Is the requirement to quarantine (under the Public Health Act) a “reasonable excuse” to contravene a parenting order?

21 September, 2021
Is the requirement to quarantine (under the Public Health Act) a “reasonable excuse” to contravene a parenting order?

In Kardos & Harmon [2020] FamCA 328 (7 May 2020) McClelland DCJ heard an application by a father alleging that the mother had engaged in a contravention of a parenting order which provided for their three year old child to travel from Adelaide to spend time with the father in Darwin and/or Brisbane in 2020.

In March and April 2020, the Mother failed to send the child to spend time with the Father due to her concerns about the Covid-19 pandemic.  The Mother argued that she had a “reasonable excuse” not to comply with the parenting order due to her concerns for the child’s health, in addition to the requirement for her and the child to self-isolate for 14 days upon return to South Australia.

In March 2020, the first “Cross Border Travel Direction” was made in South Australia confirming that, other than essential travellers, all people arriving in South Australia must ensure they are able to reside and remain in one place for a period of 14 days after arrival.  A similar restriction was issued again on 14 April 2020.

The Father argued that he had contacted SA Health and been informed that the Mother and child could travel between Queensland and South Australia upon appropriate border pass being issued, and also access an exemption from the requirement to quarantine based on “compassionate grounds”.

The Mother (successfully) argued that essential travel did not include travel to ensure compliance with a parenting order, and that therefore she had a reasonable excuse not to comply with the order that required travel between Adelaide and Brisbane to facilitate spend time arrangements.

There were additional reasons relating to facts that did not support an established contravention (by the Father) that lead to the outcome of this case.

The presiding Judge found that the Mother had not contravened the order (as alleged by the Father), but also utilised their discretion to vary the existing orders so that the child could spend time with the Father in Adelaide, including additional makeup time for arrangements that could not proceed as defined.

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