In recent weeks we have received a large volume of enquiries from people seeking advice relating to the current pandemic and how separated parents should be responding to it.
Some of the questions we have been asked include travel arrangements (when one parent has relocated a significant distance from where the child spends time with the other parent), school arrangements, and even what to do if they are required to self-isolate as a result of overseas travel and/or possible exposure to COVID-19.
The Family Court of Australia has recently published a statement from the Honourable Will Alstergren, Chief Justice of the Family Court and Federal Circuit Court of Australia, which sets out what the Court’s expectation is of separated parents in relation to parenting Orders. In our view, there is no reason why separated parents who are not subject to parenting Orders could not adopt a similar approach.
Separated parents need to understand, at law, that they have two main obligations:
- Parents and carers should continue to act in the best interests of their children, and ensure their safety and wellbeing. Practical day-to-day decisions about a child’s best interests are the responsibility of parents and carers;
- Parents are expected to comply with their Court Orders, including facilitating time with each parent.
That might seem to be a contradiction in circumstances where the children might be exposed to COVID-19. The risk is objective – for instance, it is unlikely you will contract COVID-19 by simply going out your front door, but if changeover used to take place in busy public places then perhaps the parents need to consider alternatives to mitigate and reduce the risk. Everyone’s circumstance is different, and we would encourage parents to seek independent legal advice at an early stage to reduce the risk of things ‘blowing up’ down the track.
The Court acknowledges there may be situations which make strict compliance with current Orders very difficult – for example, the closure of a State border, the closure of a Contact Centre, or the closure of a school, or if a parent/child has been exposed to potential infection from COVID-19. If that is the case and parents are faced with a scenario which makes it difficult (if not impossible) for the child(ren) to spend time with the other parent, parties’ should communicate with each other (if safe to do so) and attempt to find practical solutions.
If agreement is reached, it is recommended that parents document the changes to their Orders (even if it is just for the short term) in writing – e-mail is definitely preferred from our perspective, but text messages will suffice in a pinch. Remember, you may need to produce the written agreement in Court someday. If you feel that a simple written agreement isn’t sufficient for your needs, you can also submit an Application for Consent Orders in the Family Court.
If agreement is not reached about varying the parenting Order/arrangements with the other party, or if it is unsafe to do so, we would encourage you to make an Application to the Court. Parents should keep the children safe – especially if there is a genuine risk of exposure to COVID-19, but at the same time you should explore alternative options to facilitate a relationship between the children and the other parent. Skype, Face Time and Facebook Messenger all provide forums for people to make video calls. The old fashioned telephone is also a great option!
The expectation on parents is that they will act reasonably at all times. If you are unable to comply with your Orders, you should seek independent legal advice as a matter of urgency. To quote the Court, ‘It is imperative that, even if the orders cannot be strictly adhered to and are varied by the parties, the parties ensure that the purpose or spirit of the orders are respected when considering altering arrangements, and that they act in the best interest of the children’.
The Family Relationships Advice Line can provide information, advice and telephone-based Family Dispute Resolution services to assist parents and carers to discuss any issues that arise and help them come to an agreement. The Family Relationships Advice Line can be contacted on 1800 050 321 or visit their website. Parents and carers can also mediate their differences through Family Dispute Resolution Practitioners as well, who are offering telephone or video-conferencing services too.
At the moment, it is business as usual at Big Law, so please do not hesitate to pick up the telephone or send us an e-mail if you need assistance to deal with any issues that you might be facing at this challenging time in relation to all things Family Law!
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