610 Glenferrie Road, Hawthorn VIC 3122, Australia

Can a contravention of Orders be excused by the Covid 19 health concerns of one party?

Friday 19th March 2021

By: Georgina Gregory

This judgment concerned a Father’s contravention application in relation to a parenting order made in 2018, providing for a 3 year old to spend 4 days per month with the Father. 

The 2018 orders provided that the Mother was to deliver the child to the Father at Darwin airport or, if 90 days’ written notice were given to the Mother, Brisbane airport.  The Father was to return the child to the Mother at Adelaide airport at the end of his time. 

The child and the Mother lived in Adelaide, whilst the Father lived in the Northern Territory but relocated to Brisbane in January 2020.  The parties had subsequently agreed that in March and April 2020, the child would spend time with the Father in Brisbane.

The child did not spend time with Father in March or April 2020, due to the Mother’s concerns about the COVID-19 pandemic.  The Father contended that the Mother had no reasonable excuse for failing to deliver the child to Brisbane, whilst the Mother said that she had a reasonable excuse, due to her concern for the child’s health and the effect of border restrictions which would require her and the child to self-isolate for 14 days after their return to South Australia. 

The Court concluded that the Father had not discharged his onus of proving that he had provided 90 days’ written notice requiring the Mother to deliver the child to Brisbane. 

The Court considered whether the Mother had a reasonable excuse for contravening the 2018 orders, by taking into account various publicly available documents in relation to COVID-19. 

At paragraph 66, McClelland DCJ noted:

“I…. accept that the restrictions imposed by the Queensland Government to restrict cross-movement 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…. 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…”.

The Court concluded that the Mother had a reasonable excuse for not having delivered the child to the Father in the months of March and April 2020, due to her concerns about the child’s health.

The Mother also sought a variation of the 2018 orders to enable the child to spend time with the Father in Adelaide and for compensatory time to occur in Adelaide.  The Father sought that this order be varied to enable the child to spend a longer period each month with him in Brisbane to make up for any time lost.  

In considering these competing proposals, the Court referred to a decision of the Canadian Family Court of the Superior Court of Justice in the matter of Ribeiro & Wright (2020).  In that decision, the Canadian Judge Pazaratz noted, “the health, safety and wellbeing of children and families remains the Court’s foremost consideration during COVID-19…and that 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”.  Also in that Canadian judgment, the Judge stated 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”

In this case, the Court noted that, despite 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 COVID-19 virus in the community and, specifically, the child coming into close contact with a carrier of the virus”. 



The contravention application was dismissed and the 2018 order was varied to facilitate the Father spending the ordered time with the child in Adelaide and, if that were not possible, the child to spend compensatory time in Adelaide with the Father. 

Ready to Take Steps Towards Your Future? Call us on 03 9813 1111 or email your details.
Contact us

We Tell Your Story

We listen to your story and advocate for your best interests. Our lawyers are committed to supporting you to achieve the best possible outcome in your family law settlement.

We view Court as the last resort, not a first resort.

We succeed in resolving approximately 95% of our cases before court proceedings are issued, saving our clients unnecessary stress, cost and time.

Your first meeting carries no obligation to proceed.