Parenting orders after COVID-19: Will my orders remain binding?

There is currently a lot of discussion surrounding the obligations of parents and carers under existing parenting orders, in circumstances where they have been impacted by the COVID-19 pandemic. 

However, even during the existing climate, parents and carers need to be mindful of the impact any changes to their existing orders may have when the pandemic is over. 

Some of the difficulties that parents and carers are facing at the moment include situations where they are unable to comply with their existing orders for reasons such as:

• parents or carers may be in self-isolation or otherwise live with vulnerable persons, which necessarily restricts movement between households;
• changeover locations, such as schools and some contact changeover services, are closed and new changeover locations are having to be considered;
• a parent or carer may be concerned that, by complying with an order, a child may be placed at increased risk of exposure to COVID-19; or
• there may be restrictions on travel which may mean that orders are unable to be complied with. 

A range of circumstances are arising every day under existing parenting arrangements, usually in ways that are unique to each family. 

What are my obligations in the current climate and what does the Court say?

The general principles which parents and carers need to be mindful of in the current COVID-19 climate include that:

• where possible, they should comply with the terms of their existing orders; and
• they should always act in the best interests of children and ensure they remain safe. 

The Chief Justice of the Family Court of Australia has released guidance for persons affected by their existing orders in the current COVID-19 circumstances. The Chief Justice emphasises the need to act in children’s best interests and stresses that “caring for and determining the practical day-to-day best interests of a child is primarily the responsibility of parents and carers.”

The Chief Justice encourages parents and carers to document changes to orders where necessary and to seek assistance of lawyers and mediators.

If a child is unable to enjoy their time with a parent or carer as provided for under existing orders, the child should continue to communicate with that parent or carer by electronic means. 

The full statement by the Honourable Chief Justice Alstergren can be accessed here.

How will any changes to my orders be viewed after the pandemic? Will my orders remain binding?

It is important that parents and carers are mindful of the impact that any changes to or deviations from their orders may have upon their enforceability in the future, in particular, once the pandemic is over.

Generally speaking, unless there is an agreed variation to an order, the order must be complied with or, failing that, a parent or carer must be able to demonstrate that they had a reasonable excuse for contravening the order. A reasonable excuse may include, for example, a person believed on reasonable grounds that the actions were necessary to protect health or safety of a person and the period when the order was not complied with was not longer than necessary to protect the health/safety of a person. 

There will be many situations in the current COVID-19 climate where a parent or carer asserts that they have a reasonable excuse for not complying with an existing order. In these circumstances, however, the most appropriate approach is to first try to reach an agreement with the other party to the orders in relation to the necessary variation and to take steps to formally document this. Generally speaking, however, it is unlikely that COVID-19 will be, of itself, seen to be a reasonable excuse for breaching an order.

The Family Law Act 1975 (Cth) provides that final parenting orders may be varied where a parenting plan has been entered into between the parties subsequent to the orders. A parenting plan is an agreement that is:

1. in writing;
2. is or was made between the parents of a child;
3. is signed by the parents of the child; and
4. is dated.

A parenting plan can deal with any aspect of the care, welfare or development of the child.

Given that a parenting plan can vary final orders, it is necessary for parents and carers to consider whether the intention is for the variation to only apply in the short term and, if this is the case, this should be made clear in any agreement reached. There is otherwise a risk, depending upon the circumstances of each individual matter and the particular variation made, that the existing orders have unwittingly been varied by a short-term arrangement that is not intended to continue once the COVID-19 pandemic is over. 

What should I do when reaching an agreement to vary existing orders?

If an agreement to vary orders is reached, parents and carers should consider the following: 

1. document any changes, where possible, in writing which may include by way of a parenting plan; 
2. if a parenting plan is prepared, include as part of the parenting plan or agreement reached:

• a brief record of the purpose and intention of the changes, as well as identifying why the changes have been required and whether or not it is intended that the changes only relate to the period of the pandemic; 
• identify whether the orders in their entirely are being varied or, if only specific provisions are being varied, identify which ones; and
• confirm that the existing orders will resume upon conclusion of the pandemic or, alternatively, note that any changes are to continue to be revised subject to the recommendations from time to time of the Commonwealth Government and Health Department;

3. if a parent or carer is not able to comply with existing orders due to self-isolation or risk of exposure to COVID-19, seek and record medical advice to that effect to avoid any suggestion that they are not taking the opportunity to care for the children without a basis to do so;
4. where a parent or carer is having difficulties reaching an agreement in relation to necessary changes to orders, where possible, engage in alternative dispute resolution such as mediation or family dispute resolution, both of which can be conducted electronically;
5. be mindful that the Family Court of Australia and Federal Circuit Court of Australia do remain open for necessary and urgent matters. If you have existing proceedings on foot, you should refer to the Family Court of Australia website for further information depending upon the stage of your particular matter;
6. obtain legal advice early and frequently. The COVID-19 climate is constantly evolving, so it is important that you stay abreast of the latest advice; and
7. above all, act reasonably, sensibly and in the children’s best interests.

For more information or discussion, please contact our Family and Relationship Law team.