The Children's Best Interests in the Midst of Covid-19

Thursday April 2, 2020

The Children's Best Interests in the Midst of Covid-19

The greatest effect of the Corona virus pandemic seems to be the outbreak of stresses stemming from major confusion and uncertainty about the near future.  So many of the impacts of the virus are beyond our control – we all have had to adapt to changes to our employment situations, security of our finances, unfamiliar social protocols, travel restrictions, and significantly, disruptions to our general routines and daily lives.

What is in the best interests of the children?

One thing the Corona virus pandemic has not changed is the best interests of the children remaining the paramount consideration when it comes to deciding what arrangements should be in place for separated families (section 60CA Family Law Act 1975).  Neither have the legislative aims in relation to determining what is in the children's best interests changed, being (in summary) to ensure that children enjoy a meaningful relationship with both parents and are protected from harm (section 60CC(2)).

While the spread of COVID-19 continues to rise, and the Federal and State governments continue to implement strict guidelines and restrictions as to how to go about our lives in the present climate, it may become impractical for children to travel between both parents' residences and/or spend time with both of their parents, if this is not consistent with ensuring the children's safety and wellbeing.

Other relevant legislative considerations to keep in mind include:

  • the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either parent, or any other child or person with whom the child/children have been living (section 60CAA(3)(d));
  • the practical difficulty and expense of a child spending time with and communicating with a parent (section 60CAA(3)(e)); and
  • any other relevant fact or circumstance (section 60CAA(3)(m)).

Practical tips to maintain the best interests of the children

Use Common Sense

Just like Prime Minister Scott Morrison has implored Australians to use common sense to prevent the spread of COVID-19 and to 'flatten the curve', parents must exercise a level of common sense and flexibility when it comes to facilitating the children's relationship with both of their parents.  It is the responsibility of parents to practically care for and determine the best interests of a child on a daily basis. 

Current Court Orders

If there are current Court Orders in place, these must be complied with (until there is a complete lockdown, and subject to any updated advice of the Federal and State Governments).   Parents should abide by Orders, as long as it is safe – and legal – to do so.  In a number of states, school holidays were commenced early – implement arrangements for the school holidays (if these are specified) from the time of school closure, to avoid any dispute or confusion.

Parents should try to reach agreement about changing the current Court Orders. Even if there are no Court Orders, parents should be flexible about the informal arrangements that have been in place between them. It is important to remember that no two family's circumstances are the same.

For example, if the time a parent spends with the children ordinarily occurs in a play centre with a supervisor present, parents might agree to change the location to an outdoor oval and to engage the same supervisor for each visit, noting that play centres and playgrounds are now closed.  This might require changes to the days and times that are otherwise scheduled in the orders, and a degree of flexibility is required for this purpose.  You must also remember the 'two-person rule', and ensure that only the parent and the supervisor are present. 

Comply with Government directions and recommendations

If you are feeling unwell and displaying symptoms of the virus, self-isolate and do not expose your children or others to the risk of contracting the virus from you.  Use thermometers and test for fevers on yourself and the children before changeover is due to occur.  Communicate medical issues as they arise with each other and follow medical advice.

If the children are required to travel long distances to see one parent for changeover, or if air-travel is the usual method of transportation, the parent might decide to instead arrange to travel by car to visit the children in a safe environment, or it may be impractical to travel at all.  While some states have closed their borders, there are exceptions to allow compliance with Family Court or Federal Circuit Court Orders.  Check with your State Government as to what travel is permitted.

If time is being spent with either parent inside or outside the home, remember the 'two person rule', and consider how this applies to you.  For example,  you should not invite others to visit (like grandparents, new spouses, aunts/uncles).  The time should only be spent with people living in each household.  The limit on gatherings of two people does not stop one parent dropping the child/children at the other persons' home or transporting the child/children  to the changeover location.

Co-operate and Communicate

Now more than ever, effective communication between parents is critical to the co-parenting relationship.  Continue attempting to reach agreement with the other parent, and engaging in responsible parental behaviours during the pandemic, remembering that parents have responsibilities, and children have rights.

Temporary alternatives to spending time with each parent

If it is that travel between residences is not in the children's best interests at this time, there are numerous alternatives to implement in order to preserve the relationship between the children and the parent whose physical contact with the children is being disrupted:

  • regular skype/facetime or telephone communication between the children and the non-contact parent, which may include multiple calls throughout each day, if practical and appropriate;
  • assisting the children to send emails to the other parent, if this is not a practice that is otherwise used for communication.

It is also important to remember that the 'lockdown' and uncertainty we are experiencing is not permanent.  While we do not know how long it will last, arrangements can be altered as time goes on, and there is always the option to provide 'make-up time' to the other parent next school holidays, or when the opportunity next arises.

What if we can't agree?

If you cannot reach agreement about changes to current arrangements, or if one parent is unilaterally enforcing measures to keep the children safe without communication or agreement with the other parent, an argument will undoubtedly follow. 

Mediation services

Mediation services should be utilised as far as possible to help parents reach agreement during this uncertain time.  These are now available online.

Obtain legal advice

If you really cannot abide by Court Orders, or otherwise come to an agreement with the other parent, obtain legal adviceThese matters may be able to be negotiated with the assistance of legal representation or advice, which can be accessed even during a full lockdown. Law firms remain in operation, and the majority of firms have the resources and facilities to work remotely.  In particular, our firm is currently fully operational, with our lawyers available to assist you and provide legal advice remotely.

The Courts remain open

Further, the Courts remain open, if the commencement or recommencement of legal proceedings is necessary. If the matter results in Court action, the Court will assess how each parent has behaved, whether it was reasonable, as well as each parents' ability to consider the best interests of the children and other members of the community.

Urgent matters, as always, will be dealt with in first priority.  If the matter is urgent, at this time you may be able to be put in touch with a Judge by electronic means – seek legal advice to assist you if this is necessary, or contact your nearest Court registry for guidance.

The Chief Justice of the Family Court of Australia (and the Chief Judge of the Federal Circuit Court of Australia), the Honourable Will Alstergren has released a media statement with more information about how the Courts can help - you can download the statement via this link

If you have any other questions or concerns about arrangements for your children, please do not hesitate to contact Petra Thomson, Principal of our family law team.