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The Court’s Response to Resolving Parenting Disputes in the COVID-19 Climate

Resolving Parenting Disputes COVID-19

So, after a few weeks of navigating the family law system in this unprecedented health crisis, some much needed guidance on how COVID-19 is going to impact parenting arrangements has been published by the Chief Justice of both the Federal Circuit Court and Family Court of Australia, the Honourable Will Alstergren. It consumes much of four pages – but what can really be taken from it?

In a nutshell:

  1. Every case is different.
  2. The Court remains open and will intervene if needed, largely by electronic means.
  3. Keeping your child safe includes maintaining the routine of parenting arrangements.
  4. Because of the current crisis, strict compliance with a Court Order may not be possible.  If that’s the case, then think outside the square and come up with a compromise – be sensible and reasonable. Put it in writing, and get on with protecting your child from any risk of physical or emotional harm.
  5. If you remain in dispute about how best to proceed, keep your child safe but ensure that each parent continues to have some contact with a child consistent with the existing parenting arrangements if possible. Ensure that the purpose or spirit of the Order in place is respected when altering arrangements and keep your child’s best interests in mind.
  6. If you are in danger, contact the police – the perpetration or threat of family violence is never okay and never in a child’s best interests.

Whilst the Court has the best of intentions in publishing such a statement, many could be forgiven for still feeling confused as to how best to proceed at the current time.

Our anecdotal experience within the Court in the last fortnight would indicate this:

  1. Following Government Direction is essential.
  2. The Court, and its Judges and staff, are doing their absolute best in trying times.
  3. It is incumbent upon both parents to minimise fear and confusion for a child arising from the current crisis and disruption of routine by ensuring that a child is protected wholly from any mention of parental conflict over ongoing parenting arrangements. This means that no discussions take place in the presence of the child, and the child’s views are not surveyed by one parent.
  4. If someone is particularly vulnerable to COVID-19, in that they are immunocompromised and have significant co-morbidities, then strict isolation is acknowledged as the only reasonable outcome. If a child is primarily based within the household that requires isolation, then by implication a Court is likely to view the child’s physical isolation from the other parent, and removal from schooling, as reasonable if:
    1. It would be unrealistic to move to the other parent’s residential care given the likely impact of separation from the primary carer parent and other members of that household;
    2. Proper arrangements are made for the child’s home schooling; and
    3. Elaborate arrangements are made to maintain contact between the child and the other parent, and members of the other parent’s household and extended family. This may include daily, and on-demand, video conferencing contact and the like.
  5. If there is no specific vulnerability, but the general concern impacting on our community at the current time, then the physical transition of a child between households should continue, and particularly if both parents have been prepared to adopt a formal agreement relevant to initiatives to be adopted in the form of social distancing and precautions. Such agreement can be found here.

An experienced family lawyer is aware of what happens when Orders are breached, and the exercise that the Court embarks upon to determine if the breach can be reasonably excused. Consider having a chat by Zoom or telephone with one of our experienced family lawyers in relation to your personal circumstances and how best to minimise and resolve any current conflict, and protect against any damaging court proceedings in the future.

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