There can be no dispute that the ever changing world that we now find ourselves in has had the result of straining co-parenting relationships, particularly where the situation may have been fraught to start with. We wanted to provide some tips on how to negotiate with the other parent around changes to your parenting arrangement that may be needed to react to government directives and our generally changing lives at this time.
It is important to note that there is a difference between parenting plans, written agreements, verbal agreements and Court ordered time and the following is simply a starting point in respect negotiation. Your personal situation may require specific advice and our team remains available to assist you at this time.
Remember that everything in family law is about the best interests of the child. This can often cause difficulties between parents where there may be a disagreement about what the best interests actually are.
It may be that the best interests include not changing anything from the usual situation. This provides the child with stability, continuing connection with the larger family unit, possibly siblings and other people. The child is possibly already in a situation where their education (daycare or school) has changed with little notice, they may not be seeing their friends or family in the same way they previously had. There is a strong likelihood that even things such as the everyday routine at home, things like shopping, going to the park or walking the dogs has changed, a parent working from home, or siblings being together all of the time or none of the time has changed.
Children may be suffering with the changes that are already required, and therefore it may not be in their best interests to bring in another change to their usual routine that they have to deal with. As stated by the Honourable Chief Justice Alstergren of the Family Court (talking on behalf of the Family and Federal Circuit Courts in his paper “Parenting Orders and Covid-19” released on 26 March 2020:
“Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relations to parenting arrangements. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting Orders… in the highly unusual circumstances now faced by Australian parents and carers, there may be situations that arise that make strict compliance with current orders very difficult if not impossible.”
While the above may be the case, there are circumstances that may warrant a change in the time spent between homes. This could be because of a person, maybe a primary parent, who has an immune compromised position and has to strictly self-isolate for example. While this could be very hard on the child, it could be more detrimental to a child if that parent was to become significantly unwell and unable to continue to parent the child for a short or longer term period. In this circumstance, we have to continue to look at the best interests of the child – would it be better for the child to not have face to face time with the other parent, and maintain the relationship (as best they can) via video calls/skype/zoom or facetime?
The following steps can still be taken, albeit primarily by video calls, and can assist people through the process:
- If you feel safe and can, talk to the other parent. Co-parenting is always the preferred method, however difficult it is. If you can jointly come to an agreement as to what should happen for your child or children, it is usually in the best interests of the child. This action is one that should be taken throughout every other step, provided you are safe to do so. Sometimes as new information comes to light, a parent that may have been initially hesitant or against a proposal, may change their mind. If possible, try and keep the communication lines open. Changes should be agreed in writing, which can include text message, email or letter – so that the “agreement” can be put before the Court if there was a later dispute about it, and in circumstances where there may be more than one change over the time of the situation.It can be highly emotive and difficult, and it is important that all communications are respectful, considered and reasonable in the actual circumstances of your family.
- Talk to your solicitor or seek legal assistance. The best steps forward are always those that accord with the information that is available at the time, and particularly when the information is so rapidly evolving. See if they can assist to either provide simple advice as to offers that can be made and how to go about it, or provide a more formal approach and raise the issues and possible solution with the other parent or their solicitor on your behalf.
- Talk to a mediation provider. Most are still operating, and while there may be a delay in the mediation occurring, they may also be able to discuss the urgent issues, and provide some assistance for the immediate issues.
- If you have issues of safety or immediate concerns with Orders, you may need to consider applying to the Court to have them amended. The Family Court has strongly advised that parents should not be limiting time between a child and the other parent, without very strong reasons for doing so. To do so should be the exception to the rule, and there has been discussion from the Court that parents using the current health crisis as a tool to limit time, may be dealt with harshly by the Court if that comes to light. With saying that, if you were to do changeover at a place that is no longer open, or operational, it is expected that parents, despite any animosity they may hold for each other, would come up with another appropriate location for a changeover. The closing of a location is not enough of a reason to stop time for the other parent.
If your child is in another state, you may also need to consider how that is going to work, given the restrictions on crossing borders. It is imperative you obtain legal advice in respect of this, particular to your case before assuming a certain course of action.
This is where there is a strong difference between Orders and other types of agreements. If there is agreement verbally or by parenting plan, it is not directly enforceable by a Court, but the Court takes strong heed of what such agreement is saying, and how the time should happen, and the other parent is permitted to provide such agreement to the Court if proceedings are commenced.
If you feel that you need assistance, please do not hesitate to contact us. We have team of experienced family law solicitors who can assist parties through this process, with the aim of an appropriate result in the child’s best interests based on your particular matter. You can also download our free guides on parenting arrangements here.