Corona Virus (COVID-19) is creating a lot of fear and uncertainty for many parents and families, not only separated families. But, as millions of people around Australia attempt to adhere to the principles of social distancing and self-quarantine, there is another layer of complexity added to the situation when the definition of “immediate family” is not so clear for children who are part of more than one household.
How should parents navigate the rapidly changing do you successfully go about practising the recommended social distancing measures? Are you allowed to withhold your Children from the other parent during this time? What do you do if you don’t have any Orders in place
This situation is stressful for everyone, parents and children alike. Many parents are now facing working from home or juggling existing work arrangements whilst attempting to home school children. Others may have lost their jobs all together and are having to face the reality of a significantly reduced income. Our Children are cooped up indoors and unable to engage in any of their regular sporting activities or socialise with friends, and have none of their usual outlets to blow off steam and self settle. Children do not need to be exposed to parental fights on top of this all – what they need is stability, reassurance and connections with those who love them the most.
We know that dealing with your other co-parent may not be easy, but we strongly urge you to keep every decision you make during these times child focused. At the end of the day, once the pandemic has passed, Courts look out for the best interests of Children. The Best Interests of Children are prescribed by Section 60CC of the Family Law Act (1975) Cth., and whilst times are rapidly changing in the face of the COVID-19 situation, the objects of the Act have not. The best interest of a child still include (amongst a long list of other factors) the right to a meaningful relationship with both parents, coupled with the need to be protected from a risk of psychological etc harm.
The Federal Circuit Court and the Family Court of Australia are doing their best to continue to facilitate matters via telephone and video link, however emergency matters have been prioritised in the short term, and these do not generally include conventional live with/ spend time with Applications – so you and your co-parent are going to need to work things out together, or with the assistance of lawyers and mediators.
Once the pandemic has passed, and the Court resumes operating more conventionally, we highly doubt that Registrars and Judges will be pleased with parents who have not put their own interests before their Children’s during this time and refused to cooperate with a rational parent – so please, choose to be the reasonable parent in this situation.
In these unprecedented circumstances, we are unable to provide you with an exhaustive list of everything you and your co-parent should be doing, but we would like to provide you with a list of things that you and your co-parent should consider. Print them out, make a cuppa and suggest a phone call or a facetime when the kids are in bed, or not around, and try and come up with a plan of attack together;
- Social Distancing and Court Orders
If you have parenting Orders in place, until a social isolation order is made by the Government or your health professional, you can not with hold your children from the other parent unless you feel that your children are at risk of harm. The general risk of children being exposed to COVID-19 would likely not be considered a significant risk of harm and grounds to prevent children spending time with the other parent, and doing so could be found to be a contravention or breach of orders. Both parents should continue to practise social-distancing with their children while they are in their care in line with Government recommendations which are being updated regularly via https://preview.nsw.gov.au/covid-19.
Obviously, if the circumstances are that your children live with you, and they are to spend time with a parent located in another State such as QLD, who has closed it’s borders – then this would be considered a reasonable excuse for not complying with Orders, however you should keep this scenario child focused and arrange for additional, and prolonged Facetime calls or letter writing which would assist in your children being able to openly communicate with them in the time that they should be spending with them. You should each take note of your efforts to continue facilitating the relationship during this period and perhaps suggest some makeup time together when the pandemic has ended.
- What if a social isolation order is made by the Government?
If and when a social isolation order is made by the Government, then your co-parenting situation may change. You may not be able to transport your children to the other parent, or one of you may not be able to have them with you whilst you’re in isolation. In these circumstances, if you decide to withhold your children, please ensure that you have legitimate reasons that the Courts are likely to understand and seek legal advice prior to making any changes if you can. At the same time, we encourage you to do you best to facilitate a meaningful relationship with the other parent during this time whilst maintaining the health and safety of your children and yourself.
It is unlikely that the Courts would look favourably on a parent utilising the COVID-19 situation as a vehicle to spend additional time with their Children.
- Childcare centres and schooling arrangements
Given the unprecedented nature of COVID-19, it is uncertain at this stage as to how long social distancing policies and the closure of non-essential services and some schools will last.
Think ahead and develop some contingency plans with your co-parent which address ways in which you can both best meet the needs of your children during the COVID-19 time. Keep in mind that it may be unavoidable that your co-parent may have to make last minute changes to agreements or plans due to their own evolving work arrangements, and try to work together.
We encourage co-parents to be accommodating of each others circumstances where reasonable, and to document all such requests and responses in writing in case it becomes necessary to refer to them in the future. Anything changes to normal time the children spend with you should always be agreed to in writing, and limited to the COVID-19 period only.
- Communication between parents
You should continue to keep your co-parent informed as to any medical emergencies relating to your children, unless you have orders stating otherwise. Please remember, that these are anxious times for all of us, and your co-parent may need some additional reassurance when the children are not with them. Let’s try and practise kindness during this time.
Also keep in mind that if have parenting orders in place, that any action you may take to deliberately withhold such medical information could later be found to be a breach of court order. We highly recommend that parents exchange details of family doctors whom the children see now, if they haven’t already, to avoid this occurring when an emergency happens.
- Changeover locations
Please decide with caution as to whether previously agreed changeover locations will still be practicable. If your changeover location is at a child’s school but the school has closed, then you and your co-parent should work together to find a mutually workable solution. Also consider that if the changeover was to occur at a non-essential service or business premises, and it was chosen by you both specifically for its highly visible, public nature, it would be sensible to check whether this location continues to be a sensible choice and perhaps make other arrangements.
If you have an appointment for an intake session or a joint session at a mediation service such as Relationships Australia, Catholic Care or with a private mediator, you should contact the service provider as soon as possible to confirm whether these will still be able to proceed via telephone.
The upcoming months are going to be challenging for us all and we encourage families going through a separation to be practical and reasonable, and more flexible than other times. At all times, parents should move forward with the best-interests of their children at the forefront, coupled with our obligations to minimise risk and instability for everyone involved, being the children, your co-parent and your elderly relatives and extended friends and family.
While it is a very real possibility that both you and your co-parent with need to make certain compromised in order for parenting arrangements to function, if you can – try to work together to see this as an opportunity to strengthen your co-parenting relationship and support each other through these uncertain times.
- COVID-19 is creating fear and uncertainty for us all. Do your best to stay calm, think rationally and be sensible with regards to hygiene and socialising and teaching your child what they can and can not do at the present point in time.
- Keep up to date on the Governments latest health advice, keep communicating with your co-parent and stay child focused.
- Keep records of when you’ve contacted the other parent in writing (by text or email), explaining what your concerns are about the current parenting arrangement and proposing a reasonable solution. It will be very helpful to encourage the other parent’s thoughts and suggestions on the proposal because you should attempt to develop a work around that accommodates the concerns and interests of both parents.
- Before you withhold the Children from the other parent due to COVID-19, ask yourself whether your decision would be seen by a judge to be reasonable in the circumstances. You do not want to have to address a contravention application during, or after these already stressful times.
As of 26 March 2020, the Cheif Justice of the Family Court has issued a comprehensive and helpful bulletin on parenting orders and the Coronavirus. You read the bulletin directly on the Family Court website at http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/mr260320
Obviously, this advice is general in nature, and should not be acted on without seeking further advice from one of our lawyers at Scarf Family Law.
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