March 26, 2020 by Todd
I have just read a very interesting article by Marcia Zug, who is a Professor of Family Law at the University of South Carolina, about co-parenting in the COVID-19 pandemic. You can find the article here. It is written from an American perspective, but many of the lessons are the same in the Australian context. There are two key themes arising from the article – circumstances in which an order or status quo is breached and the more practical consideration of separated parents working together.
Breach of an order, parenting plan or status quo
Some parents might be considering whether to withhold their child from the other parent. They may just be concerned about the mere existence of COVID-19. They may think that they have a different view from the other parent about the protections that need to be put in place for their child in response to COVID-19. The other parent or someone in their household may be under quarantine or they may have been diagnosed with coronavirus.
If there are orders in place, a breach of those orders would ordinarily provide a basis for the other party to file what is called a contravention application. That is a particular type of parenting application which, at its conclusion, may lead to a court imposing criminal law-like penalties where a breach was not justified. The Family Law Act uses the expression ‘reasonable excuse’ to identify what circumstances justify a breach. Broadly speaking, the Court will look at the circumstances of a case and determine whether such a breach was necessary to protect the health or safety of a person. Even if that was the case, though, that is not the end of the matter – the breach may only be justified for a certain period of time and not for an undefined period.
If there are no orders in place, a contravention application is not available. However, judges tend to frown on one party taking matters into their own hands where there was not something akin to a ‘reasonable excuse’ which justifies them doing so, such as a sufficient risk of harm to the child. Ordinarily, in the absence of some sufficient risk of harm, the Court’s general attitude is that parents should work together, communicate with each other and not make unilateral decisions about a child.
In the COVID-19 context, how closely the virus has impacted your family may be important in determining whether reasonable excuse can be established. If you are concerned about whether or not you have a ‘reasonable excuse’, or if you are on the receiving end, so to speak, it is important to get legal advice.
Professor Zug also writes about the importance of parents working together and finding common ground. Her advice on this point is just as helpful in the Australian context. Parenting disputes often arise because parents stop talking to each other, and children often end up getting caught in the cross-fire. Speak to each other. If you have concerns, tell the other parent. Listen to what the other parent is saying. Try to find common ground.
Be creative. If time cannot occur due, let’s say, to self-isolation requirements, that is not a blank cheque to cut off the other parent from your child. There are many and varied ways of maintaining contact in the digital age – including telephone communication or video communication using platforms such as Skype, Zoom, and Facebook Messenger.
Keep the needs of your child at the forefront of your mind. They will no doubt have some anxiety about what is happening as this pandemic continues and, when it is over, they will thank you for putting their needs first. Because, at the end of the day, the focus of a court deciding a parenting dispute will be on just that – the best interests of the child.
If you have any questions, feel free to call us on 02 4964 1856. While we are not currently accepting appointments in person, we are able to offer telephone and video appointments. Let our knowledge be your edge.
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