Any parent, especially during this COVID-19 pandemic, wants to protect their children from the risk of being infected and further becoming sick. But is the fear of potential infection enough to be considered an unacceptable risk to the child and thus minimise the child’s time with the other parent?

Biondi & Koen [2020] is a recent case which considered unacceptable risk posed to the child in having overnight time with her father amidst the COVID-19 pandemic.

Background:

The Father is a 39-year-old business proprietor and the Mother is 38 years old and unemployed. The Mother was previously an international student from Brazil. On April 2016, the Mother and the Father had sexual relations resulting in the conception of X (the child).

On February 2017, they separated. The Mother had contemplated going back to Brazil with X but the Father contended in court that should the Mother leave for Brazil, X should stay with the Father. This suggestion was supported by the Independent Child Advocate. Later, in December 2019, all parties agreed that X should not be separated from the Mother.

The relationship was one of mistrust and poor communication between parents.

The Mother (applicant) made an application to suspend the introduction of overnight time between X and the Father.

Unacceptable risk

The Court, as part of its assessment of unacceptable risk, must consider the need for the custodial parent/primary caregiver to be assured of the child’s protection. However, this is only to the extent that the concerns are reasonable.

“When it appears on the whole of the evidence that such a belief is entirely irrational and baseless, the genuineness of the belief of the custodial parent will clearly be open to doubt.”

– Russel & Close at [32]-[34].

In Biondi, the Mother argued that X would be contaminated if she stayed overnight with the Father during the current circumstances (i.e. a pandemic). However, the Father was able to show the Court that he had undertaken reasonable measures and precautions such as limiting visitors to only his sister, avoiding face-to-face contact with his employees and disinfecting his home prior to visitations. Thus, the Court found that the Mother’s fears of contamination were genuine but were unreasonable and therefore, would hold little weight in their assessment of unacceptable risk.

The Court held that the Father would have overnight time with X every Wednesdays, and allowed the Mother to call in at 5pm for a 5-minute chat with X.

Implications:

If you are looking to contest, vary or make an application for a parenting order, it is always good to note that a potential risk of harm to the child will not always be considered an unacceptable risk by the Court. The Court has a myriad of considerations including the primary caregiver/custodial parent’s concerns over potential risks of harm to the child. However, these concerns, if considered baseless, irrational or unreasonable by the Court, will have little to no weight in relation to implementing parenting arrangements – such as an overnight with a parent.

The above information is intended as general information and is not intended to be relied on as legal advice. If you are considering applying for parenting orders or are looking to vary current parenting orders, contact one of our experienced family law solicitors on (02) 9920 1787 to discuss how we may assist you to achieve a favourable outcome. Our principal is named as leading Family and Matrimonial Lawyer of the Year by Acquisition International in their 2019 leading Adviser Awards. Pannu Lawyers are conveniently located in Blacktown and practice extensively in Family Law, Criminal Law, Commercial Law and Conveyancing.