By Sophie Buckland, Law Clerk

Reasonable excuse to noncompliance of final parenting orders during COVID-19 pandemic

The case of Pandell v Walburg asked the court to consider whether concerns about a child’s health were reasonable grounds for excuse to contravene interim parenting orders, under s70NAE(5) of the Family Law Act 1975 (Cth).

Mr Pandell (father) and Ms Walburg (mother) had a child together in 2016, and after separation, had interim parenting orders in place since 1 March 2019, which allowed the child to spend an allocated amount of time with Mr Pandell.

Mr Pandell alleged that Ms Walburg, as the child’s primary carer has not let him visit the child since 22 March 2020, around the beginning of the COVID-19 global pandemic.

Little was known about the full scope of the effects of COVID-19 at the beginning of the pandemic. The child in this case had a previous health condition, requiring an immune suppressant. In early medical certificates presented in Mr Pandell’s affidavit, dated from March and April, the child was identified as “at risk of severe disease if he contracts COVID-19”. Further to this, the doctor issuing the medical certificates recommended that the child remain solely in the care of Ms Walburg as the primary carer, and that both her and the child self-isolate at home.

In June 2020, an updated report was made by the same medical clinic. This stated that after further examinations of the child, and further knowledge about the interplay between the medical condition the child has and COVID-19, attending school is safe, and family members should comply with the current government social distancing recommendations.

The matter for the court was to determine whether or not Ms Walburg had grounds to deny the child’s father visitation, under s70NAE(5) of the Family Law Act 1975 (“Act”).

Section 70NAE of the Act provides the court with meaning for a reasonable excuse for contravening an order. Ms Walburg would have grounds under sub-section 5 if she could prove that she believed on “reasonable grounds” that not allowing the child to spend time with Mr Pandell was necessary to protect the health of the child and that the period in which Mr Pandell did not see the child on these grounds was not longer than necessary.

There were two periods of time in question. The time prior to receiving the updated medical advice in June and the time thereafter.

The first period:

His Honour CJ Alstergren found that, on the basis on the medical advice provided to the Ms Walburg at the time that the child would be at adverse risk of COVID-19 infection, she had a reasonable excuse for contravening the interim orders, pursuant to s70NAE(5) of the Act.

Second period:

Based on the updated report by the medical clinic sent to both parents, the new medical advice was that the child was no longer at high risk of COVID-19. Therefore, there was no reasonable basis for contravening the interim orders. His Honour noted that the father and child missed out on spending important occasions together, including their respective birthdays. Therefore, the second period contravened the interim family orders.

Although Mr Pandell sought extensive make up time with the child, the Independent Children’s Lawyers recommended fortnightly make up sessions, which was ordered by the court. Although the COVID-19 pandemic impacted interim parenting orders, the current law was able to be flexible and malleable to current circumstances, as reflected in this case and its outcome.