Social Distancing and Time Spending
As we adapt to a new normal where we are encouraged to be practising social distancing and self-isolation, many families are quarantining themselves from everyone but their immediate families. For recently separated families or those that are going through the Family Court proceedings, the situation is made all that more complex as they are co-parenting in the Covid-19 pandemic.
As family lawyers we are being flooded with calls from anxious clients who are worried about facilitating time spending in circumstances where the other parent refuses to practice social distancing. Contemplating keeping a child away from the other parent, in violation of a parenting plan or court orders is a significant step and can have serious ramifications. So how are separated or divorced parents supposed to navigate this complex and emotional situation and ensure their child’s safety?
Communication is Key
In the current climate the best thing separated, or divorced parents can do for their child is to try and find some common ground. As workplaces shut down or employees begin to work remotely, this might be an opportunity to adjust current schedules so that the child can be cared for by someone else.
Not only does this enable the child to spend additional time with the other parent but it also reduces the amount of money you might have otherwise spent on childcare or OSHC and it limits the circle of people the child is exposed to.
If communication with your former partner is significantly strained, consider seeking the assistance of a lawyer or community-based mediators such as Relationships Australia. Whilst many of these services will be working remotely at this time, mediations are still being offered via telephone where deemed appropriate.
Breaching Court Orders
The decision to breach court orders should not be made lightly. Deliberate contraventions of parenting orders can carry significant penalties such as the Court:
ordering you to pay all or some of the legal costs of the other parties; or
ordering you to pay compensation for reasonable expenses lost as a result of the contravention; or
require you to participate in community service; or
ordering you to pay a fine; or
ordering you to serve a sentence of imprisonment.
Notwithstanding the penalties that may be imposed, it is important to consider how breaching the court orders may impact your child. Arguably, where a child has had regular time spending with the other parent, unless their safety is at risk then it would not be in their best interests for the time spending o cease altogether. Particularly in a situation such as this where we have no idea how long it will be until things can go back to normal.
What if the other parent tests positive for COVID-19
The Family Law Act contemplates that there may be a reasonable excuse for contravening court orders. Whilst this is clearly uncharted territory, we can assume that if the other parent (or a person with whom they live) has tested positive for the COVID-19 virus, the Court would likely consider that the breach was necessary to protect the health and safety of the child. However, this does not give you a blanket ‘go-ahead’ to cancel all further time spending. The Family Law Act makes it quite clear that the contravention cannot last longer than necessary to protect the health and safety of the child.
Key Points to remember
The current situation is stressful for both parents and children alike. Children do not need the added stress of having to be exposed to parental conflict.
At present, both the Family Court of Australia and Federal Circuit Court of Australia are essentially closed for all matters other than those that are deemed urgent. This means that separated and divorced parents will need to use their best endeavours to navigate this situation without judicial involvement.
If you simply cannot communicate with your ex, seek the assistance of a lawyer of a community based mediator.
At the end of the day family law judges are likely to be pleased with parents who have been able to work together to ensure that the best interests of their child have been met and significantly frown upon those parents who put their own interests before their children’s, and refused to cooperate with a willing and reasonable parent.
Call us on 84519040 if you require assistance.