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I have recently been asked by the media to provide commentary on COVID19 and the obligations on parents during this unprecedented time which we are all experiencing. It is perplexing for parents who do not know what to do. Their questions in the media has made it clear to me that parents are really struggling with what their role is and what they should or should not be doing insofar as their children are concerned. Evidently telling separated parents to use commonsense is unhelpful as they do not know what that means in their given situation.
COVID19 does not stop you from being a parent
If there are Court Orders, the Court is expecting you to abide by them. That means as far as parenting your children is concerned, you are not at liberty to throw the rule book out and make up your own rules. The Court Orders, in this situation, is your rule book.
In a pre-total lockdown scenario, there are very few exceptions you can invoke if the other parent elects to return the matter to Court due to a breach by you of the Court Orders. You would have to state the facts which enable you to have logically applied s70NAE of the Family Law Act. You will be held to account and simply having a fear that something might happen to the children if they were to stay with the other parent. The reasonable excuse afforded someone who decides to withhold or hold over a child at the start or commencement of time with the other parent can be invoked in limited circumstances. It must only be done for so long as it:
“was necessary to protect the health or safety of a person (including [the parent who is breaching the Court Order sic] or the child)”
Post Total Lockdown
In a post total lockdown scenario, there are still opportunities for parents and children to be connected with each other and indeed physically proximate to each other. There may be exceptions for travel in the community such as attending the supermarket. Whilst waiting lines provide for strict social distancing, for example, it may be possible for one parent to see the child or children who is with the other parent. Not every adult will be able to leave young children unsupervised at home. Children will still have to go with a parent whilst that parent attends to necessary activities.
Advice should be sought about whether children can accompany you to an essential service attendance. If they can, and there is no reason for the other parent not to be there, the family could meet or indeed exchange children from one household to the other whilst at an essential service. If there are health concerns about either parent or the children or people with whom either parent is living and hence to whom the children might be exposed, agreements should be reached about how best to monitor this. Thermometer readings can be taken, and results photographed and sent to the other parent. If there is an elderly grandparent in the nonresident parent’s household – decisions need to be made about whether there is a risk to that person’s life not just the in relation to the health and well being of the children.
Curfews or restricted travel should not be flaunted and must be observed. One parent cannot encourage the other to do anything which breaches government advice and requirements.
There are opportunities for remote communication using technology such as zoom, Microsoft teams and then there is the telephone. FIFO families have long lived with how to keep the children engaged with the other parent even during the periods of their physical absence from the home.
I have urged parents not to act unilaterally, be opportunistic, or exaggerate risk simply because it does not suit them to comply with either an existing arrangement, a Parenting Plan or Court Orders previously entered into. There will eventually be a day of reckoning and you will be held to account in relation to the decisions you make during this time. You are encouraged to seek legal advice regarding what you should be aware of, what you should and should not do in any given situation.
Whilst I have said on radio and TV that if there are Court orders, these should be followed, that does not mean to say that there are certain situations when you must assess whether the orders should be strictly complied with and if in doubt – get advice regarding s70NAE.
Remember COVID19 does not stop you from being an active and caring parent no matter where you children are living. Neither of you are stopped from participating in other aspects of parenting your children together (unless you come within one of the few categories of families where one parent has no contact at all with the children).
If there are no Court Orders
First and foremost, you are parents and your children expect you to lead and make decisions for them. Even if they are teenagers, they will not appreciate the filter of information which you must apply when assessing what arrangements are most likely to further their best interests. This is not the time for democratic decision making: it calls for a parental autocracy of two and in some cases one.
Those decisions need to be in the children’s best interests. Whilst this is the wording under the Family Law Act as to the principle by which the Court abides when making decisions, it is apt for parents outside the Court system to be really mindful of this fundamental principle and parent in accordance with it. What may be considered by some to be rhetoric, must really now be embraced by all parents who are separated and must make a range of decisions which impact on their children.
These decisions should not be made by you alone but wherever possible, the other parent should be consulted, their views listened to before a final decision is made about what is in the best interests of the child or children.
Remember a time when you parented effectively
When the going gets tough and you seem to be at odds with each other, think of a time when you did something you were both really proud of as parents and thought that you would never be able to reach agreement about anything….and then you did. Think about what made that a success and also what that felt like. Go back to that and ask the curious question – when we agreed on X that seemed a lot easier than the current decision. What made that decision easy? Could we break that down to help us this time.
Park the harder issues and work on micro agreements
This is an effective tool which mediators use to demonstrate to a couple that despite all of their differences, they really can reach agreements. You start by tackling the smaller issues first and demonstrating to each other that you can indeed come up with agreeable suggestions which are truly child focused and will work well for the whole family.
By showing each other that you are capable of good decision making and can agree on some aspects of parenting, you are also changing the blueprint of your parenting journey – you are building decision making capacity into your parenting tool kit and this process can be used each time you struggle to reach agreements.
Another way to try and bridge the gap in decision making is by developing options – and this requires you both to park jumping straight to judgment or solutions. If one of you comes up with an option, both need to simply note it and not shoot it down in flames. Instead keep all options in play and use the option development process to stimulate options you may not have even thought of.
Even if you have the kids with you in a total lockdown, share information and indeed some decision making with the other parent. Obviously do not alarm them by asking their opinion about every aspect of day to day care. You are supposed to be the parent who is still responsible for the day to day care of your children so if you cannot make a decision about whether to feed your children apple or banana – all you will be doing by consulting the other parent is alarm them about your ability to parent. You are to be the parent who is in control and can manage whatever parenting challenges the lockdown presents.
Legal Advice and Mediation
Help is at hand for those who need legal advice. Do not leave asking for help until the last minute. Also do not go fishing ahead of time for the legal answer that best suits your desired outcome. For example, if you want an excuse not to hand the children over at the next changeover, do not leave it until 30 minutes before to pose the question about whether you should or should not hand the children to the other parent. Do not filter the facts to get the advice you want to be able to hide behind that advice. If you are criticized later by the Court, you cannot say but my lawyer told me to….The reality is you are the one who will be pursued for breach of Court Orders or blamed for being high handed and opportunistic if there are no orders – not your lawyer.
Mediators, like most lawyers are now working remotely. The provision of legal and mediation services is not impacted by remote work. Any downside is only in clients’ minds who think they need to be in the same room as their ex or their lawyer. Most family lawyers act for clients who reside interstate or internationally and in the pre Zoom, Skype or Microsoft Teams world, all we had was email and phone calls. I am yet to have acted for a client who felt disadvantaged by having a lawyer working remotely for them.
Mediators also can work remotely and again, many of us work with clients who live geographically so far apart that even in the pre COVID19 era, mediation has been not just feasible but successful.
Money is Tight but Advice Can Save You
We appreciate that many clients have lost their employment and are struggling financially. There is the hidden cost of worrying and making mistakes on your own. Then there are the actual costs of making poor decisions which have lasting adverse consequences on you, your family and your family law matter. By paying for timely and cost effective legal advice you can get some clarity about whether or not you are on the right path, whether you can be criticized later for your decision making or whether you can claim a defence such as that pursuant to s70NAE. Legal advice at the right time can give you peace of mind, keep you correct your course and give you sufficient insights to know how to better manage a given situation.
The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers. The contents of this blog are relevant as at 30 March 2020. We recommend you obtain specific advice relevant to you and your family’s situation.
By Caroline Counsel
Caroline Counsel is an Accredited Family Law Specialist, Nationally Accredited Mediator, a Family Dispute Resolution Practitioner and Principal Lawyer of Caroline Counsel Family Lawyers