There is no doubt that many of us have found ourselves wading through uncharted waters and trying to understand how to live around the new regulations introduced to prevent the spread of the Covid-19 Virus.

Separated parents in particular are now grappling with the extra stress of co-operating as infection concerns and legislative restrictions on movements raise concerns as to how the children will move safely between the parents’ homes.

The Family Court has released reminders to parents to act in the best interests of the children and where strict compliance with Parenting Agreement and/or Court Orders is not possible because of the restrictions, then parents are to do their best to uphold the “spirit” of their respective Agreements or Court Orders.  

Needless to say, some parents will surely use the current situation as a means to withhold the children from spending time with the other parent.

Parents must understand that the legislative restrictions on movements introduced pursuant to the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 do not impact on children moving between parents’ household. Where children are required to travel interstate for the purposes of spending time with another parents, the Family Court advises parents to seek advice from the relevant State and Territory authorities about how the border restrictions and quarantine requirements may impact them and their circumstances. Where you are crossing borders, we remind you to take a copy of your Parenting Agreement or sealed copy of your Court Orders to show authorities if required.

But what happens if you just simply cannot effect the terms of the Parenting Agreement or Court Orders? For example; what happens when a contact centre facilitating access by a parent to a child is shut or the sporting event at which the parents meet for changeover is postponed?

What happens when you are required to make joint decisions about whether the children continue to attend school or commence remote learning and what are the rules regarding their social isolation/quarantine?

In such circumstances, we remind parents not to jump to litigation and that your lawyers and Court cannot intervene at every step to help you make decisions. This is in fact a great opportunity for parents to practice co-parenting. Where possible, focus on the bigger picture, remember that these restrictions are temporary and always think about how you can uphold the purpose or spirit of the Agreement/Orders you have when trying to consider alternative arrangements.

For those of you who have found yourselves dealing with a parent with whom you absolutely cannot negotiate because they refuse to talk or be reasonable and have simply withheld the children; we encourage you to record the dates/times and then request make-up time.

Even though unfortunately we do not have a precedent for how the Courts’ will deal with these situations; we can advise that a Judge will certainly frown upon a parent who unilaterally decides to contravene an Agreement or Orders without a reasonable excuse. What is deemed a reasonable excuse will vary from one case to another. It will be up to the parent who is breaching the Agreement/Orders to establish that they had a reasonable excuse to contravene.

We advise parents to keep all their communication with the others parent in writing and set out clearly what your concerns are and your suggestions for alternative arrangements. For example; if you feel that the children should not continue going to school – list out why you think that would be in the child’s best interests – would the child be in greater risk because of a pre-existing health condition such as asthma? These communications would form part of your Contravention Application should you unfortunately find yourself back in Court.

If you can communicate with the other parent, remember to keep each other well updated and respect that anxieties and concerns about the children’s health would be heightened now. Consider the use of an online chat program to exchange regular photographs and updates as to the child’s wellbeing and schooling.

When it gets tough; keep reminding yourself and the other parent that the focus must be taken off your conflicting interests and the hostility that exist between you and to ask yourselves what you can both do for your children to keep them safe and healthy in this current situation.

Zahraa Algalele
Partner