There are lots of thoughts and opinions, lots of information (and not all of it from Australia) so we want to remind you that the Family Courts of Australia manage the law relating to post separation parenting where parents are unable to make decisions about children themselves.
The Family Court of Australia has made an Information for Parents – questions and answers page to help.
We are living through very unusual times.
There may be situations that arise that make strict compliance with court orders very difficult, if not, impossible.
This may be caused, for instance, where:
- orders stipulate that contact with a parent occurs at a designated contact centre, which may not currently be operating.
- the “pick up” arrangements of a child may nominate a particular school, and that school is now closed.
- Many state borders are also closed.
- In addition, there may be genuine safety issues that have arisen where one parent, or someone in close contact with that parent, has been exposed to COVID-19, and this may restrict the safe movement of a child from one house to another.
What to do
If talking directly is difficult a mediator may be able to help. Contact us for a short discussion with a mediator to talk about your situation.
The guidance from the court is
1. Communicate and reach an agreement if possible
If it is safe for you to do so the first step should be to communicate with each about your ability to comply with the current orders or parenting agreement. You should attempt to find a practical solution to these difficulties. These should be considered sensibly and reasonably. Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent when attempting to reach new or revised arrangements.
This includes understanding that family members are important to children and the risk of infection to vulnerable members of the child’s family and household should also be considered.
If an agreement can be reached about new parenting arrangements, even if they are to be adjusted for a short period of time, this agreement should ideally be in writing, even if by way of email, text message or WhatsApp between each other.
2. Get help to reach an agreement
If you feel that you need help to reach an agreement mediation is available by video meeting or phone. You can contact one of the Family Dispute Resolution Practitioners on our panel if you are finding it hard to access government funded services. FDR Practitioners Panel
As the restrictions related to COVID-19 are temporary you may find that a Parenting Plan is all you need to modify your previous orders although that depends a bit on how your orders are structured.
3. Apply to the Court
If you are unable to agree to vary the arrangement, or if mediation is not safe and one or both parents continue to have real concerns you may need to approach the Court electronically and seek a variation of the orders.
Procedural information about how to do this is available by contacting the Court using live chat or calling 1300 352 000.
In most cases a parenting agreement or parenting plan is all you need.
If you have reached an agreement that you both find acceptable a Parenting Plan is best.
A parenting plan just means an agreement about children that is written, signed and dated by both parents or legally responsible care givers.
Every family’s circumstances are different and this is only to be used as general information. The Courts expect that parents and carers will act in the best interests of their children which includes ensuring their children’s safety and wellbeing and complying with Court orders in relation to parenting arrangements. In the highly unusual circumstances now faced by Australian parents and carers, there may be situations that arise that make strict compliance with court orders very difficult.
It is imperative that, even if the orders cannot be strictly adhered to and are varied by the parties, the parties ensure that the purpose or spirit of the orders are respected when considering altering arrangements, and that they act in the best interest of the children.
At all times, parents or carers must act reasonably. To act reasonably, or to have a reasonable excuse for not complying with Court orders, is a matter that is considered by the Court (pursuant to s70NAE of the Family Law Act 1975 (Cth)).
The Courts are prioritising urgent matters and those that concern the safety of children. Court hearings and events are currently being done by telephone or video-conferencing. For more details see the Notice to the Profession – COVID-19 Measures and listing arrangements.
For more information on this issue, please refer to Media Release – Statement from the Hon Will Alstergren – Parenting Orders and COVID-19
Some Australian States and Territories are applying border restrictions in response to the Government’s protocols for non-essential travel. For many of you it is unclear how the border restrictions may affect your court orders. The Courts are working with the State and Territory authorities to introduce exemptions in relation to movement, which will enable you to adhere to court orders and cross borders where it is safe to do so.
When crossing any State or Territory border you may be required to provide the appropriate court order as evidence of such essential movement to border control personnel. Please ensure you also carry current photo identification.
Ideally you should hold a hard copy of the appropriate court order. Alternatively, if you are already in transit and as a large majority of you are already ‘registered users’ of the Family Court and Federal Circuit Court portal you can access a copy of your Court Order via the following link www.comcourts.gov.au.
For more information see How do I access orders.
The Courts appreciate that mediation and coming to an agreement by mutual consent may take time or that you may not be able to reach an agreement, particularly if one party has concern for their physical safety.
Where there is no agreement, parents should continue to ensure the safety of their children until the dispute can be resolved.
Also during this period of dispute, parents should ensure that each parent or carer continues to have some contact with the children consistent with the parenting arrangements such as by videoconferencing, social media, or if that is not possible, by telephone.
If you already have court orders or have family law proceedings, and you are unable to agree to vary shared parenting arrangements, or if it is unsafe to do so, and one or both parents continue to have real concerns, you can approach the Court electronically and seek a variation of the orders. You can find information on how to do this in the How do I apply for parenting orders page under the heading Applying to change an existing parenting order
Are courts still open?
The courts are still open with modifications to comply with government directives regarding social distancing. More Information.
It is a lie if you are being told the courts are closed and that the police are going to enforce the wishes of another parent. More information about FDR Mediation.
If there is a court order or parenting plan that one or both parents think is not appropriate you should attempt to mediate to reach an agreement. If agreement can’t be reached you may need to go to court if you believe that it is in your child’s best interest to resolve the issue.
The Family Relationships Advice Line provides information, advice and telephone based services to assist parents. You can contact them on 1800 050 321 or visit their website https://www.familyrelationships.gov.au/talk-someone/advice-line
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