Parenting in the Time of Coronavirus (COVID-19)

30 March 2020

By Sherlene Heng

We live in unprecedented times.

Things are changing, and often rapidly changing in terms of what can and can’t be done, and what is best to do or not to do.

For many, just a month ago, the thought that one could not go out for dinner would have been unfathomable. Some countries have now imposed strict lockdowns. Australia’s policies are evolving over the weeks, if not over the days.

For many separated parents with children moving between their households, this pandemic represents a challenging period.

Pandemic related issues are all very new, and while there is guidance coming from the Courts, there has yet to be any Australian judgment handed down on how the Courts will deal with them.

At the time of writing, the following may assist:

  1. The best interests of the child/ren remain paramount.

If existing parenting orders are in place

Where there are existing parenting orders in place, it is appropriate (where there is no risk in doing so) for parents to communicate about orders and discuss any potential variations to ensure that appropriate social distancing measures are taken, or to reduce any risk generally.

For instance, if the default handover location when not a school day is a Coles or Woolworths, it might be appropriate to change the handover location to either parents’ home.

If existing arrangements provide for multiple handovers in a fortnight, parents may wish to discuss amendments to reduce these for the time being. As a practical example, if a parent has alternate weekends and 2 overnights during a fortnight, they may be able to agree to extend the weekend time by one night and not otherwise have overnights during this period.

If one parent is a healthcare or similar essential worker perhaps discussions could be had about suspending time for a period.

However, and subject to any changes in government policy, parents must follow existing Orders unless they are varied by further order or consent.

As at 29 March 2020, Prime Minister Scott Morrison has recommended that “stay at home” laws do not apply to families that are split across households. States have not yet released further clarification on a state by state basis.

[[EDIT As at 31 March 2020 NSW has passed the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 which states that a reasonable excuse includes ‘for children who do not live in the same household as their parents or siblings or one of their parents ofr siblings – continuing existing arrangements for access to, and contact between, parents and children or siblings’. Victoria has issued stay at home directions which state that ‘a person may leave the premises to meet obligations in relation to shared parenting arrangements, whether the arrangements are under a court order or otherwise’.

Other jurisdictions

Clearly not Australian law, but over the waters in New Zealand, where there has been a lockdown since 25 March 2020, it has been stated that “shared care arrangements should continue where the parents live near to each other” as long as travel between home is “consistent with Ministry of Health guidance”.

In the Canadian Courts (in the matter of Ribreiro v Wright), the applicant sought to suspend the children’s time with the respondent (2 nights a fortnight) due to COVID-19. The triage judge stated that “children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child”.

Reasonable Excuse?

There are of course situations where one parent may have a reasonable excuse for contravening an Order. The section of the Family Law Act 1975 particularly relevant to this is

“if they believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person and the period… …[of contravention] was not longer than was necessary to protect the health and safety of that person”.

There may be situations when this will apply. For instance:

  • Does one parent have coronavirus or is in contact with someone who does?
  • Is one parent in Government mandated self-isolation or self-quarantine?
  • Does one parent refuse to take coronavirus seriously and is not appropriately socially distancing (to the Government guidelines as a bare minimum)?
  • Is there any other specific evidence as to the risk that may be posed to the children in the other party’s household?

It is strongly recommended that parents ensure that they have as much evidence as possible to support any such claim if they intend to rely on reasonable excuse. Parents are reminded that there is no judicial determination on these matters at present.

What if there are no Orders in place?

Again, communication with the other party is extremely important during this challenging time.

It is certainly possible and strongly recommended for parents who cannot agree on parenting arrangements to undergo Family Dispute Resolution.

Please note that all references above to communicating to the other party or allowing variations are for situations where there is no risk of family violence. The safety of the children and parent needs to be forefront.

If it assists, the Courts in the Eastern States have published an excellent media release which is attached here.

We’re Here to Help

Family law matters can be difficult and complex. If you require any assistance with a family law dispute, always contact a legal practitioner who will be able to help.

If you need any assistance interpreting or navigating your family law dispute, O’Sullivan Davies can assist you. More information about our services can be found at our About Us page here.

Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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