Co-written by: Chelleste Blackburn (Paralegal)
KEY TAKE OUTS:
- Parents need to work together to agree on the measures they will take in each household and how they are going to adjust their current arrangements to provide a safe environment for themselves and their children under the new circumstances due to the COVID19 pandemic.
- In the coming months it is important for individuals to cooperate and comply with current parenting orders or arrangements as much as reasonably possible.
- The current situation presents an opportunity for parents to behave as role models for their children and demonstrate their ability to work together as a team.
- There is no rule book for managing custody arrangement during COVID19 but it is important not to be overtaken by fear of confusion. Endeavor to behave respectfully and reasonably when navigating the changing circumstances.
Life as a separated parent or a parent at all can be a challenge at the best of times, but in a world currently taken over by the COVID19 pandemic, post separation parenting agreements are substantially more difficult to navigate.
In current times, the first priority is the health and safety of each individual. It’s important to follow government guidelines to reduce the risk of spreading the virus from one household to another. In the event you are separated and share children who typically travel between each home, you need to communicate with the other parent in order to safely uphold or amend your agreements. Parents need to work together to agree on the measures they will take in each household and how they are going to adjust their current arrangements to provide a safe environment for themselves and their children. In the event where there are legally binding court orders in place, it can sometimes be difficult to comply with them and keep your children safe from the risk of coronavirus. Most parents want to do the right thing by their kids, they understand the children’s relationship with each parent is important but still prioritise the need to follow advice received from the government and medical professionals to stay home and avoid certain activities.
The issue is how to balance the need to isolate and follow parenting arrangements that involve movement between homes and family members. If there is a court order or agreement in place, you must still follow this arrangement unless there is a reasonable reason not to. If parenting arrangements cannot be upheld due to the quarantine of one parent, travel restrictions, school closures or other issues, use common sense and find innovative solutions to get around these restrictions.
It may be that the children need to isolate in one home if one parent has a high risk job or one of the above issues arise. In this event, do everything in your power to ensure the children and other parent have ample access to each other through phone calls, face time, Skype, Whatsapp and video conferences. It’s important to allow children and parents to maintain their relationship and have equivalent time through digital methods as they would have had in person. In these unprecedented times, it is difficult to navigate the best course of action. It is important to try and maintain the routine previously agreed upon even if it is through different measures than in the past.
In the event that your changeover location is no longer viable, you may need to find creative solutions such as a petrol station, grocery store or police station. These are places that remain open through quarantine and a police station provides added safety for those with such concerns. When doing changeovers, make sure to maintain physical distancing and wear face masks. Communication between parents is key, inform each other of your concerns and your plans. In the event you or your child develop flu like symptoms or need to isolate themselves, keep all parties updated. Ensure you are providing your children with a strong daily routine for their school tasks and homework. Try and include fun and creative activities to continue to stimulate their growing brains. Make sure both parents are on the same wavelength for the school routines for the children and are in contact with the children’s teachers.
In New Zealand, there was previously a mandate that children could not move between houses. In Australia, we have not reached this level of lock down fortunately. The Chief Justice put out a statement stating the Courts are still open and the Court system will continue to work through the COVID19 pandemic. However, there are delays based on this. In the coming months it is important for individuals to cooperate and comply with current orders or arrangements as much as possible. It is important to note that you can amend parenting agreements or orders, this can occur at any time but it is especially useful in the current situation. Both parties need to agree to the amendments, they can then go through mediators or lawyers to make these updates to the arrangement.
Relationships Australia has fielded a flood of calls on how to manage childcare arrangements during the COVID19 pandemic. Their National Executive Officer, Nick Tebbey has stated, “It’s a pretty unprecedented time of stress and anxiety for a lot of people, and when we have families who are separated, or going through the separation process, it’s only adding to what’s already a challenging period for them.” Court orders surrounding shared custody remain in place and should be complied with as much as possible, however, in a March statement the Family Court of Australia acknowledged “the highly unusual circumstances now faced by Australian parents and carers” making compliance with these orders difficult, and in some cases impossible.
If one parent is not taking the COVID19 circumstances seriously and you are concerned for your child’s welfare, there are options you can follow such as a contravention order. However, courts do take into account reasonable excuses. Withholding a child due to a concern over contact with someone who is high risk for COVID19 will likely be seen as a reasonable excuse by a Judge given it was a global pandemic. However, please do not unfairly withhold your children from one party. You must have a reasonable excuse as to why you are withholding the children, if at all possible, try to come to a mutual arrangement and substitute the time through electronic methods.
It is paramount that children come first in all cases, as advised by Annabel Murray from Australia Family Lawyers, “It’s a big challenge for children because they’re missing out on the connections with their peer groups and face-to-face time with their friends,” she says. Children are missing out on time with not only one parent but also the other members of that parent’s household, such as grandparents and stepsiblings. Murray also warns parents to be “very careful” about withholding time with children from an ex-partner. “When parents do reach a new arrangement, it would certainly be prudent for them to do that in writing so that both of them are very clear about it.”
The current situation does present an opportunity for parents to behave as role models for their children and demonstrate their ability to work together as a team. Try and agree on a combined united message to provide stability for you children in these uncertain times. Communicate with each other to ensure your children are protected from possible parental conflict and do not overhear adult information. This can be done through a trusted third party, mediator or legal representative if communication is too difficult or perhaps unsafe. There are still services available to support families in order to assist parties in coming to agreements and solutions that work for all parties throughout this difficult time. Further to this, the Family Law courts are still operating and are there to help families reach urgent orders or to file consent order agreements if necessary. The courts have been open throughout the COVID19 pandemic so far and will continue to stay open, although most services are now electronic.
In the event you are required to isolate, immediately inform the other party. Children or any individual should not be put at risk of contracting COVID19, this means that you must update the other parent if you have been exposed or were at risk of exposure immediately and then self-isolate as required. Families and all members of society need to be cooperative and patient in navigating the new norms and the effects of the changes occurring in society.
There is no rule book for managing custody arrangement during COVID19 but it is important not to be overtaken by fear of confusion. This is a situation in which people must come together and work in unity if at all possible. Endeavor to behave in a reasonable and kind manner. As stated by Kish Nilaweera, a parent going through new custody arrangements due to COVID19, “It’s down to the parents and their ability to work together. Any parent who says it’s too hard is putting themselves before their children.” Do not forget that there are still services available to you to assist you in coming to updated agreements and navigate these tricky circumstances.
ABOUT LUISA GAETANI:
Luisa is a Senior Associate at Coutts Lawyers Conveyancers and head of our Family and Criminal Law divisions. Luisa has practiced solely in the areas of criminal law and family law. It is her sensitive yet pragmatic approach that has allowed her to develop a strong rapport and build trusting relationships with her clients. Should a client’s matter proceed to court, Luisa has the skillset and experience to assist her clients through this process and where required, will draw upon her network of barristers to further benefit her client’s outcomes.
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