The COVID-19 pandemic has presented numerous challenges and sparked questions for family lawyers about co-parenting arrangements and handovers during periods of restriction and lockdown.
The South Australian Government announced a 7-day lockdown period for South Australia between Tuesday, 20 July 2021 and 12.01am on Wednesday, 28 July 2021. The only 5 reasons people are allowed to leave home whilst the Level 5 Restrictions are in place are to undertake essential work, to shop for essential goods and services, for medical reasons including COVID-19 vaccination and testing, to provide care and to receive care-giving, and to exercise (with people in the same household).
Court Orders must continue to be complied with by parents. During the lockdown period in South Australia, people can leave home to comply with shared parenting arrangements, whether that be pursuant to court orders, a parenting plan or to follow usual co-parenting arrangements. The Chief Justice of the Family Court of Australia, The Honourable William Alstergren, has stated that where strict compliance with Court Orders or a parenting plan is not possible, the purpose or spirit of the Order should be respected and complied with. A parent may assist a child maintain their relationship with the other parent by facilitating time spending through technology such as telephone calls, text messages, video conferencing calls using Zoom or Microsoft Teams, or through social media. A level of compromise and flexibility will be required between parents regarding new handover times and locations due to the closure of schools and places of employment. If a parent is unable to communicate, this should be done via a third party or a lawyer. We can assist you with negotiations, if required.
South Australia is on track to ease restrictions back to Level 4 as of 12.01am on Wednesday, 28 July 2021, ending the stay-at-home requirement but imposing social distancing requirements and other high-level restrictions. It is important parents be aware that the current health crisis is not a reason to breach Court Orders. Parents should as far as is reasonably practicable comply with Court Orders if it is safe to do so, whilst following the appropriate social distancing guidelines. More than ever, parents should attempt to co-parent and keep the best interests of their children at the forefront of any decisions made.
If a parent breaches a parenting Order, the other parent may bring a Contravention Application in Court. The remedies available from the Court range from the enforcement of an Order to the punishment of a person for failure to obey an Order including by fine or imprisonment. If a court decides a person has failed to comply with an Order, it will consider whether the person had a reasonable excuse for contravening the Order. If a child’s health or safety was at risk for reasons relating to COVID-19, the Court may consider that a parent had a reasonable excuse to breach a Court Order. For example, during lockdown, or in the event self-isolation becomes necessary, handovers may not be able to occur. Some examples of reasonable excuses that may satisfy a court include that the person did not understand the obligations imposed by the Order, or the person reasonably believed that the actions constituting the contravention were necessary to protect the health and safety of a person, including the person who contravened the Order or the child, and the contravention did not last longer than was necessary to protect the health and safety of the person who contravened the Order or the child.
Families should remember that these are unprecedented times not only for the community but also for the Courts. The Family Court of Australia and the Federal Circuit Court of Australia have established a specific Court list dedicated to deal exclusively with urgent parenting-related disputes that have arisen as a consequence of the COVID-19 pandemic.
Our solicitors are currently working from home. We will be back in the office on Wednesday, 28 July 2021. Please do not hesitate to contact us if you require legal advice. We can facilitate appointments by telephone, Skype, Zoom, Microsoft Teams, or face-to-face with appropriate social distancing measures in place.