Parenting Orders and Contravention in Times of Coronavirus

60–Second Summary

The challenges faced by the Community amid COVID-19 are many, and often unforeseen as country after country imposes “lockdown” measures which increasingly restrict daily life – socially, economically, spiritually and physically.

But in the family law sphere, separated parents are encountering a new range of challenges following government directions for people to stay at home except in circumstances of “essential services and travel”.

It has to be said that, unfortunately, some parents view the Coronavirus as a means of legitimately preventing the other parent from spending any time with the children, and using their perception of government guidelines as a means of shutting down contact between the children and (usually) the non-custodial parent.

So, the question arises – do children of separated families still need to move between households? Can the existence of COVID-19 provide a reasonable excuse for breaching well-established, often long-standing Court Orders?

We will explore the obligations on parents during this unprecedented pandemic, and whether there exists a “get out” clause with respect to existing Court Orders.

Secondly, as professionals at the sharp end of family law, we regrettably encounter all too many cases where one party will try to use any excuse to alienate the children from the other parent, and Coronavirus may be viewed as presenting the perfect “justification” to manipulate or restrict such contact, or cut it out altogether.

So how can parents cope with this additional stress, and the possibility of being blocked – ostensibly by government regulations – from seeing their children?

 

Contravention of a Parenting Order

Under section 70NAC of the Family Law Act 1975 (Cth) and the equivalent section 205C of the Family Court Act 1997 (WA), a person is taken to have contravened an order if, and only if:

1. where the person is bound by the order – he or she has:
   1. intentionally failed to comply with the order; or
   2. made no reasonable attempt to comply with the order; or
2. in any other case – he or she has:
   1. intentionally prevented compliance with the order by a person who is bound by it; or
   2. aided or abetted a contravention of the order by a person who is bound by it.

 

The Acts are clear that it is an offence to breach a parenting order. A person breaches an order if they intentionally failed to comply with an order or made no reasonable attempt to comply with an order. If you intend to not comply with an order, you must demonstrate to the Court that you had a reasonable excuse for contravening that order. If your sole reason to do so is because of issues surrounding COVID-19, the Court will likely take a pragmatic and common-sense approach to applications made at this time.

 

The General Rule

Despite rumour and local mythology, the general formal guidance by the Chief Justice of the Family Court of Australia is that separated parents are expected to continue to comply with existing Parenting Orders.

In a media release dated 26 March 2020, the Family Court of Australia and the Federal Circuit Court of Australia stated:

• “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.
• There may be situations that arise that make strict compliance with current 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 school, and that school is now closed.
• 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”.

 

Coronavirus should not be used as a means of preventing contact between parents and children if other, sensible workable solutions can be found. If the Orders say that handover occurs at McDonald’s, and McDonald’s is closed – then agree on another nearby location.

As a parent, you are expected to act reasonably and in the best interests of your children. The fact that the specified handover place may not be available is not an excuse.

If your children, however, have just returned from a trip to Bali (or anywhere overseas) then 14-day self-isolation regulations will apply. To insist on spending time with the children during that period would not be reasonable, and any attempt to bring a Contravention Application based on the children not being made available would have a high chance of failure – and a potential Costs Order against you…

If your working hours are altered due to the virus, and this impacts upon parenting/handover arrangements, let the other parent know at the earliest possible opportunity, and look for a workable solution that takes into account the change in circumstances, but also affords reasonable time between the children and both parents.

Remember, Court Orders are a “framework”, which can be worked around to accommodate changes in circumstances, and Coronavirus is an extraneous affliction which cannot be said to be “self-generated”. Oftentimes, people have a choice or input into a change in circumstances, but not with this.

Also, try not to “dump” issues on the children or the other parent at the last minute, and give everyone time to adjust to a new regime which – presumably – could be in place for months rather than weeks.

If schools are closed due to the virus, and that is where handover normally occurs, then discuss with the other parent where might be a suitable neutral location, and where the implementation of social distancing will not be a problem. If there are issues with security or proof of what happened at handover, choose a place with CCTV.

If you routinely have daily care of the children but are now quarantined or in self-isolation awaiting CV test results, you realistically need to suspend your time with your children, regardless of the current Orders. This is a government directive. Explain to your children in an age-appropriate way what quarantine requires and the reason they can’t do “face-to-face” visits.

Many parents have Court-ordered arrangements that mean children must traverse State borders for “contact” to occur. Most States now have border restrictions in place that require all persons to self-isolate for 14 days after crossing the border (if you can cross it at all) unless you qualify for certain specified exemptions.

Please note that claiming implementation of a Court Order will not provide you with an automatic exemption to cross State boundaries, and contravention proceedings brought in such circumstances are very unlikely to succeed. Consider make-up time during the next school holidays, and perhaps extend Zoom/Facetime/Skype contact in the intervening period.

If your children display any signs of Coronavirus, you should let the other parent know immediately, even if there is no specific Order obliging you to do so. Be honest. This pandemic will not last forever, but failure to be “up-front” and candid about the health of your children (or others their health may affect) could seriously damage your future relationship.

 

What if the other parent does not take this situation seriously?

Hopefully, the past few weeks will leave no-one in any doubt about how serious this pandemic is, and what measures have to be put in place to bring the community back to normality.

Even if you are not getting on well post-separation, the health of your children and extended family must come before your personal feelings. Talk to the other parent about the current government requirements/restrictions. Even though Australia is not suffering in the same way as e.g. Italy, Spain or New York, discuss mutual vigilance about your children washing their hands, using sanitizer, not touching their faces and refraining from becoming physically too close to third parties.

Following basic, uncontroversial ground rules will provide peace of mind and help get all of us over this crisis more quickly. To call a spade a spade, the other parent may not care about you contracting Coronavirus and suffering physically and economically, but they should care about how this pandemic affects their children.

As a matter of strategy, please ensure that any change of arrangements is noted in writing, to avoid unnecessary disputes “down the track”. However, by the same token make sure you don’t enter into any formal Parenting Plans (or if you do, ensure to be explicit about the temporary nature or duration of any change), as this might have the effect of over-riding the existing Court Orders.

 

Lessons from COVID-19 Decision in Canada

On 24 March 2020, a Judge from the Superior Court of Justice in the Canadian Family Court heard an urgent contravention application by a mother to suspend all in-person access/contact time with the father because of COVID-19.  

The mother expressed concerns that the father would not maintain social distancing for the child during the period of access. She also did not want the child leaving the home for any reason — including seeing the father. 

The Court found that:

1. COVID-19 parenting issues will be dealt with on a “case by case” basis.
2. In most situations, there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to — including strict social distancing.
3. For the sake of the child, we must find ways to maintain important parental relationships – and above all, we have to find ways to do it safely. (Ribeiro v Wright, File No:1199/19). 

 

Finally, we refer you to the Family Court of Western Australia website which contains the most up-to-date information about the Court’s response and processes in the face of COVID-19: www.familycourt.wa.gov.au.

Otherwise, DS Family Law remains open and available to provide you with information about all matters of family law and how the current pandemic might affect your parental rights, entitlements and the Court’s usual procedure.

 

Key Takeaways

1. Notwithstanding the Coronavirus pandemic, separated parents are expected to keep complying with existing parenting orders.
2. If specific compliance is not strictly possible because e.g. the handover location is not available, parents must take a pragmatic, common-sense approach and modify the Orders to the extent necessary to implement their intention.
3. Sensible and proper communication with the other parent is key to ensuring that the effect of the existing Orders is carried out, thus maintaining the children’s best interests.
4. In cases clearly requiring self-isolation or where State boundary restrictions apply, Contravention Applications against a parent for withholding “contact” with children are perhaps unlikely to be successful.
5. Discuss the virus, its implications and how your children can help protect themselves from it in an age-appropriate way.