Families grapple with co-parenting orders amid coronavirus crisis

Separated parents are grappling with co-parenting arrangements amid the coronavirus crisis, as infection fears and restrictions on movements raise questions about the ability of children to move safely between households.

The Family Court of Australia and the Federal Circuit Court, which both hear family law matters, have urged parents to act in the best interests of their children and respect the "spirit" of co-parenting orders where "strict compliance" is difficult or impossible due to the COVID-19 pandemic.

The Family Court and Federal Circuit Court are urging families to reach agreement on co-parenting arrangements where possible.Credit:Phil Carrick

The restrictions on movements introduced across Australia do not prevent children moving between parents' households but there are cases where existing access arrangements must be altered, such as where a contact centre facilitating access by a parent to a child has been temporarily shut.

The effective closure of some state borders has also created issues of compliance with co-parenting orders where parents live in different states.

The Family Court said courts were "working with the state and territory authorities to introduce exemptions in relation to movement" across borders, and parents may be required to show court orders to border control personnel "as evidence of essential movement". They should also carry photo identification.

Gadens partner Jodylee Bartal, an expert in family law, said crossing state borders, including between NSW and Queensland, was now "on hold". She was advising parents not to cross borders because the states and territories had not yet issued statements that this was "essential travel".

"One would expect this to be a reasonable excuse for non-compliance with parenting orders," she said.

Ms Bartal said parents should attempt to get "on the front foot" with temporary arrangements, including replacing face-to-face contact with video calls and "agreeing to make up time in the future".

Parents should also keep good records of new arrangements to help head off applications that may be made about contravention of co-parenting orders, she said.

Ms Bartal said issues were arising where a parent worked in a high-risk profession such as healthcare or policing, or where a parent lived with a person particularly vulnerable to COVID-19 infection.

For the most part, people were being "pretty sensible", she said, and the courts were "still operating, albeit by phone or videolink".

William Alstergren, Chief Justice of the Family and Federal Circuit Courts, said as a first step, and where safe to do so, parents should "attempt to find a practical solution", acting "sensibly and reasonably".

Parents can agree to necessary changes in writing and file online applications asking the courts to make "consent orders". This may be done without a hearing.

Attorney-General Christian Porter said "most separated parents agree to the arrangements for their children between themselves and … it is important that parents deal with the impacts of COVID-19 so far as they reasonably can by agreement".

"Where agreement can’t be reached, the Family Court and Federal Circuit Court continue to hear urgent matters," he said. Most hearings are conducted via telephone or video.

Courts across the world are being asked to vary parenting orders in response to the pandemic.

UK cabinet minister Michael Gove sparked panic this month after he said separated parents "should not be moving children from home to home" during the coronavirus restrictions. He later clarified this was "permissible".

In a Canadian case, a mother of a nine-year-old boy asked the Ontario Superior Court to suspend in-person access between the boy and his father after expressing concern the father would not maintain social distancing.

In comments that are not binding on Australian courts but likely to reflect their approach, Justice Alex Pazaratz urged the parents to work together in a "conciliatory and productive manner".

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