Parenting Orders and Coronavirus COVID-19

Parenting Orders and Coronavirus COVID-19

Unless you are living under a rock you will no doubt have heard about Coronavirus COVID-19 and will have been affected by it, in one way or another. One group who are feeling the effects are parents, with a number of schools and childcare centres closed, and children being forced to stay home.

As a result, a number of my clients who are separated parents are now asking me what happens to their parenting arrangements or court imposed parenting orders given the Coronavirus COVID-19 global pandemic, and the governments various directions and recommendations to stay home and stop the spread.

Coronavirus COVID-19 effects on separated parents

I suspect parenting arrangements and court imposed parenting orders may not be followed during this time for a number of reasons, such as:

  1. One parent believes the child/ren will be at risk of contracting Coronavirus COVID-19 when spending time at the other parent’s household;
  2. There is no location for a changeover, such as school is closed and no alternative location was ever envisaged, and the parents do not feel comfortable facilitating a changeover at an empty school, or their respective home;
  3. One parent fails to discuss with the other any Coronavirus COVID-19 medical treatment; or
  4. Travel may not be possible to the other parent, because it involves interstate travel that is currently banned in some states, or there are further lockdowns that prevent suburban travel.

Separated parents with parenting orders

Parenting orders are a set of finite orders made by the Family Court of Australia or the Federal Circuit Court of Australia about the parenting and care of a child or children after the separation or divorce of their parents.

Parenting orders are not ‘subjective’ and must be adhered to. They are legally enforceable court documents. As a parent, you must do everything within your power to comply with the order, and have your children do the same, to ensure all requirements are met, and you do not breach any orders.

Should a breach (known as a contravention) of a parenting order occur, such as those envisaged above, or you refuse to hand over the children because of Coronavirus COVID-19, the courts may make one of the following findings:

  • The alleged contravention was not established;
  • The contravention was established, but with reasonable excuse;
  • There was a less serious contravention, and without reasonable excuse; or
  • There was a more serious contravention, and without reasonable excuse.

Therefore, a defence to any contravention of a parenting order is whether you have a reasonable excuse for contravening the orders.

Whether contraventions due to Coronavirus COVID-19 will amount to a reasonable excuse is an unknown question and one that the courts will likely consider in due course.

In the meantime however, there should be little doubt about the seriousness of parenting orders and how important it is to follow the orders.

What are the penalties if you don’t follow a court order?

If you do not follow your court order, it will be up to the other parent to enforce any breach in court. Once the matter is heard in court, a court can impose a wide range of penalties, such as:

  1. varying the initial order;
  2. imposing make-up time;
  3. directing you to undertake some sort of parenting course;
  4. requiring you to pay a fine, bond or compensation; and
  5. even sentencing you to prison.
  6. You may also have to pay the other parent’s legal costs in having to bring your matter back to court to enforce the order.

There is a lot unknown about how the courts will deal with effects of Coronavirus COVID-19 on parenting orders. What I think the courts will be looking for are parents who are being sensible and exercising reasoned and careful judgement when making decisions about their children, and communicating with the other parent, Coronavirus COVID-19 or not.

Separated parents without parenting orders

Separated parents without parenting orders will either have some sort of formal parenting arrangement, or no formal arrangement at all. This does not mean their parenting arrangements are immune to the effects of Coronavirus COVID-19.

For those parents whose arrangements have suddenly changed, or the imposition of Coronavirus COVID19 has meant their arrangement is not or cannot now be followed for a variety of reasons, such as those outlined above, what I urge those parents to do is the same as I urge those parents who have court imposed parenting orders.

That is, when things of an unknown nature occur, try and communicate with the other parent and work matters out together, for yourselves. If you cannot, seek the urgent advice of a lawyer or a mediator such as myself, who will be able to help you reach agreement on how you as parents will manage this period in your children’s life.

It is crucial that you seek urgent legal advice and take prompt steps without delay. Situations such as are occurring now may be in place for a considerable period of time, and it is extremely important any potential contraventions are actioned competently and quickly.

The key to any parenting dispute is to get considered and detailed legal advice, as promptly as possible, to reduce the further breakdown in any parenting relationship, and before any potential breach takes place, in order that you can ensure your rights, obligations and responsibilities are met and the best outcome is achieved in yours, and more particularly, your children’s favour.

If you think you fall into a category as above, or you do not know whether an Order is being contravened with a reasonable excuse, or you need some help with your family law parenting arrangements, please call myself, Shane McClure lawyer and mediator, on (03) 8692 7244 in order for prompt legal advice.

When all of this is said and done, at the end of the day what will matter is how we treated each other and what we taught our children about how to manage during difficult times.