How is COVID-19 going to affect our parenting agreement?
Th effect of COVID-19 on families over the last two years has of course been significant, not just in terms of families not being able to see relatives, but also how parents with parenting orders or agreements have had to navigate the changing restrictions on travel and interstate border closures. Parents with orders requiring children to travel between them interstate have been given exemptions from travel restrictions to some states but not others.
Now that we are faced with a wide spread COVID-19 infection, the new issue arises on if children should spend time with parents where for example, one of the parents develops COVID, or becomes a close contact and has to isolate, or if that parent works in a high risk occupation such as health or aged care.
If the at-risk parent is taking appropriate steps to keep themselves and the child safe, and the other parent is aware of this, time should probably be able to continue. If the parents agree that the child should stop seeing that parent face-to face there is always the option to keep the child and parent in touch electronically via FaceTime or phone as much as possible. Grandparents and other relatives can also be asked to assist care for the child if a parent cannot do so, and with more parents working from home, there is always the possibility of children staying home with them if schools remain closed.
As schools and day care centres are forced to periodically close, these places may not be available for scheduled or ordered changeovers to take place. Contact Centres have also been affected at times. It will be for the parents to consider alternatives that meet their needs, including safety where they have been issues of domestic violence, or distance is a factor. Supermarkets, petrol stations and the ever popular McDonalds are viable options where there are facilities for parents and children to wait. If emotions are calm, it may be time to consider moving changeovers to the other parent’s house.
When it comes to a child being vaccinated, the parents usually will have the responsibility to make the decision to vaccinate the child jointly, unless one of them has an order from the Court giving them sole responsibility for medical decisions. A dispute of course arises where parents have differing views about vaccinations, or if one parent has been vaccinated or not. At this time, there is no direction from the Court about this particular issue, and the Court cannot compel a parent to be vaccinated.
But what if parents don’t agree about vaccinating a child? The Court has recently adjudicated on this issue in the case of Covington v Covington. The mother in this case opposed the vaccination of the child, even though there was an existing order that provided that both parents follow the advice of the child’s doctor about medical issues, and the doctor recommended that the child be vaccinated against COVID-19. The mother argued that the Court could not compel the parties to vaccinate the child as to do so would contravene a constitutional freedom of some kind from compulsory vaccination. However, the High Court found that the Family Court of Australia can make an order providing for a child to be vaccinated, and the child was placed in the fathers care for the period of the vaccinations taking place.
One thing however all parents should be aware of if they are under parenting orders, is that they may be held in contravention of a court order if they do not have a “reasonable excuse” for not providing a child for time ordered with the other parent. Section 70NAE of the Family Law Act provides that a parent must have had a “reasonable excuse” for breaching a parenting order. But what is a reasonable excuse? Usually, it would need to be shown that the failure to provide a child for contact with the other parent on medical grounds was reasonable in the particular circumstances at the time. It is not usually enough to say that the other parent might have poor hygiene, or the child might come into contact with a COVID case in their care. If the other parent has a confirmed diagnosis or is a close contact, it might be reasonable that the child not go to their house until the infectious period has passed. If you are considering not handing over a child because of the risk of infection in the other household, you will need to have evidence e.g. test results or doctors letters to support your assertion you are acting reasonably.
The Court has established a special COVID-19 list to hear disputes around these issues, and they can usually be heard reasonably quickly. If you are concerned about COVID-19 and your parenting agreement or orders, please contact us for advice as to your particular circumstances.
