This is a very real question for many parents at the moment. There is, unfortunately, no one size fits all answer. Much will depend on your individual circumstances.
Court Orders
Where there are Parenting Orders in place it is incumbent on parents to adhere to those Orders. Commonly, orders remain in place until they are altered or varied by the Court or by the parties.
If you do not make the children available in accordance with the Orders, you are in contravention of those Orders. Subject to certain necessary steps, an application for contravention can be filed by your former partner.
If the Court finds that you have unlawfully contravened an order, you can be sanctioned. Those sanctions range from having make up time ordered, to imposing a fine, right up to being jailed. It is up to you to prove to the Court that you had a “reasonable excuse” for not making the children available.
Reasonable Excuse
The question then becomes, what constitutes a “reasonable excuse”?
Whilst the current circumstances are unique, they are not the only scenario in which parents may choose not to follow Orders. In this case, with a risk of the possibility of Covid-19 infection.
As with any potential ‘risk’, the Court will want to see that you have endeavoured to ascertain the real possibility of risk. The fact that your former partner works in a hospital, should be the first, but certainly not the last consideration. It is important to reality test your concern and use common sense to determine the likelihood of an exposure to the virus.
You should raise the issue with the other parent before any steps are taken.
Raise these matters with the other parent:
- Whether or not they work in a hospital that has COVID-19 patients;
- Where in the hospital they are working – that is, is there direct exposure;
- What steps are the parent taking within the hospital to protect themsleves;
- Are they taking steps outside of the hospital to safeguard themselves;
- What can parents do together to safeguard the children – could time take place via electronic means for example?
Consideration should be given to attending mediation if the parents are not able to work through these matters. It might assist the parties to work through these issues with the assistance of a third party mediator.
Given that you are bound by Orders, unless and until they are varied by the Court (or by agreement) should obtain legal advice about whether it is necessary for Court proceedings to be commenced to have the orders varied.
Adhering to Orders
Parents should be very cautious about not adhering to Orders simply because a parent may work in front line services.
We anticipate that there will be a significant increase in applications for contravention in the coming months. In our view, the Court will want to understand what steps a party took to ascertain the level of potential risk to the child. This is to determine whether a party had a reasonable excuse in contravening the orders.
Take the same common sense approach when there are no Orders in place. Parents must bear in mind that a child has a right to a relationship with both parents, provided that they are not at placed at risk of harm.
In making an assessment as to risk, the same principles as above apply. Taking steps to cease time between a parent and a child without sufficient justification is not in the child’s best interests.
It could also be viewed adversely by the Court in the event that there are proceedings at a later stage.
In short, you should not withhold children from the other parent during this pandemic unless there is a direct correlation to risk that can not be addressed by any other means.
Contact Us
In any event, you should obtain legal advice with respect to any potential changes you intend making to current parenting arrangements.
Family lawyers often talk of their products – Orders, Financial Agreements, Child Support Agreements. We do all of those things.
Our product is really YOU – the resolution of your legal problem, enabling you to get on with ‘life’.
