Court Orders Coparenting and Corona
The Corona crisis has changed everything. Who could have predicted even a month ago just what kind of impact this would have on all of us? There’s so much uncertainty, and its an unsettling and insecure time. One thing is for sure though, any Court Orders and coparenting agreements you may have in place weren’t written with Corona in mind.
No one predicted the situation we now find ourselves in, and no one was imagining isolation and lockdowns when considering how parents could share the care of their children in different households.
As a result, your existing Court Orders might not be working very well at the moment. And on top of homeschooling and work from home, a new fight with your ex is another thing you don’t need.
What does that mean for your Orders? Do the same rules apply? And if your ex is frothing, what can you do to comply and calm things down when the new normal is so different? And the end looks like it’s a long way off . . .
The Family Court of Australia was quick to respond to this new uncertainty and issued a statement from Chief Justice the Hon William Alstergren last week. The Chief Justice outlined guidelines and offered some straightforward advice for parents thinking “What now?”
To keep it simple we have broken the advice into 6 easy points that will help you follow the spirit of your current Orders and avoid a breach and – as much as possible – minimise any conflict with your ex.
1: Best interests
The first principle of any parenting order is that it must operate in the best interests of your kids. The court expects you to act for the health and wellbeing of your children at all times. Alongside that you as a parent will need to determine the practical day-to-day best interests of your kids.
If you or soemone in your household thinks you may have been exposed to COVID19 this is going to restrict the safe movement of your kids between houses.
This applies to both households – if the children are with you and you are in isolation because there is a viable chance you have been exposed, or you are in isolation due to government guidelines, you need to follow those rules. Now that probably means the children should also stay in isolation for 14 days from the date of the exposure risk. If none of you show any symptoms, after 14 days you and the kids are free to move as per the regular population and current government guidelines. Equally, if your ex is in isolation the current guidelines are that they have no visitors during the period of isolation, so that’s no kids for those 14 days.
2: Abide by the spirit
In all circumstances – including the current COVID19 guidelines in relation to staying at home – the Court expects both you and your ex to abide by existing orders and to abide by the spirit of existing orders. That means if your Orders outlined a shared-care arrangement with your kids normally moving between your houses, you both need to work to continue to make that access happen. Even in these uncertain times the court expects you to work at finding a way to make existing access arrangements go ahead. While visitation is still possible the Court would expect that visitation to happen.
But the rules are changing every day and we may not be too far off what has happened in other parts of the world with more restrictive stay home policies. Currently in Australia we can leave the house for essential needs such as groceries or medical supplies. We can walk or exercise in groups of 2 – with appropriate distancing enforced. We can go to work if we have a job and it’s impossible to work from home. These are all likely to accommodate the kids going to their other parent’s house under usual care arrangements.
But around the world we have seen more extreme measures – only one family member allowed out every 72 hours, adults only allowed out with the appropriate paperwork, wristbands notifying authorities of people’s movements. Such extreme measures will obviously have an impact on Orders requiring children to move.
In that case, in order to abide by the spirit of the agreement, parents would need to do whatever they could to set up alternatives – simialr to what we are seeing in workplaces – Skype, text, email, facetime. As much as possible you should ensure your kids are in contact with the parent they aren’t physically with. And that’s not just to abide by your orders but it will help your kids feel a bit more normal. Remember their best interests are central to this. They may feel very anxious not knowing whats going on with Mum or Dad in another suburb or city but regular contact will help with that.
3: The reasonableness test
In WA the court expects you to do everything reasonably within your power to abide by existing Court Orders. This does not mean you can decide for yourself that leaving the house is too dangerous and therefore your ex now doesn’t get to see the kids. It’s reasonable to follow government advice. It’s also reasonable to take into account any existing conditions – if you child is asthmatic or has a compromised immune system for example. The reasonable test means you will do what a third party would consider reasonable in the circumstances in order for you to follow the Orders.
4: If you can, talk to each other
You might not want to talk to your ex, but if you can, you need to try. Just like our Prime Minister has told us that businesses need to talk to landlords and landlords need to talk to banks – you and your ex need to try to work it out. Try to come up with practical solutions, put yourself in your ex’s shoes – how would you feel about the arrangements you are proposing if the kids had been with him or her when this all started? Consider any options sensibly and reasonably – look for a solution, not a way out of having to comply. If you can’t talk, write an email, think about it, then reread it the next day before sending it. Try to offer up negotiable ideas rather than laying out what you plan to do. If that doesn’t work, try finding a third party you both feel comfortable with to negotiate through, or find a mediator. Many are able to do short sessions over the phone or online, on short notice.
If you have trouble communicating you can also use an App designed for coparenting. We have another article with the 6 best if you need any suggestions https://brightsidefamilylaw.com.au/wp-admin/post.php?post=2812&action=edit&wpb_vc_js_status=true.
5: Apply common sense
If you have property orders they are likely to be pretty specific – for example the house is to be listed for sale within thirty days, or auctioned in 90. Even if the current environment means you are going to sell it for less, you may both be happy to go ahead – if not, it would be reasonable to approach your ex to try to get an agreement to put it off until things get back to normal. You must however accept that your ex may not want to put it off and then the existing orders will stand. For parenting, your orders may state a specific place for a handover, a school pickup on a specific day or that children may have to attend certain activities. If the pickup place is closed, schools have gone to remote learning or the activities have been cancelled you can’t reasonably be expected to abide by that order. So find a workaround that abides by the spirit of the orders. Find a new handover spot or change school pickup to a handover.
If the kids were going into school holiday programs that are now cancelled don’t assume the other parent can have them all day. Both parents may need some hours in the day to work from home. Think creatively and try to offer compromises.
State and regional borders are now closed and with school holidays and Easter approaching there may be orders that require kids to travel. It may not be possible – or practical – to honour those orders. We’ve been told holidays that require travel are off. It’s reasonable to presume this applies to kids travelling between parents in different regional or interstate areas. Even if the kids could go to NSW, or an interstate parent could travel to Perth, isolation requirements make this impractical and travel is severely restricted. With the governemnt here now copping the bill for interstate travellers to isolate in hotels, its unrealistic to think Mum or Dad, Granny or Grandpa, can pop over to Perth see the kids.
6: Put it in writing
If you and your ex do agree to temporarily changed arrangements, follow it up with a text or email so you both have a record. This isn’t (necessarily) about trust, but just as the orders gave you something to fall back on, so to with any new arrangements. If it’s written down there is less likely to be confusion or disagreement down the track. Your Orders are formal Court documents and if you find yourself challenged down the track you want to be able to back up what’s happened. At the very least being able to show there was an agreement, will factor into a court’s decision of whether there has been a breach.
It also helps to make sure you are all agreeing to the same thing and there are no misunderstandings.
As with all Family disputes you may find yourself unable to agree or it may be unsafe to negotiate. If you feel you need outside help find a family lawyer, an FDRP mediator or you can contact the court electronically. It is unlikely you will get a face to face hearing considering the current restrictions but the court will deal with electronic applications as best they can.
If you’re in any doubt, feel free to telephone or email. Our family lawyers and mediators are happy to talk through your situation with you and give you some practical options for moving forward.
If you need more information or would like more detail about your obligations this is a link to an article written by The Chief Judge of the Federal Family Court. http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/mr260320?fbclid=IwAR0IISj5o8sf6kEaJL5U1fT7gOQ_VxTuPk9YtpHlT1PnHhbBFRAYYqHqxdc
For help with your separation or parenting issues call BrightSide
Susan Hewitt is the Principal at Bright Side Family Law, a non-litigious family law and mediation practice. Susan has worked as a lawyer and journalist for almost 30 years. She is an accredited collaborative lawyer and family-law mediator who is committed to helping families through their relationship breakdown in an honest, cooperative and respectful manner.
If you are facing a family law matter call or email Bright Side https://brightsidefamilylaw.com.au/contact-us/