By Samantha Henderson

23 April 2020

There is no doubt that the current worldwide COVID-19 pandemic is presenting extreme and unprecedented parenting challenges for separated parents:

  1. Maybe you have agreed to a parenting regime with your spouse and now you don’t know where you stand?
  2. Maybe you do not know whether you are required to comply with parenting Court Orders or the recent Federal and State Government COVID-19 regulations and laws?
  3. Maybe there are parenting Court Orders in place for your children and you don’t know whether to prioritise compliance with the Court Orders or act to protect an immunocompromised family member or child when your ex-partner or ex-spouse is refusing to self-isolate? Maybe you do not know if this is a reasonable reason to refuse to make your children available to your ex-partner or ex-spouse when you consider there is a real and significant risk to members of your household?
  4. Maybe you have no parenting arrangements in place and have not been able to negotiate seeing your children?
  5. Maybe you have an intervention order in place and are not able to speak to your ex-partner or ex-spouse to negotiate time for your children to spend with you?

In these new and unchartered waters, family law practitioners have been forced to quickly adapt their approach to parenting matters in its effort to assist parents navigate these challenges and attempt to maintain stability in their family units and, of course, ensure the health and safety and best interests of their children are met.

The Courts have clarified that, for obvious reasons, the number one priority of parents throughout the pandemic should be the health and safety of their children. As such, parents and children should abide by all Federal and State Government regulations and laws, maintain social distancing practices and avoid all activities and outings which are not classified as ‘essential’ at first instance.

In circumstances where a parent or child is unwell, it is important for parents to contact their local medical practitioner and / or the COVID-19 Government hotline and follow the advice of these medical professionals, including self-isolation where required. Parents should advise each other if a member of their household or a child is unwell, as a matter of priority.

If a child or member of the other party’s household is not well or contracts COVID-19, this may mean that children will be unable to see the parent with whom they don’t live primarily for a period of time until all family members in that household are declared not to be infectious by a medical practitioner. Parents should discuss these issues and attempt to reach agreement, and prioritise their safety and the safety of their children, whilst taking steps to reduce the possibility of infection or the spread of COVID-19 infections.

Whilst we understand how challenging this may be for parents and families, and the impact on children not being able to spend time with a parent that they would otherwise see on a regular basis, parents are encouraged to adopt a flexible approach to parenting regimes and facilitate alternative communication, such as Facetime or phone calls, where in person face to face time is unable to proceed.

Where Court Orders are in place, the Courts have acknowledged that strict compliance with parenting Orders in current circumstances may not always be practicable. That being said, parents should maintain compliance with Court Orders unless there is a clear risk to a parent or child if time proceeds. Parents should be flexible and implement alternative strategies to ensure compliance with the Orders in so far as that is possible. For example, this may mean organising for changeover to occur at a parent’s house rather than school, or re-organising the time of changeovers to accommodate new work arrangements, or agreeing to make up time if time has not been able to proceed because one parent has been unwell or time has not been able to proceed due to a risk in one parent’s household of family members contracting COVID-19.

At the same time, it is important that parents do not abuse the circumstances of the pandemic to circumvent their obligations under Court Orders in a way that is not child-focused or otherwise unreasonably restricts communication and contact between children and the other parent. The Family Law Courts will not tolerate such conduct and have made that clear in media statements issued by the Courts.

The bottom line is that compliance with Court Orders, and parenting agreements, should be maintained unless there is a risk to a child’s health or safety. If you have any concerns that your spouse is, in the circumstances, unreasonably breaching their obligations or restricting your communication with and time with your children, you should contact the Family Law Team here at TLFC who will be able to assist you.

Where there are no Court Orders in place, parents should act rationally and reasonably and facilitate communication and time between children and the other parent as agreed, consistent with the safety, welfare and best interests of the children. Again, the best interests of the children, must remain the priority. This means if there is a real and significant risk posed to a child, it is reasonable for a parent not to agree to time with the other parent. However, in the absence of such a risk, time and a relationship between the children and the other parent should be facilitated and take place.

Parents should try to remain compassionate to the circumstances of their spouse and their children and the additional financial and emotional stress they may be going through at present. Parents should communicate openly and honestly with each other about their circumstances, their health and the health of the children. Parents should endeavor to work together to co-parent cooperatively throughout this crisis.

As difficult as the COVID-19 pandemic may be, we urge parents to keep the best interest of the children in the forefront of mind and remember that this crisis will not last forever.

For further information on COVID-19 related children and parenting issues, please do not hesitate to contact the Family Law Team here at TLFC. Please contact us on 03 8600 9333 or email jclark@tlfc.com.au and tdeburiet@tlfc.com.au.

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