Is Traveling During COVID An Unacceptable Risk To Children?

The ‘unacceptable risk’ test is a test used by courts that are dealing with parenting matters. It is generally used to determine the seriousness of allegations of violence and abuse. The test requires the court to determine if an unacceptable risk has been established, and if so, whether that risk can be sufficiently mitigated. During COVID, the courts have also considered whether a parent was exposing a child to an unacceptable risk through exposure or potential exposure to the virus. In cases like this, the courts balance the benefit of the children having a meaningful relationship with both parents against the need to protect children from harm, with greater weight being placed on the need to protect them from harm.

Is air travel an unacceptable risk?

Courts have considered whether air travel during the pandemic posed an unacceptable risk to children, even though the risks of harm were only possibilities.

Kardos and Harmon

In the matter of Kardos and Harmon [2020] FamCA 328 it was alleged that the mother had contravened parenting orders by failing to ensure the child travelled by air from Adelaide to Brisbane to spend time with the father.

The mother believed that her actions were necessary to protect the child from being exposed to COVID during the flight. The court held that the mother reasonably believed that preventing the child from travelling by air was necessary as she would not have been able to maintain social distancing during the flight and there was an unacceptable risk that the child could come into close contact with a person infected with the virus.

The court was satisfied that possibilities were a legitimate basis for finding risk, provided there was a proper basis for those possibilities. To maintain the relationship between the father and the child, but to address the risk, the court held that the child would spend time with his father for the next six months.

Another issue raised by the mother in this matter was border restrictions imposed by state governments and the need to quarantine for 14 days after travelling between states. The mother claimed this would cause her financial hardship. On this issue, the court said at paragraph 91 of the judgement:

“As previously noted, in the circumstances of this case, it has been unnecessary to determine whether the potential adverse financial consequences for the mother resulting from the obligation to self-isolate would establish a reasonable excuse for not complying with the 2018 final Orders. This is because the health risks to the child in travelling by aircraft from Adelaide to Brisbane airport are such that they overwhelm all other considerations. I can indicate, however, that had it been necessary to determine the issue, I would have found that the mother had also established such a reasonable excuse, for the reasons set out in her Affidavit, relating to potential financial hardship, which I have summarised in these reasons for judgment.”

Banham and Banham

In the matter of Banham and Banham [2020] FCCA 1201, the court was prepared to find that air travel presented an unacceptable risk.  The court was prepared to suspend parenting orders which would have required children to travel by air from Melbourne to Brisbane to spend time with their mother, for the duration of stage three of the Victorian government’s “Stay at Home” restrictions.  Orders were made for make-up time with the mother once restrictions were lifted and for the children to spend time and communicate with their mother electronically.

Asking the court to suspend orders because of unacceptable risk

If you are asking the court to accept that the suspension of time is justified, then you should ensure that medical evidence is available to support your position. Where parents support their position with valid medical evidence, judges may be more inclined to suspend time for the period that the children might be exposed to health risks.

In the matter of Collingwood and Collingwood [2020] FamCA 390, the mother sought to suspend the children’s time with the father on the basis that two of the three children suffered from asthma and recurrent viral infections and were at increased risk if they contracted COVID.  The mother provided medical evidence from the children’s doctor recommending that she and the children self-isolate while there were ongoing cases and limit contact to members of their household only or for medical treatment or emergencies. The court was satisfied that the suspension was justified in the short term and made orders that the children spend time and communicate with the father via Zoom video conferencing and adjourned the matter for a month.

It is important that you consider the best interests of the children prior to making any decisions about whether or not your children should travel during the current pandemic and seek legal advice if you are unable to reach an agreement with the other parent about such travel.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.