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Parenting Arrangements during COVID-19

The ongoing uncertainty of the COVID-19 pandemic has caused unprecedented challenges for separated parents. What is even more challenging is the complexity of understanding and navigating the evolving COVID-19 restrictions, whilst at the same time trying to ensure that Court Orders are being adhered to.

But what are you supposed to do? What happens if we are forced back into another lock down?

What is a good starting point?

The, Honourable Justice Alstergren, Chief Justice of the Family Court of Australia and the Chief Judge of the Federal Circuit Court of Australia issued a statement on the Family Court of Australia website which provides general guidance for parents, carers and families during the COVID-19 pandemic.

The statement can be found using the following link: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/mr260320

Parents and guardians are expected to comply with Court Orders regarding parenting arrangements, as this is consistent with their obligation and responsibility to act in the best interests of the children. Not only does this include the facilitation of spending time with children and their respective parent or guardian, but it also considers the importance of ensuring the children’s safety and wellbeing.

Parents and guardians are encouraged to communicate with each other directly, or with the assistance of a third party, such as a family dispute resolution practitioner or lawyer, about their ability to comply with Court Orders and attempt to find a practical solution to any unforeseen or current difficulties.

What if I’m worried about catching COVID-19?

If you have a shared parenting arrangement, you must meet your obligations under the arrangement where there are Court Orders in place.

If any person or party to a Court Order does not follow those Orders, then they are at risk of a Contravention Application being brought against them, and there are consequences which may subsequently flow. When considering whether a parent has contravened a Court Order in relation to children, the Court will take into account whether the person had a reasonable excuse for not complying with the Orders, such as to protect the health and safety of a person and that the children are withheld for no longer than is necessary to protect the health or safety of the person.

What if the children are spending supervised time?

If children are spending supervised time with a parent or guardian, whether this arrangement is pursuant to parenting Orders or a parenting plan, that parent or guardian is required to facilitate supervised time in accordance with the Orders or plan.

There is however some difficultly, given that a number of supervised contact services have changed the way they are functioning in light of the COVID-19 pandemic, making complying with Orders challenging.

The majority of contact services have continued to operate through the restrictions, but may have modified their operating models and begun offering videoconferencing services online through such applications as Skype, Zoom and Microsoft Teams.

Other contact services have changed the way that they operate, including the sourcing of a restricted the location at which they are willing to facilitate the supervised time, in order to protect the staff and families using the service.

There are some contact services which have ceased their services altogether, meaning that parties previously attending pursuant to Orders are now no longer able to do so. This is understandably extremely upsetting for parents and guardians who have been affected by this change.

If you are unsure of what to do, you can consider contacting the service directly to find out how they are operating during the pandemic. It may also be possible for parties to work together in these difficult times and work to find alternative methods of facilitating time.

If you are concerned that orders which are currently in place are no longer work-able in the circumstances then you should first seek legal advice from an experienced family lawyer in order to determine what other option are available to you.

Are the Courts open?

The Family Court of Australia and the Federal Circuit Court of Australia continue to operate, however there have been changes to the operation of the Courts which have been implemented in accordance with current restrictions.

The majority of matters within the Courts are being dealt with by way of telephone conference or via videoconferencing. Only a minority of cases, those with exceptional circumstances, are being conduct on a face to face basis in accordance with Court protocols. Compliance with social distancing protocols are being strictly enforced.

Parties may be able to prepare consent orders varying parenting orders and file these electronically with the court.

Alternatively, where it is not possible to reach an agreement, or it is unsafe to do so, a party may apply to the court to seek a variation of the order, but it is always prudent to obtain legal advice from a family lawyer to assist you in preparing these documents.

Tips to remember

  1. If there is a Court Order in place, you are obligated to follow the Orders until the Orders are varied by agreement or by the Court.
  2. In the event that you are not able to comply with the Court or parenting agreement, it may be that you may need to adapt or find creative solutions such as finding an alternate neutral location for changeover. You still should ensure that physical distancing practices can be maintained on which ever solution you decide upon.
  3. If face to face time is not possible, consider ways to stay in contact with the children whether it be via Skype, WhatsApp, Facetime or more regular phone calls.
  4. If it is safe to do so, communicate with the other parent about your concerns and what you plan to do if someone within the household develops flu like symptoms or is required to self-isolate.
  5. The Family Law Courts are also there to help families reach urgent orders or to file consent order agreements. You should not attend in person, unless you have been requested by the Court.
  6. If you are finding it difficult to work out alternate arrangements, we recommend that you seek assistance, whether it is through a legal practitioner, a mediation service, a counsellor, or a support person.

The COVID normal?

The COVID-19 pandemic is an evolving situation and it is positive to see things slowly reopening with the easing of restrictions. Government directions, advice and laws will likely continue to change as new information and developments arise and it is important to stay informed of these updates through reliable sources.

Effective co-parenting means putting differences aside and working together to make decisions and care arrangements for children that are in their best interests.

We understand that this is a difficult and distressing time for many. Our firm infrastructure facilitates the ability for our lawyers to work both from the office and from home in order to continue to serve our clients and assist them through these uncertain and unprecedented times.

We will continue to provide advice and assistance through email, telephone, and video conferencing across all areas of family law.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

If you know someone who needs this sort of legal assistance have them call us on 03 8415 5600 or email reception@hartleyslawyers.com.au. In doing so what have they got to lose?

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