Do I hand over my child during a pandemic???
The team at Matthew Mitchell Solicitors have been flooded with queries as to whether Parenting Orders made under the Family Law Act need to be, or should be, complied with in light of the current COVID-19 pandemic. As is often the case in the law, there isn’t a simple yes or no answer.
The Family Law Act 1975 makes it clear that parents and carers are to act in the best interests of their children. This includes, but is certainly not limited to, parents keeping their children healthy and safe. Parents are also obligated to comply with Orders of the Court that relate to the living arrangements and time spending arrangements for children. However, compliance with Orders of the Court that relate to living arrangements and time spending arrangements will be increasingly difficult as further social restrictions are implemented by the Australian Government.
As social restrictions tighten, following your Court Order to the letter may no longer be physically possible. For example, State borders may be closed, a particular handover location may be shut, a location for time spending such as a playground, play café or a Children’s Contact Service may no longer be operational, limiting your capacity to comply with your Orders. There is also the possibility of genuine safety concerns if a parent, or someone that parent is in regular contact with, has been exposed to COVID-19, which leads to the question of how are parents to facilitate the safe movement of a child between households in those circumstances.
If you find yourself in such a situation, we make the following general recommendations:
- Stay child focused – Do not use the current crisis as an opportunity to frustrate the other parent’s time.
- If safe to do so, and communication is not prohibited by Intervention Order or the like, attempt to communicate with the other parent about your ability to comply with the orders and attempt to find a workable and reasonable solution to the problem, keeping in mind the safety of the child or children and the risk of infection to vulnerable members of the child’s family.
- If an agreement can be reached, commit it to writing.
- If you are struggling to reach an agreement, many Dispute Resolution Services are offering their services via telephone or video conference.
- Speak to a lawyer – a Family lawyer will be able to provide you advice about your specific situation.
- If no agreement is reached, parents should keep the child or children safe until the dispute can be resolved.
- During any period of dispute ensure that the other parent is continuing to have contact with the child or children consistent with the Parenting Orders. You may wish to consider tools such as Facetime, Skype, Zoom or if not suitable, the telephone.
- Act reasonably. If you are not complying with an Order of the Court, the reasonableness of your actions will be considered if or when your matter ends up before the Court.
- If Orders are to be varied during this time, at all times act in the best interests of the children and try wherever possible to ensure that any new arrangement reflects the spirit of the previous arrangement or Order.
If you find yourself in such a situation, we make the following general recommendations:
- Stay child focused – Do not use the current crisis as an opportunity to frustrate the other parent’s time.
- If safe to do so, and communication is not prohibited by Intervention Order or the like, attempt to communicate with the other parent about your ability to comply with the orders and attempt to find a workable and reasonable solution to the problem, keeping in mind the safety of the child or children and the risk of infection to vulnerable members of the child’s family.
- If an agreement can be reached, commit it to writing.
- If you are struggling to reach an agreement, many Dispute Resolution Services are offering their services via telephone or video conference.
- Speak to a lawyer – a Family lawyer will be able to provide you advice about your specific situation.
- If no agreement is reached, parents should keep the child or children safe until the dispute can be resolved.
- During any period of dispute ensure that the other parent is continuing to have contact with the child or children consistent with the Parenting Orders. You may wish to consider tools such as Facetime, Skype, Zoom or if not suitable, the telephone.
- Act reasonably. If you are not complying with an Order of the Court, the reasonableness of your actions will be considered if or when your matter ends up before the Court.
- If Orders are to be varied during this time, at all times act in the best interests of the children and try wherever possible to ensure that any new arrangement reflects the spirit of the previous arrangement or Order.
It should also be noted that if you, another parent, or someone who is in regular contact with your child, displays flu like symptoms or has a positive COVID-19 diagnosis, then there should be compliance with the Australian Government’s policy in respect of self-isolation and medical advice should be sought.
As always, each person’s situation is unique, and we recommend that you seek legal advice before departing from a Court Order.
If you think your child is in immediate danger contact your local police and if required seek medical advice.
As always, the legal team at Matthew Mitchell Solicitors are here to help should you require it.
We wish you well and good health in this current climate.
Matthew Mitchell Solicitors.