Covid 19 and Separated Families
Covid 19 has been causing massive disruptions with separated families and Family Court Orders across Australia.
Information is constantly changing and there is a lot of confusion out there.
Here are some of the questions people have frequently been asking, and a short response to them:
- If there’s a changeover with children needs to take place at a public location or a school, and there is a lockdown, where will changeover take place?
You can still attend changeover at the school or location that you have been using before.
- If there’s a lockdown and we have to stay indoors, how can I do a changeover?
A lockdown still permits you to do changeovers and follow court orders.
- If a lockdown is announced and the parent that has the child is not the primary carer of that child, then should that parent hold on to the child during that period of the lockdown?
No, the parent that is not the primary carer should allow the child to resume the child’s normal routine.
- Should I still follow Family Court orders if I am worried about Covid-19?
You should still follow family court orders during covid-19 restrictions unless there is an unacceptable risk of harm to the children.
- If the Family Court orders are breached during this period, should I file a contravention application?
You should obtain legal advice before filing a contravention application.
- Is withholding the children during this period and breaching orders a reasonable excuse given the current threat of covid-19?
Withholding children during covid-19 lockdown is not acceptable.
- What is happening with my court date with the threat of covid-19? Will it still be going ahead?
The Family Court is still running normally during covid-19.
Key takeaways for Covid-19 and separated families
You should follow the current orders or arrangements that you have in place
In the event that the orders require you to effect changeover at a school and the school is closed unless there is an agreement in place that the location for changeover has changed, you should still affect the changeover at the school
Absent an alternative visitation and access agreement in writing; we recommend following the routine that you have had for visitations.
Withholding children during Covid-19
The situation becomes more serious when one parent withholds a child from visitation with the other parent.
Out of all of the enquiries we have received to date about covid-19 and withholding children, the vast majority of them result in the children continuing to see both parents.
A custodial parent may do this for a whole range of reasons.
It may be to get the other parent to pay child support, to spite their ex, or now, it could be because they fear that their child will become a risk because of covid-19.
It will be up to the parent that is breaching the court orders to establish that they had a reasonable excuse to breach the orders.
In summary, children should be spending time with both parents, despite covid-19 lockdowns or any changes as a result of the virus.
How Does COVID-19 Lockdown Affect Your Parenting Orders
The main point to remember for the covid-19 lockdown is that in most cases, it does NOT affect your parenting orders.
Court orders still need to be followed unless it would be unreasonable to do so.
Chief Justice Alstergren circulated a message on 26 March 2020 on the Family Court website in relation to covid-19 and separated families.
The key takeaways from the message are listed below:
- 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.
- 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.
In the event that you want to change setting arrangements in the court orders then you should try and communicate with the other party.
If you cannot communicate with them, try to communicate through a third party or through your lawyer.
Covid-19 vaccinations and children of separated parents
Another issue that relates to covid-19 and separated families is the issue of the covid-19 vaccination.
What will happen when children of separated parents disagree about taking the vaccine?
As with most issues about vaccinations, the courts will take the expert opinions of medical professionals as to why the vaccine is or is not necessary for that specific child.
There is no blanket rule stating that ‘all children must get vaccinated’.
Withholding Children During Covid-19
Firstly ask yourself, is what I am doing in the best interests of the children?
If I were before a family court judge, would I be considered to be unreasonable?
We strongly suggest that in the event that you are considering breaching court orders or a child’s routine, you obtain independent legal advice.
The court accepts reasonable excuses for contravention of court orders on these grounds:
- The person believed on reasonable grounds that their actions causing the contravention were necessary to protect the health or safety of a person, including themselves or the child, and
- This contravention did not last any longer than was necessary to protect the health and safety of the above person
It very well may be the case that the person who has contravened the orders may be able to establish that the current situation with the coronavirus has given them a reasonable excuse to breach the orders.
Based on the individual circumstances, they will need to establish that their actions were necessary to protect the health or safety of a person, including themselves or the child and that the contravention did not last any longer than was necessary to protect the health and safety of the above person.
Family Court and Covid-19
The Family Court and Federal Circuit Court are doing their best to handle both covid-19 and separated families.
The procedures they have in place are:
- All directions hearings and mentions will be done by telephone unless there is a reason as to why it cannot be done by telephone
- Courtrooms are going to be limited to a maximum of 8 people per room (excluding the judge and court staff)
- If there are contentious court matters (interim or final hearings), then they potentially will run in person
- Urgent children matters will take precedent over property matters
- Parties should be ready for changes to the court schedule at any time given the current situation
- Lawyers are encouraged to agree to orders by consent prior to any hearings
- All Child Dispute Conferences will be conducted by telephone. Parties will be sent dial-in details. There will be no requirement to attend Court in-person.
- Family report interviews scheduled will proceed as arranged, unless the parties are advised otherwise by CDS, but will be conducted consistent with social distancing principles as far as possible.
- To facilitate matters being dealt with electronically, legal practitioners and parties must file all documents electronically through the Comcourts portal
- If documents are unable to be efiled, then they should be emailed to the relevant registry
- Do not post or deliver hard copies of documents. There is an exception if you are unrepresented and unable to email documents.
- Subpoena viewing at all Court registries is by appointment only. Requests for an appointment should be made by emailing the relevant registry
- Lawyers and parties should only make appointments to view subpoenaed material in limited circumstances. This means that if they have a matter scheduled for hearing in the subsequent 4 weeks.
The Courts will continue to conduct court work within current parameters based on the advice of the government.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.