Parenting during a pandemic Obligations to create stable environments for children

VIRGINIA BUI, SENIOR ASSOCIATE, JACQUI ION LAWYERS

As 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 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

been a relevant consideration. An example of a typical scenario which may end up in this list is where one parent may bring an application after an agreement has been reached to suspend parenting orders or a Parenting Plan due to restrictions but has failed to resume compliance with those arrangements following the easing of Covid-19 related restrictions.

Whether or not we are in the midst of a pandemic, the overarching consideration for the Court when determining a parenting dispute is set out in section 60B of the Family Law Act 1975 (Cth). Section 60B provides that the objectives of the provisions relating to the making of parenting orders are to ensure that children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests.

Some examples of some recent decisions follows: • The Court made the decision that the risk of travelling interstate to spend time with a parent was too great and found that it was in the best interests of the children to maintain a meaningful relationship with the other parent by way of electronic communication (Banham & Banham [2020] FCCA 1201).

It is well settled in case law that a meaningful relationship is a qualitative concept and is not simply measured by the amount of time a child is spending with a parent.3 • In the decision of Mafton & Salmet (No.2) [2020] FCCA 903 the Court confirmed that the existence of restrictions was not carte blanche authority to ignore parenting orders. It would need to turn on the facts of each individual case. • In the decision of Makinen & Taube [2021] FCCA 18 the Court made

Orders for the father to have sole parental responsibility in relation to vaccinations. In reaching its decision, the Court was mindful of the risk to the children contracting Covid-19 if they were not vaccinated. • In the recent decision of Denham &

Newsham [2021] FamCAFC 141 the Full

Court set aside a decision permitting a child to relocate to Belgium. The original decision was reached before the pandemic reached its peak in Australia.

When the father appealed the decision, he sought to adduce further evidence about the practical difficulties of spending time with the child as a result of the border restrictions and quarantine requirements. The father was ultimately successful in his appeal and the matter was remitted for rehearing. • It would now seem that we will soon be bidding farewell to the pandemic (or the optimist in me hopes), but during the thick of it, it is in the children’s best interests for matters to be brought to a conclusion.

In the decision of Cotadini & Georgiou [2020] FamCA 807, Justice Berman made final orders which were conditional and subject to compliance with Covid-19 travel restrictions.

Section 70NAE of the Family Law Act 1975 (Cth) provides that a person has a reasonable excuse for contravening an order if there were reasonable grounds that the contravention was necessary to protect the health or safety of a child. While it is doubtful that the possibility of a global pandemic was ever contemplated when the legislation was being drafted, it would fairly obvious that taking steps to protect a child from the risks of contracting Covid-19 would be an obvious exception.

Returning home, South Australia was plunged into lockdown on 18 November 2020 with the harshest lockdown measures that the State had seen up until that point in time. For most of us, visiting the supermarket was the only reason which permitted us to leave our homes. But what about for the purposes of compliance with an Order of the Court?

Naturally, it called into question whether parents were allowed to leave home for the purposes of facilitating handover.

At 12.01 am on 19 November 2020 it was confirmed by the South Australian Police that parents and children would be permitted to leave their homes for the purposes of complying with care arrangements, whether they were Court ordered or otherwise (Parenting Plans or to follow usual arrangements). Travel to effect handover was deemed to be essential travel. On the flipside, it would seem that common sense would prevail when children were in quarantine or awaiting the Covid-19 test results and those types of reasons would constitute a reasonable excuse.

Ultimately, where the world has been turned on its head, parents and lawyers together have an obligation to assure the children of this world that their world remains as stable as it can be. B

Endnotes 1 Family Law Act 1975 (Cth) s 60CA. 2 Family Law Act 1975 (Cth), s 65DA, 65M, 65N & 65NA. 3 Mazorski v Albright [2007[ FamCA 520