Co-parenting during COVID-19

There is a lot of uncertainty in the world at the moment as a result of COVID-19. Uncertainty around finances, employment, education and our health. However, as parents, it is important to protect our children from as much of this uncertainty as we can. This is tricky for all parents, but particularly even more so for separated parents who may go about discussing this uncertainty with their children differently to the other parent.

Are parenting orders enforceable during a pandemic?

Regardless of the current global pandemic, when it comes to parenting, parents and carers are expected to comply with court orders in relation to parenting arrangements, consistent with their responsibilities to act in their children’s best interests. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders. It also includes ensuring the child’s safety and wellbeing.

It is likely that the Courts will show some leniency where parents can provide evidence that they have attempted to take steps to overcome any challenges that COVID-19 has presented. However, it is unlikely that they will accept COVID-19 alone as an excuse.

Guidance from the Federal Circuit Court suggests that if your parenting matters are regulated by Court Order, you must still meet your obligations under those terms unless a reasonable excuse applies.

Where Court Orders are not followed, then it remains open to an aggrieved person to bring a Contravention Application before the Court. 

If arrangements become unclear or cannot be met (e.g. quarantine, travel restrictions, or because schools close) use common sense to find solutions to challenges. If you anticipate a change, give the other parent plenty of notice and explanations so they have time to adjust. While it sounds simple, I have already taken several phone calls from distressed parents where this scenario has failed already.

Where it is safe to do so, parents 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 current orders and attempt to find a practical solution to these difficulties. The focus should be on the safety and best interests of the child. Any alternative agreement reached should ideally be put in writing. This is where your local Family Dispute Resolution Practitioner can assist you.

But what if we don’t agree?

The law states parents must act in the best interests of their children. Where parents cannot agree on what these are, the court has a list of best interests factors that must be considered. These include the benefit of children having a meaningful relationship with both their parents balanced against protection from harm.

The Chief Justice of the Family Court and Federal Circuit Court of Australia has made it clear if parents cannot reach agreement on new arrangements, they should generally follow their court orders unless their children’s safety is compromised. If a parent is seeking to deviate from family court orders due to health concerns, the Chief Justice has stated such requests:

“[…] should be considered sensibly and reasonably. Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent when attempting to reach new or revised arrangements. This includes understanding that family members are important to children and the risk of infection to vulnerable members of the child’s family and household should also be considered.”

If you can not agree, it is likely that attending Family Dispute Resolution (Mediation) should be the next step. In the event that your dispute can not be resolved at Mediation, the Mediator will be able to provide you with a 60i Certificate that lists the reason why the matter is progressing to Courts (whether the other party has not agreed to mediate or if they have not shown up etc).

My ex-partner isn’t complying with our parenting orders, should I go straight to the Courts?

The law requires separating families who have a dispute about children to make a genuine effort to try to sort it out through family dispute resolution (FDR) before filing an application for parenting orders in court. An FDR practitioner is an independent person who can help people discuss issues, look at options and work out how best to reach agreement in disputes about children. You can search for an accredited FDR practitioner who has consented to be on the Family Dispute Resolution Register website.

This requirement applies to anyone wanting to file an application with a family law court. It also includes those seeking changes to an existing parenting order. There are a few exceptions to this requirement, such as cases involving family violence, child abuse or urgency. Unless an exemption applies, parties seeking to have a parenting matter determined by a family law court will need to electronically file a certificate from an accredited FDR practitioner. The certificate is issued under Section 60I of the Family Law Act 1975 and is commonly known as a Section 60I Certificate.

At this stage the Federal Circuit Court of Australia and the Family Court of Australia have implemented urgent operational arrangements. Judges will be prioritising urgent matters. The judges will decide what is and is not urgent. It is important for you to obtain legal advice before considering making an urgent application to court. It is also important to note that any existing court matters may be adjourned and may be heard by telephone at this time.

Family Circuit Court Guidance

Where measures to help slow the spread of COVID-19 make compliance difficult, there are a number of options available to parents. The Chief Justice of the Family Court of Australia has issued general guidance for families in relation to parenting orders and COVID-19:

1.      It is imperative that parents and carers act in the best interests of their children. This includes ensuring their children’s safety and wellbeing. Whilst the Courts make orders that are determined to be in the best interests of a child, caring for and determining the practical day-to-day best interests of a child is primarily the responsibility of parents and carers.

2.      Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders.

3.      In the highly unusual circumstances now faced by Australian parents and carers, there may be situations that arise that make strict compliance with current court orders very difficult, if not, impossible. This may be caused, for instance, where orders stipulate that contact with a parent occurs at a designated contact centre, which may not currently be operating. Or, the “pick up” arrangements of a child may nominate a particular school, and that school is now closed. Many state borders are also closed. In addition, there may be genuine safety issues that have arisen whereby one parent, or someone in close contact with that parent, has been exposed to COVID19, and this may restrict the safe movement of a child from one house to another.

4.      As a first step, and only if it is safe to do so, parties should communicate with each other about their ability to comply with current orders and they should attempt to find a practical solution to these difficulties. These should be considered sensibly and reasonably. Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent when attempting to reach new or revised arrangements. This includes understanding that family members are important to children and the risk of infection to vulnerable members of the child’s family and household should also be considered.

5.      If an agreement can be reached about new parenting arrangements, even if they are to be adjusted for a short period of time, this agreement should ideally be in writing, even if by way of email, text message or WhatsApp between each other. This will be particularly important if there are later family law hearings and will assist all concerned, including the Court, to understand what agreement may have been reached.

6.      If you feel that you need further guidance, the Family Relationships Advice Line can provide information, advice and telephone-based Family Dispute Resolution services to assist parents and carers to discuss any issues that arise and help them come to an agreement. The Family Relationships Advice Line can be contacted on 1800 050 321 or visit the website.

7.      Parents and carers can also mediate their differences through lawyers. Electronic mediation services are available from the Courts and through local Bar Associations and Law Societies during these restricted times. Visit their websites for more information.

8.      If an agreement has been reached and consent orders have been developed to outline new or varied parenting orders, consent order applications can be filed electronically with the Court. This process is quick and usually conducted without a hearing.

9.      If the parties are unable to agree to vary the arrangement, or if it is unsafe to do so, and one or both parents continue to have real concerns, the parties are at liberty to approach the Court electronically and seek a variation of the orders.

10.  Where there is no agreement parents should keep the children safe until the dispute can be resolved. Also, during this period of dispute, parents should ensure that each parent or carer continues to have some contact with the children consistent with the parenting arrangements such as by videoconferencing, social media, or if that is not possible, by telephone.

11.  At all times, parents or carers must act reasonably. To act reasonably, or to have a reasonable excuse for not complying with Court orders, is a matter that is considered by the Court (pursuant to s70NAE of the Family Law Act 1975 (Cth)).

12.  It is imperative that, even if the orders cannot be strictly adhered to and are varied by the parties, the parties ensure that the purpose or spirit of the orders are respected when considering altering arrangements, and that they act in the best interest of the children.

13.  The Courts appreciate that agreement by mutual consent may not be reached, particularly if one party has concern for their physical safety. Therefore, the Courts advise that if you or your child is in immediate danger, please contact your local police and seek medical advice if required.

What if travel restrictions impact compliance?

If, due to requirements to self-isolate, travel restrictions or other Government-imposed bans, it is simply not possible to comply with your orders, then you should, where possible, help your child using technology to maintain contact with their other parent – Facetime, Zoom, Microsoft Teams, Skype, or an a phone call. 

There are instances where overseas travel forms part of the parenting orders. This is an area that you will need to very carefully make sound and documented decisions around if applicable. The Family Law Act 1975 (Cth) imposes obligations on persons travelling internationally with children pursuant to parenting orders. Failure to comply with the provisions may be an offence. Importantly: 

-     Under section 65Y and 65Z, it is an offence if, a parenting order is in force or there are pending parenting proceedings and a person takes a child outside of Australia without either specific written consent, or a specific order made by the Court. The person committing the offence may be a parent or a person acting on behalf of a parent. 

-     Under section 65YA, it is also an offence if, a child is taken outside of Australia, this time with the consent in writing of each parent or in accordance with an order of the Court, but the child is retained outside of Australia, otherwise than in accordance with a consent order or with the written consent of each parent. 

There is currently a travel ban in Australia so any intended holidays or travel for leisure can not proceed at this stage any way.

Child Support

Many individuals will be finding themselves in a situation where due to being stood down or made redundant, they are unable or struggling to pay child support. This is a very unique situation as the unemployment rate in Australia is set to increase considerably over the next 6 months. It is important for the other parent to be understanding and considerate to a parent that has lost their job at this time. However, you are still responsible for paying child support. If you find yourself in this situation, consider talking to the other parent to reach an amicable solution and, if you cannot work it out peacefully, you should contact the child support agency and seek independent legal advice where needed.

Medical Treatment

If your parenting order or parenting agreement states that you and the other parent have equal shared parental responsibility, then you must both share decision making about medical treatment and also immunisation (if a vaccine is developed) for your child/ children.

If you have no orders or agreement in place, then there is a presumption that both parents have equal shared parental responsibility.

If you have a parenting order that states that you have sole parental responsibility, then you can solely make decisions about your child’s medical treatment.

If you have equal shared parental responsibility and you take action without the agreement of the other parent, then that parent may contravene you.

 If you are having difficulty reaching an agreement with the other parent, then you may wish to engage a mediator to assist you or seek urgent advice from a legal practitioner about your options.

So, what can we do to stay out of dispute regarding parenting orders?

By now, hopefully you have had the discussion with your ex-partner about all of the ‘what if’s’. It is important that there is a back up plan in place for work, school, childcare and other activities. In the event that one of the children falls ill or someone in your family is unwell and therefore your household is required to isolate, it is important that the other parent is communicated with in a sound, effective and efficient manner in order to reduce the likelihood of dispute. Here are a few tips for co-parenting during a pandemic:

• You and your family need to stay healthy and ensure you follow government guidelines to reduce the risk of spreading the virus from one household to the next.
• Let the other parent know what you are doing in your home so they can take similar steps themselves.
• Negotiate a plan as soon as possible so both parents know what to do if someone falls ill during the pandemic.
• Have the intention of communicating effectively and efficiently with the other person with the children best interests as the priority. Try not to intentionally be difficult in negotiations.
• If a court order or agreement is in place, you must still follow these arrangements unless there is a good reason not to.
• If arrangements become unclear or cannot be met because of quarantine, travel restrictions, because schools close, or another reason, use common sense to find solutions to challenges.
• Ensure that any medical visits are communicated with the other party as soon as practical.
• You may need to adapt or find creative solutions such as finding an alternate neutral location for changeover such as a petrol station, grocery store, or perhaps a police station if there are significant safety concerns. Make sure physical distancing practices can be maintained whichever option you decide upon.
• If it is safe to do so, communicate with the other parent about your concerns and what you plan to do if someone in your household, including yourself or your child, develops flu like symptoms or is mandated to isolate themselves for a period of time.
• Work out ways for the other parent to stay in contact with the children via Skype, Zoom, WhatsApp, Facetime or more regular phone calls.
• Talk to your children about keeping their schoolwork consolidated so they can easily transport it from one home to the other without missing anything vital.
• As parents, you may need to ensure both households have access to school portals and information, as well as any supporting technology or internet access.
• Help your kids to develop a daily routine to get their school tasks and homework completed, as well as other fun activities. Talk to the school or teacher if you are unsure about what they need and convey this information to the other parent if communication between you is safe.
• Find ways to communicate with each other which ensure your children are protected from possible parental conflict, unresolved and difficult discussions, or hearing adult information. You may want to trial using email, messaging or perhaps a trusted person to assist you both if communication is too difficult or perhaps unsafe.
• This may be an opportunity for you and the other parent to role model to your children how you are working together as a team. You can agree on a combined or united message about any anticipated changes to their care and use language such as “Mum and I have decided…” or “Dad and I had a chat and have come up with this plan…”. Showing children that you are working together to make sure they are taken care of during this time will be reassuring and stabilising. Even if you haven’t reached a clear plan yet, using collective language can still be helpful for children to hear e.g. “We are working on that and as soon as we have a plan, we’ll let you know.”
• If you are finding it difficult to work out alternate arrangements together, contact a Family Dispute Resolution Practitioner or Mediator to help document some clear expectations moving forward.
• The Family Law courts are also there to help families reach urgent orders or to file consent order agreements. The courts are still open although most of their services are now electronic. You can contact the court for more information and advice.

What next?

Communication with your child’s other parent will be crucial over the coming months to navigate COVID-19 challenges. It is essential that you and your co-parent need to exercise caution and common-sense, to keep your children, and yourselves healthy and well. The Chief Justice has clearly stated that “There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk”.

Where parents have agreed on new arrangements, they should record these in writing. This will ensure they both understand what changes have been made and have a clear record of the arrangements. If you need assistance in documenting these changes, SHAW Dispute Resolution have over 40 Mediators Australia wide ready to assist you via our online platform – 1300 768 496 – www.shawdr.com.au

Parents should remember this is stressful for everyone and many children will be feeling anxious. If parents can agree on consistent rules between households and keep conflict to a minimum, it would help their children feel as secure as possible when moving between households.