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Parenting Orders During Covid-19

Covid-19 restrictions have complicated parenting orders, and in some situations, made compliance with orders difficult, impractical or impossible.

Lifestyle changes necessary to deal with the pandemic, such as working and schooling from home, as well as the economic hardship caused by a loss of earnings, has forced parents and carers to revise parenting arrangements.

However, court orders remain legally binding and should be complied with wherever possible. An order cannot be breached without a “reasonable excuse”. Parents will need to show they have taken steps to overcome the challenges caused by Covid-19 and been proactive in trying to find ways to comply with orders.

Advice from the Family Court and Federal Circuit Court

The courts have stated that when parenting arrangements need to be adjusted, this should be done in the best interests of the child and with the agreement of both parents.

Family Court Chief Justice and Federal Circuit Court Chief Judge Will Alstergen provided a guidance statement of 13 principles for families:

  1. It is imperative parents and carers act in the best interests of children.
  2. Parents and carers are expected to comply with court orders, including facilitating time with each parent.
  3. There may be situations where strict compliance with court orders may be difficult or impossible; for instance, where an order requires a changeover to be made at a school and the school is closed, or where there may be a safety risk to a child when a parent or carer has been exposed to Covid-19 and this restricts the safe movement of a child from one house to another.
  4. As a first step, and only if it is safe, parties should communicate about their ability to comply with current orders and try to find a practical solution to these difficulties. These should be considered sensibly and reasonably, recognising the importance of family members to children and the risk of infection to vulnerable members of the child’s family.
  5. Any new parenting arrangements should be in writing, even if by email, text message or WhatsApp. This will be important if there are later family hearings.
  6. The Family Relationship Advice Line can provide advice to help parties come to an agreement.
  7. Parents and carers can mediate their differences through lawyers.
  8. If an agreement has been reached and consent orders developed to outline a changed parenting order, consent order applications can be filed electronically with the court.
  9. If parties cannot agree to vary the arrangement, or if it unsafe to do so, the parties can approach the court electronically to seek a variation of the orders.
  10. Where there is no agreement, parents should keep children safe until the dispute can be resolved. They should also ensure each parent or carer continues to have contact with the children, such as by videoconferencing or phone.
  11. At all times, parties must act reasonably. To act reasonably, or to have a reasonable excuse for not complying with court orders, is a matter considered by the court under the Family Law Act 1975.
  12. It is imperative that parties ensure the purpose or spirit of the orders are respected when considering altering parental arrangements.
  13. The court appreciates that agreement may not be reached, so if a party or a child is in immediate danger, local police should be contacted and medical advice sought if required.

Case law

Cases have shown how the court balances the risk of Covid-19 to the health of a child with the benefit of the child spending time with a parent.

Collingwood & Collingwood (May 2020)

The mother had refused to provide the children to their father as required under the parenting order, saying she and the children were in self-isolation. The father filed an urgent application to vary the changeover venue. As an alternative, he proposed to collect and return the children to their home, remaining in the car at all times.

The mother tendered a letter from the children’s GP stating the children had suffered “recurrent viral illnesses and are as a result more at risk of being susceptible to other viral illnesses with potential for more severe illness from these viruses should they be exposed. Both (children) have asthma and are a higher risk of complications from respiratory infections … I am recommending them to continue to self-isolate while we continue to see ongoing cases of Covid-19. They should limit contact to members of their household only or for medical treatment or emergencies.”

The judge ruled that “the children’s health must take precedence over the benefit of their spending time with their father”. He ordered that the children be allowed to communicate with their father weekly via Zoom and that the order be reviewed in a month.

Kardos & Harmon (May 2020)

Orders made in 2018 provided for the child, who lived with their mother in Adelaide, to spend four days a month with their father, who lived in Brisbane. In March and April 2020, the mother refused to deliver the child to the father at Brisbane airport. She stated that due to circumstances related to Covid-19, she had a reasonable excuse, citing concerns for the child’s health and the effect of border restrictions which would require the mother and child to self-isolate for 14 days on their return to Adelaide. The judge found the mother had a reasonable excuse for non-compliance with the orders, and varied the orders to facilitate the father spending time with the child.

Pointer & Cheadle (May 2020)

A mother failed to facilitate the child spending time with the father, in breach of a family order. The mother argued the asthmatic child would be exposed to an unacceptable risk at the father’s home, which was near a nursing home and a school where cases of Covid-19 had been detected. The judge was not satisfied of this, stating they believed the father would comply with social distancing and appropriate domestic hygiene, and refused the mother’s application for a stay of orders.

For advice or representation in any legal matter, please contact Armstrong Legal.

Sally Crosswell

This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

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