Family & Relationship Law 28 May 2021

What to do in this snap lockdown: complying with parenting orders and protection from family violence

At Coulter Legal, we recognise the everyday challenges that may arise when separated parents share the care of their children.  Co-parenting  can be hard to navigate at the best of times and require clear communication.  The restrictions imposed by the Victorian State Government on 27 May 2021, enforcing the 7 day lock-down, as a result of COVID-19, will cause disruption to parenting arrangements and court orders.  We know this from our experience with the lockdowns that occurred in 2020.

There is yet to be any guidance released by the Victorian Government as to whether compliance with parenting orders will constitute a ‘reasonable excuse’ for the purposes of the Government’s current directions.  Based on past experience, actions taken by a parent to comply with a court order or parenting arrangement constituted a ‘reasonable excuse’ or exception to the Government directive.

So what happens to the current parenting arrangement: Suspending a child’s time with the other parent – where there are court orders in place

A parent may not comply with a court order if they have a ‘reasonable excuse’ not to do so.  Accordingly, before making the decision to stop your child’s time with their other parent where there are court orders in place for the time to occur, you must have a reasonable excuse to do so.

A reasonable excuse for failing to comply with a parenting order exists where:

  1. The decision to not allow the time to occur was necessary to protect the health or safety of the child; and
  2. The period of the suspension of time must not be longer than is necessary to protect the physical or emotional health or the safety of the child.

In Kardos & Harmon [2020] FamCA 328, His Honour DCJ McClelland provided guidance in relation to compliance with orders during the first COVID-19 lockdown, stating that “Despite the existence of the COVID-19 pandemic, it is important that all reasonable efforts are made for children to spend time with both parents consistent with taking a responsible approach in respect to mitigating against risks associated with the presence of the COVID-19 virus in the community and, specifically, the child coming into close contact with a carrier of the virus.”

There must be a serious risk or danger to the physical or emotional health or the safety of the child in order to meet the reasonable excuse test.

If you fail to make a child available to spend time with their other parent which is required to occur pursuant to a Court Order without a reasonable excuse, the other parent may make what is called a “Contravention Application” against you.

The Court then has the power to impose sanctions where parenting orders have been breached intentionally or repeatedly. Sanctions can include fines, community service and, in very serious cases, imprisonment.

Suspending a child’s time with the other parent – where there are no court orders in place

If there are no parenting orders in place, and you suspend a child’s time with their other parent as a result of a disagreement about the lockdown, parenting styles or approaches, the child’s other parent may make an urgent application to our courts to reinstate the time.

The courts do not approve of parents who prevent a child from having a meaningful relationship with their other parent without good reason, such as a serious concern that the child is at an unacceptable risk of physical or psychological harm (such as the example outlined above, of the child who is immunocompromised). In some circumstances, where court proceedings have been issued where time has been suspended, a court may make an order requiring the parent who has withheld the child without reasonable excuse to pay the costs of the other parent’s application to reinstate the child’s time with them.

Family Violence and urgent interventions

It was also widely reported that victims of family violence found it extremely difficult to report instances of domestic violence in circumstances where the victims were restricted in their movement and ability to report abuse during the lockdowns.  There are many risks that contribute to an increase in family violence during the pandemic not including the chance of contracting the virus, such as the rise in unemployment and financial stressors and an increase in alcohol and drug consumption.

Coulter Legal works closely with organisations who provide expert assistance in navigating situations of family violence.  Coulter Legal, along with their partners, can assist clients to obtain risk assessments, security assessments, alternative accommodation, and make applications for urgent Intervention Orders to help victims of family violence to feel safe and protected.

Family & Relationship Law advice for concerned parents

If you have concerns about your child spending time with their other parent during the lockdown, or as a result of family violence, or a failure to follow hygiene and isolation directives, contact us for a 30 minute no cost consultation with one of our lawyers to provide you with advice tailored to you and your individual circumstances.  Our lawyers continue to work remotely and are available for telephone and Skype/ Zoom appointments.  Our Family & Relationship Law team is here to help you navigate difficult issues during these difficult and unprecedented times.

Bonnie Phillips.
Bonnie Phillips Principal Lawyer Head of Family & Relationship Law View profile
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