s 70NAE(4)–(7).
^xv.  Reg Graycar, ‘Family Law Reform in Australia, or Frozen Chooks Revisited Again?’ (2012) 13(1) Theoretical Inquiries in Law 241, 267.
^xvi.Rhiannon Shine, ‘Coronavirus outbreak poses dilemma for parents with shared custody wanting to protect children’, ABC News (online, 18 March 2020).
^xvii. Family Law Act 1975 (Cth) s 60CA. "