With the nation being encouraged to observe social distancing and isolation during the coronavirus outbreak, we as family lawyers are being asked how to best manage parenting arrangement orders and co-parenting during this unprecedented time.
Whether you have court orders or an informal agreement with your ex-partner about your children, the current crisis is likely to require some flexibility by you as parents.
It is understandable that both parents and the children may have an existing routine which you may prefer not to change. Most of these routines are in place to cater for both parents work and domestic arrangements and the children’s attendance at school.
However, if Australia will shortly follow the school closures in the United Kingdom, alternative care arrangements may need to be made for your children. It may also require alternative working arrangements that will need to be made for you and your former partner. This will apply to all families, even those who are not separated who have to make their own arrangements for their own children and stepchildren.
If there are parenting arrangements in place regulating where the children live and how they spend time with the other parent, this order will remain in place and there would be consequences if it is breached.
However, parents are being asked to use their common sense at this difficult and uncertain time. If a child’s welfare dictates that the arrangements should change then parents should try and communicate and make the judgement call together.
A parent should not use the emergency as an excuse to alter their parenting arrangements.
In most circumstances, court orders provide that arrangements for children are set out in the orders or “as otherwise agreed between the parties.” You and your children’s other parent will need to confer regarding the ability of each of you to look after the children during weekends, school holiday periods and school days if school closures become imminent.
If you are both at home working, then the children may simply stay at home with you or your former partner and you will share care of the children at the usual times in accordance with the court orders.
Unfortunately, not all parents have the ability to work from home, or there are circumstances where those who can work from home do not have the ability to supervise and care for the children while they are working from home.
If you and your ex-partner find it difficult to communicate or reach an agreement regarding the children, you may wish to use the services of a lawyer or mediator to help you negotiate a temporary care agreement while the virus persists.
Most court orders include a provision for mediation to occur where disagreement arises between parents regarding the care of children. Mediation can be organised in a very short time if needed, particularly in circumstances where schools may be closed with little notice to the parents.
Parents should as much as possible, communicate about the practicalities of contact arrangements. If your handovers are taking place in a public area or at a school or through grandparents, then parents can consider using one of their homes as a temporary measure to reduce the chance of contagion.
SELF-ISOLATION OR QUARANTINE
It will become more complicated when a parent or a child becomes unwell or must submit to self-isolation following exposure to the coronavirus. Notwithstanding the usual arrangements for children, it is best to exercise caution and take steps to avoid the children becoming unnecessarily exposed to coronavirus.
For example, a parent may have holidayed overseas or interstate, leaving the children in the other parent’s care. Despite the terms of any orders or parenting plans, it would be sensible for the children to stay in the care of the parent who is less likely to have been exposed to the virus for the period of the 14-day self-isolation required by the holidaying parent, even if that parent usually has the majority care of the children.
It would be important that arrangements for frequent phone, Skype or Facetime calls be put in place to ensure communication is maintained between the children and the self-isolating parent.
If a child becomes unwell or must self-isolate, then that child’s carers will need to exercise social distancing and maintain high levels of hygiene. If possible, other children or adults in the household who do not need to self-isolate should be looked after by other friends or relatives who may not have been exposed to the virus for the duration of the 14-day isolation period.
Based off the Government’s current advice it would be rational that those who are living with someone who as coronavirus should self-isolate for 14 days from the day the first person in the home started having symptoms. Whilst this may mean that there is a breach of a parenting order, the sensible way forward would be for the child to stay with the parent who has fallen ill until the period of self-isolation has passed. A parent in this situation should communicate with the other parent regularly. It would also be prudent upon the parent with whom the child is with to provide the absent parent with updates in relation to the child should that child subsequently fall ill.
BEST INTERESTS OF CHILDREN
Best interests of children are the most important factor in family law when making decisions regarding children. The concept of Best Interests will still be the paramount consideration when making decisions for your children during this coronavirus pandemic. It is in the best interests of the child that:
- They are protected from physical or psychological harm, abuse, neglect and family violence.
- Both parents have a meaningful involvement in the child’s life, where possible; and
- The child receives proper parenting to help reach their full potential, and each parent meets their responsibilities as a parent.
The role of the Family Court is the need to protect children from harm, abuse, neglect or family violence as more important than having a meaningful relationship with both parents. This can impact what decisions the court makes about which parent has parental responsibility and how much time they spend with each parent.
It is important to ensure that during this crisis any decision you make with respect to your children takes into consideration the best interests of the children.
As well as changes to care arrangements at times, parents will need to discuss any change in arrangements for the financial support of the children. Again, this issue is something that can be negotiated or mediated between the parents if they cannot agree to, for example, an adjustment payment made by one parent to the other as child support.
It is advisable that you inform your ex-partner if you are struggling financially, and you should be transparent as if your ex-partner does not know what is going on.
Our offices are continuing to monitor this unfolding situation and will update you as more information becomes available.
The Family Law Team at Joss Legal remain open and we are here to support you at this difficult time. Please do not hesitate to contact us if you need any advice or support.
Author: Sarah Gresham