The global pandemic has had a significant impact on the way we all live our everyday lives. Our lives as we knew them have changed substantially, for now, and this includes ongoing parenting arrangements for separated parents.
In Australia, the states and territories have brought their own rules into force. In NSW, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) has been enacted and came into force in the State of New South Wales on 31 March 2020. This can be accessed in full at NSW Legislation Public Health COVID19 Restrictions Order.
This legislation has significantly curtailed a person’s freedom of movement and defined the self-isolation policy in place in New South Wales. In essence, the Minister directs that a person must not, without a reasonable excuse, leave the person’s place of residence and that a person must not participate in a gathering in a public place of more than 2 persons.
Although the legislation has significantly curtailed movement and participation in public gatherings of more than 2 people, the legislation provides for exceptions, including for the purposes of complying with a legal obligation.
The legislation has set out that ‘for children who do not live in the same household as their parents or siblings or one of their parents or siblings – continuing existing arrangements for access to, and contact between, parents and children or siblings’ is a reasonable excuse to leave their place of residence.
This means that parties must do all things necessary to comply with the current Court orders. The Chief Justice of the Federal Circuit and Family Court has set out a very clear expectation that parents should, generally, comply with existing Court orders in relation to parenting arrangements.
In the event of non-compliance, the usual orders in relation to enforcement apply. The Courts are continuing to operate during the COVID-19 crisis and are likely to hear all Applications brought before it.
If you are unable to comply with the current parenting orders you must explain to the other party why you are unable to comply and try to work with the other party as much as possible to find a practical solution and possibly an interim parenting arrangement until compliance with the parenting orders becomes practicable. These are extraordinary times, and so extraordinary solutions may sometimes need to be considered.
If you are in a situation where you are not able to comply with current Court orders or have concerns about doing so, it is important to obtain thorough advice as early as possible. Our experienced family lawyers have dealt with numerous new issues amidst the current COVID-19 crisis and are available to assist you and your family during this difficult time at short notice. Our lawyers have always been practical-minded, giving child focussed and common-sense advice, and now more than ever this skill is being called upon.
If you do not have any parenting orders in place you do not have a legal obligation to continue with the current parenting arrangement. However, this should not be a reason to disrupt your existing parenting arrangement unless it is actually necessary or appropriate. The COVID-19 legislation still permits children going from one parent’s household to another parent’s household.
Parents should, therefore, try as much as possible to continue their informal parenting arrangements throughout this crisis. If this is not possible parents should (if safe to do so) try to communicate and work with each other as much as possible to find a practical solution towards the parenting arrangements during the COVID-19 crisis. The focus during these situations should be on what is in the best interests of the children. During uncertain times like these, it is important that children have stability and routine in their lives and continuing with existing arrangements will likely give children this comfort.
The children’s health, safety and wellbeing should always be prioritised, and this applies equally if not more so during a global pandemic.
If the children or a member of their household have been diagnosed with COVID-19, the children’s time with the other parent may need to cease immediately, in order to comply with quarantine requirements. The opposite will apply if the other parent or a member of their household contracts COVID-19.
If a situation such as this arises and the children’s time with one parent ceases it is important that the children continue to stay in touch with the other parent through various means of electronic communication. It is always important that children continue to maintain their relationships with both parents, but more emphasis needs to be placed on preserving relationships in uncertain times so that children have the support and comfort that they need from both parents.
In times like this common sense and goodwill is key and should prevail. However, as emotions and stress levels will be high during these times there may sometimes be nothing common about common sense. Everyone in the world, including our lawyers, are facing issues none of us has likely ever thought about, and everyone is suffering in some way or another. There has never been a better time to try to work together with the other parent (if safe to do so) for the sake of your children. You may struggle with how to do this or to start this, and part of our role is to help with this when needed.
Our lawyers are all still healthy and working, although mostly from home. They are still available to talk to on email, phone and Zoom. We have found that in the last few days that people have now mostly dealt with the initial shock of the change to their lives, and are now trying to settle into new ways forward for the short (hopefully short) term. Sometimes all it needs is a bit of a “brainstorm” with your lawyer to come up with some alternatives. Sometimes we have arranged mediation quickly to work through the issues. Thankfully so far only in a very limited number of cases, have we considered it appropriate to advise tougher methods such as a Court application.
If you need help, even at short notice, and often out of hours, we are here. Stay safe.
Author: Aboorva Sundar, Family Lawyer, SB Family Lawyers