There are a growing number of Australians living in isolation as a result of recent restrictions on our daily lives. And co-parenting doesn’t help the situation.
Parents working from home while their children are at home (or in some instances at school, for the children of essential workers) causes stress for many families.
Co-parenting under these new and often changing circumstances is a source of added anxiety for separated parents.
At Ryan & Seton Lawyers, we support families on the Coast and here we offer advice and tips for all co-parents adapting to difficult pandemic situations and conditions.
How Co-Parenting Orders Work During A Pandemic
Parents are still legally bound by court orders, even in times of a global pandemic.
Unless a reasonable excuse exists, parents must meet their responsibilities.
It’s not enough to simply use COVID-19 as a “justification” not to follow the orders of the Federal Circuit and Family Court. Assessment criteria include parents’ efforts to address and resolve challenges caused by COVID-19 as well as their participation in finding solutions.
With COVID-19, however, strict compliance with court orders may prove difficult, if not impossible when it comes to co-parenting.
An order, for example, may require that the child be picked up from school or a contact centre, but both are likely closed. Alternatives must be found when orders are not feasible, such as swapping changeover locations.
Statement from Chief Justice on Family Court Orders
The Chief Justice of the Family Court and Federal Circuit Court of Australia said if parents cannot reach agreement on new arrangements, they should generally follow their court orders unless their children’s safety is compromised.
In a media release dated 26 March 2020, the Family Court of Australia and the Federal Circuit Court of Australia Chief Justice provided the following helpful directions:
- It is imperative that parents and carers act in the best interests of their children. This includes ensuring their children’s safety and wellbeing. Whilst the Courts make orders that are determined to be in the best interests of a child, caring for and determining the practical day-to-day best interests of a child is primarily the responsibility of parents and carers.
- 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.
- In the highly unusual circumstances now faced by Australian parents and carers, there may be situations that arise that make strict compliance with court orders very difficult, if not impossible. This may be caused, for instance, where orders stipulate that contact with a parent occurs at a designated contact centre, which may not currently be operating. Or, the “pick up” arrangements of a child may nominate a particular school, and that school is now closed. Many state borders are also closed. In addition, there may be genuine safety issues that have arisen whereby one parent, or someone in close contact with that parent, has been exposed to COVID-19, and this may restrict the safe movement of a child from one house to another.
- As a first step, and only if it is safe to do so, parties should communicate with each other about their ability to comply with current orders and they should attempt to find a practical solution to these difficulties. These should be considered sensibly and reasonably. Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent when attempting to reach new or revised arrangements. This includes understanding that family members are important to children and the risk of infection to vulnerable members of the child’s family and household should also be considered.
- If an agreement can be reached about new parenting arrangements, even if they are to be adjusted for a short period of time, this agreement should ideally be in writing, even if by way of email, text message or WhatsApp between each other. This will be particularly important if there are later family law hearings and will assist all concerned, including the Court, to understand what agreement may have been reached.
- Parents and carers can also mediate their differences through lawyers and electronic mediation services are available.
- If an agreement has been reached and consent orders have been developed to outline new or varied parenting orders, consent order applications can be filed electronically with the Court. This process is quick and usually conducted without a hearing.
- If the parties are unable to agree to vary the arrangement, or if it is unsafe to do so, and one or both parents continue to have real concerns, the parties are at liberty to approach the Court electronically and seek a variation of the orders.
- Where there is no agreement, parents should keep the children safe until the dispute can be resolved. Also, during this period of dispute, parents should ensure that each parent or carer continues to have some contact with the children consistent with the parenting arrangements such as by videoconferencing, social media, or if that is not possible, by telephone.
- At all times, parents or carers must act reasonably. To act reasonably, or to have a reasonable excuse for not complying with Court orders, is a matter that is considered by the Court (pursuant to s70NAE of the Family Law Act 1975(Cth)).
- 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.
- The courts appreciate that agreement by mutual consent may not be reached, particularly if one party has concern for their physical safety. Therefore, the courts advise that if a parent, carer or child is in immediate danger, they should contact their local police.
- The perpetration or threat of family violence is never in the best interests of the child. Again, therefore, the Courts advise that if a parent, carer or child is in immediate danger, they should contact their local police and seek medical advice if required.
Further Resources On Co-Parenting
You can talk with the Children’s Contact Service (CCS) staff about ways they could support families staying connected at the present time.
And, if it’s safe to do so, talk with your ex-partner about alternate options and solutions.
Please bear in mind, in cases where there are or have been domestic abuse or violence concerns and an Apprehended Domestic Violence Order (ADVO) is in place, you may need to get legal advice to ensure you are not going to contravene any court orders.
A parent who wishes to change the parenting arrangements should do so if the change is in the best interests of the children and with both parents’ consent.
Families should discuss how they are going to adhere to current orders with their kids and they should try to find practical solutions.
In order to reduce the risk of infection to vulnerable family members, a sensible and reasonable approach is recommended.
Key Questions For Co-Parents To Ask In A Pandemic
To help co-parents discuss the possibility of needing to change their child’s time with each parent, here are some questions to consider:
- Would the child really benefit from continuing to follow the parenting arrangements in place and switching back and forth between homes?
- What is a better way to support homeschooling – one parent or both? Are both homes equally connected to the internet, for example?
- Which parent works in a job that brings more public contact, thereby putting household members at more risk?
- How much contact do other residents of the home have with the public?
- Do you have an immunocompromised member of the household, someone who is not vaccinated, or a member over the age of 60?
- Do the outdoor spaces or playground provide children with more space to play and get exercise while still maintaining the recommended physical distance?
Parents need to honestly consider what changes could be made now to keep their children and others in the home safe.
How Co-Parenting Works For Kids
- Focus on finding a solution together when you have a conversation.
- Communicate openly. Respond promptly to all communications (messages, texts, emails, etc.) with your co-parent.
- Don’t keep score.
- Maintain social connection despite physical distance. You and your co-parent can arrange virtual visits. Schedule a time when the child can be contacted via video.
- Keep a routine. The children benefit from this, especially if they are worried about being schooled at home and will miss their friends, sports, and different activities.
- You may need to make back-up plans for the scenario where one co-parent falls ill and must isolate themselves. In case of self-isolation, prepare ahead of time. Establish a plan to prevent future conflict.
- Follow information from reliable sources. Members of the community face a variety of restrictions regarding their movement and interactions. Situations change almost every day, so maintaining current arrangements may not be possible.
- Take time to become comfortable together after this crisis ends.
Parents Are Not Alone – Stay Connected
The pandemic is causing some uncomfortable changes for everyone.
Children’s care and schooling and your employment have been impacted, changing our daily routines.
Please remind your child that we will get through this, that some changes will only last a short time, and most importantly that they are loved.
Co-parents need to work together now more than ever to make decisions that work best for their family.
It’s a perfect opportunity for co-parents to truly make decisions in the best interest of the children they both love.
Please remember the Family Law Courts are also there to help families obtain urgent orders or to file consent orders, if required.
The courts are still open although most of their services are now electronic.
You can contact the court for more information and advice about their processes..
This is not an easy time. There is a lot of uncertainty about what this pandemic is going to mean for the future in terms of employment, schooling, health and our families.
If you would like to contact one of our team members at Ryan & Seton Lawyers we will help you make a decision about what kind of services you may need.
Co-Parenting In A Pandemic FAQs
+ I share custody, and my ex-partner has a different approach to social distancing. I’m worried my kids have a greater risk of exposure because of it. What should I do?
It’s not likely you’ll be able to come to an agreement with your ex-partner, but your children must always come first. You might want to talk through your fears so that you can come to an agreement that both of you find acceptable. Perhaps you could discuss with your ex-partner the importance of mask-wearing and limiting contact with others. The only way to resolve any concerns about your child’s safety is to talk through your issues regarding your current care arrangements. But as always, remain calm.
+ How does co-parenting across state borders work in a pandemic?
Having children move from one household to another across state and territory boundaries can be very confusing for parents living in border towns with shared-parenting arrangements (or simply where parents live in different states and territories)..
States and territories have different rules when it comes to crossing borders, and parents don’t have any national guidelines on how to handle this issue. This is evident in the state boundary between Victoria and New South Wales. “NSW-Victoria border region residents” are defined by the New South Wales government. No travel declaration is required when these people enter New South Wales.
As far as the other side of the border is concerned, due to shared parenting arrangements, the Victorian government currently does not require a permit for travellers to enter and exit Victoria. If you are entering a “red zone”, however, quarantine procedures may apply. The requirements and exemptions are subject to change as outbreaks occur in different regions.
These established exemptions allow families in these circumstances to travel across state or territory borders. If you qualify for an exemption in this situation, border control personnel may request a copy of the relevant court order. By ensuring you carry a hard copy of the relevant court order (or at least an electronic copy) and current photo identification with you whenever you cross state or territory borders with a pandemic restriction in effect, you can avoid a lot of trouble.
Related Co-Parenting COVID-19 Pandemic Links
- NSW Health: COVID-19
- Co-parenting during Coronavirus
- Federal Circuit and Family Court of Australia
- Co-parenting in the COVID-19 world – Avoiding a crisis
- A range of mobile apps from the Government of interest to families
- NSW Government: Top parenting apps
- SMH: Judges mandate app for separated parents