Update on COVID-19 and parenting arrangements

1 May 2020

By Eliza Fitzgerald

Many clients have raised concerns about complying with Orders in the pandemic. The Chief Justice of the Family Court of Australia has made it clear that parents should be complying with parenting Orders (unless it is not in the child’s best interests) and should act cooperatively and responsibly in ensuring that the health and wellbeing of all parties involved is adequately protected.

It is clear that this is a real issue for many parents, with the Courts in the Eastern States now establishing a fast tracked, national (save for WA) list to allow the Courts to swiftly deal with urgent applications arising as a direct result of the COVID-19 pandemic.

The underlying principle of the Family Law Act 1975 is that it is in the best interests of children to have a meaningful relationship with both parents (on the basis that the child is protected from being exposed to harm or abuse).

The recent loosening of restrictions in Western Australia on the number of people that can gather indoors and outdoors are a positive step.

While the Prohibition on Regional Travel Directions in Western Australia continues, it specifically exempts travel where it is necessary for the person to do so for the purpose of fulfilling their obligations under a parenting plan, parenting order of a Court, or other parenting arrangement. Parents should carry a copy of their current parenting Orders with them to confirm they fall within this exemption.

Prior to COVID-19, there have been cases where the Court has been satisfied that a parent who considered contravention was necessary to protect the health or safety of either the person or a child amounted to reasonable excuse for the breach. That same principle applies in a pandemic. The existence of COVID-19 itself is unlikely to amount to a reasonable excuse to prevent time from taking place. However, it may be considered a reasonable excuse in situations for example where:

    • A child or parent is unwell and/or exhibiting COVID-19 symptoms or comes into contact with a confirmed case; or
    • A child or parent is in mandatory quarantine or isolation.

Even where parenting Orders cannot be complied with due to mandatory quarantine or travel restrictions, parents should attempt to consider alternatives such as temporary video calling, while also giving the other parent adequate notice and explanation to the difficulties currently faced.

Now more than ever, it is important for parents to work cooperatively to minimise risk to their and their children’s health and wellbeing. If parties cannot communicate directly it is important to attempt conferral through dispute resolution processes before taking any steps towards litigation.

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.

O’Sullivan Davies has practitioners experienced in dealing with parenting arrangements for your children. 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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