There is no doubt that the COVID-19 pandemic has raised some pretty tricky issues and dilemmas in family law. A common challenge is determining when it is reasonable to breach a parenting order if it means protecting a child from the risks of COVID-19.

A recent decision of the Family Court examined this very issue. In this case, the mother of a 4-year-old child breached parenting orders by withholding the child from spending time with the father, on the basis that the child had a pre-existing health concern, which made the child more vulnerable to suffering an adverse reaction if infected by COVID-19. The mother's GP had prepared a medical certificate in support which recommended that the child stay at home with the mother, and not spend any time with the father.

The case

The father did not believe the child was at any particular risk and he filed an urgent application against the mother for contravention of the parenting orders in the Family Court's "COVID-19 list". An updated medical report was obtained: it differed from the medical certificate that had been prepared by the mother's GP and provided that the child was not considered at high risk for a severe reaction to COVID-19. As such it was considered reasonable for the child to attend school and ordinary contact with family members in compliance with the government recommendations.

The outcome

The Court found that the mother had acted reasonably in withholding the child based on the first medical certificate, however once the updated medical certificate had been obtained, it was no longer reasonable for her to withhold the child from seeing the father. The Court made orders in favour of the father including orders for the father to have some "make up time" with the child, for the time lost.

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