FAMILY LAW
Parenting during a pandemic: Obligations to create stable environments for children VIRGINIA BUI, SENIOR ASSOCIATE, JACQUI ION LAWYERS
A
s lawyers, I think it is reasonable to say that the best of us enjoy some degree of stability and dare I say it, law and order. It is also fair to say that structure, routine and predictability, to a significant degree, has well and truly been tossed out the window with the happenings of the world over the last 18 months or so. And by that, of course I am speaking of the impact of the Covid-19 pandemic. I challenge you to name an area of life that hasn’t been touched (or you might prefer to say marred) by the pandemic. I have no doubt that it will be a talking point in history lessons in decades to come. Closer to home for me, in the Family Law space, the effects of the pandemic have been no stranger. The most common questions which have been asked of Family Lawyers have included: • Can I leave my home to effect handover? • What if my handover location is in a hotspot? • What if my former partner is an essential worker and has a higher risk of exposure to Covid-19? • What are my obligations if my child is quarantining and/or awaiting the results of a Covid-19 test? The answer to these provocations will always start with what legal structure, or lack thereof, have the parents used to record their care arrangements. To set the scene, there are a number of ways in which parents can choose to have their care arrangements recorded. A smaller proportion choose not to record the arrangements at all and are able to reach an agreement directly with their former partner. They are referred to as informal
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arrangements. There are then Parenting Plans, which are the middle ground. Parenting Plans record an agreement reached between parents but they are not always legally enforceable. Then there are Court Orders, which can be made with the consent of both parents or by a Court after hearing a matter. If the parenting arrangements were determined by the Court, the legislation provides that the overarching consideration of the Court is the best interests of the child.1 Where a Court Order exists, it is probably superfluous to say that there is an expectation that the Order will be complied with. However, if there was any confusion about the matter, the legislation makes it abundantly clear.2 But regardless of how parenting arrangements have been recorded (or not recorded in some cases) they encapsulate a child’s day to day life. That being, who they live with, who they spend time with, who they communicate with and where they go to school, kindergarten or child care. The familiarity of routine and structure is all important, particularly where there is so much uncertainty around us. But, where the maintenance of structure and stability is at loggerheads with the health and safety of a child, the matter is no longer so simple. In his media release dated 26 March 2020 Chief Justice Alstergren of the Family Court of Australia and Federal Circuit Court of Australia (as they were then known) emphasised the importance of adopting a more practical and resolution focussed approach to resolving these matters. Some excerpts of his advice are set out below: • That parents and carers should act in the best interests of their children,
including ensuring their safety and wellbeing. • 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. • 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. This should be considered sensibly and reasonably. • Even when there is no agreement parents should ensure that the other parent or carer continues to have some contact with the children consistent with the parenting arrangements (i.e. videoconferencing or telephone contact). • That the purpose or the spirit of the orders is respected when altering arrangements. As we family lawyers could easily attest to, it is not always that straightforward when dealing with complex family dynamics. This is particularly the case where parents have been entrenched in long and drawn out legal battles. In a climate where parents are facing the additional mental stress of being confined to their homes, it can only exacerbate the difficulty. Therefore, it is unsurprising that at the same time, the Court has taken matters into its own hands, launching the National Covid-19 list on 26 April 2020. This Court list is dedicated to dealing exclusively with disputes which have arisen as a direct result of Covid-19 and matters allocated to this list are given priority hearing. It was reported that by the end of May 2020, over 60 judgments had been published arising from cases in which Covid-19 had
