Parenting with my Ex in the middle of the COVID19 Pandemic

This has been a difficult time for many families trying to work out what to do with the arrangements for their children during the COVID19 global pandemic. We have outlined some of the issues that separated parents are facing at this time below:

1. Do I have to comply with the Court Orders about making sure my children go to spend time with the other parent?
Whilst each child’s matter is dependent upon the individual circumstances of the case, the Judges of the Family Court and the Federal Circuit Court of Australia have provided a clear response that the COVID19 pandemic of itself is not a reasonable explanation to not comply with the Orders.
In a Media Release, the Chief Justice said: ‘In the highly unusual circumstances created by the pandemic, many parents and carers may be faced with situations that may make the strict compliance with their current orders very difficult, if not impossible to comply with.

There may be issues pertaining to, for example,

• contact being supervised and supervised contact Centres being closed, or,
• for changeovers to occur at schools when schools are closed
• or issues arising from state borders that are closed.
• There may also be serious concerns whereby one parent is concerned that someone in close contact with that parent has been exposed to the Virus. Such situations may give rise to issues pertaining to restricting the safe movement of a child from one house to the other.

The Response from the Courts is:

1. That the parties should communicate with each other about the ability to comply with the order and attempt to find a practical solution to deal with the difficulties.

2. The parents should consider the safety and best interest of the child but also appreciate the concerns of the other parent including an understanding that family members are important to children and at the risk of infection to that vulnerable members of the child’s family and household should also be considered’.

3. The parents will need to follow the recommendations and restrictions within the states and rules about social distancing, testing and self-isolation when the children have symptoms.

4. If there is no agreement in place parents should keep the children safe until a dispute can be resolved. They should ensure that the child continues to have some contact with the other parent if it as a minimum by videoconferencing social media or by telephone.

5. Parents and carers must act reasonably and to act reasonably they must have a reasonable excuse for not complying with an order.

6. Parties have an obligation to ensure that the purpose and spirit of the orders are respected when considering altering any arrangements and that they act in the best interests of the children.

2. Is travelling between parental homes seen as ‘essential travel’ in the middle of restrictions?
Parties need to adhere to the Government’s restrictions which will vary almost daily. The need to travel between homes to facilitate time with the other parent, would likely be considered an essential form of travel, but it will be dependent upon the individual State’s guidelines at the time, and regard must be had to those guidelines/ restrictions.

One of the exceptions to the travel between States has been to arrange children to have time with their parent in accordance with Family law Orders.

Parents will need to see if there are any restrictions in their individual state, if the restrictions apply to them and if the exemptions apply to them. Parents will also need to consider whether they need to apply to a State statutory body for an exemption. They will also need to consider the mode of travel between states, as this may also change.

3. What do I do, if the other parent says that they won’t let the children go to the other parent’s home because of COVID19?
Firstly, speak to the other parent and listen to the other parent as for their reasons to the objection, to ascertain whether they are valid concerns.

See if you can come to an agreement, or an alternative arrangement? Suggest that you participate in Mediation to resolve the dispute. Most Mediation Providers are offering Mediation through Videoconferencing means, if a face to face mediation is not appropriate.

Seek legal advice- a call to a family lawyer may be able to clarify your options and assist in resolving the dispute. If you cannot resolve it, then you may need to consider making an urgent Application to the Court about the issue. The Family Courts have now set up a specific “COVID 19 List” to deal with these very specific issues in a more timely and efficient manner.

4. What if I am worried that the other parent is at High Risk of contracting the virus?
The Court’s advice is that we look at matters on a case by case basis and always based on what is in the children’s best interest. Obviously, both parents would not want to put their children at risk of exposure to the Virus and would be sensible in trying to find a solution.

5. What if I am caring for other family members who could be exposed to the virus are at a High Risk?
The Court acknowledges that the consideration of other family members is a matter to be taken into consideration and expects that the parties be sensible and reasonable in discussing their options about these issues.

Are the Courts still open?
As at the date of posting, the Courts are still open and operating. There are however changes to the way the Court operates. During the COVID19 situation we have seen that the Court appearances and mentions have occurred via either telephone or via audio visual through the Microsoft Teams.

The Court has seen, in most states except Victoria, a slow reintroduction of and a return to some face-to- face Hearings.

If you have any questions about how COVID19 has affected you or your family law matter personally, just ask. We also have other articles on this subject/ links that we have written about this subject. To make an appointment with one of our Family Law Team, contact Solari and Stock Miranda on 02 8525 2700 or click here to request an appointment.

Photo by Juliane Liebermann on Unsplash