Compliance with parenting orders may become ‘very difficult, if not impossible’

By Jerome Doraisamy|26 March 2020

Source: federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/about/judges-senior-staff/judges/judges-melbourne/chief-judge

The Chief Justice of the Family Court of Australia has acknowledged the looming difficulties facing families across Australia and has outlined how courts can and will support the community.

In a statement issued on Thursday, Chief Justice Will Alstergren of the Family Court of Australia – who is also the Chief Judge of the Federal Circuit Court of Australia – recognised that parents are “naturally deeply concerned” about the safety of their children in the wake of the coronavirus pandemic, and will be even more worried about how it will impact upon a parent’s or carer’s ability to comply with parenting orders.

It may be hard to appreciate, his honour mused, what is expected by the courts in such unprecedented times.

It is imperative, Alstergren CJ proclaimed, that parents and carers act in the best interests of their children.

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“This includes ensuring their children’s safety and wellbeing. Whilst the courts make orders that are determined to be in the best interests of a child, caring for and determining the practical day-to-day best interests of a child [are] primarily the responsibility of parents and carers,” his honour said.

“Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with court orders in relation to parenting arrangements. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders.”

In the highly unusual circumstances now faced by Australian parents and carers, Alstergren CJ continued, there may be situations that arise “that make strict compliance with current 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. Or, 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 whereby 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,” his honour reflected.

As a first step – and only if it is safe to do so, his honour added – parties should communicate with each other about their ability to comply with current orders and they should attempt to find a practical solution to these difficulties.

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“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,” Alstergren CJ said.

“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. This will be particularly important if there are later family law hearings and will assist all concerned, including the court, to understand what agreement may have been reached.”

Additionally, his honour mentioned, parents and carers can also mediate their differences through lawyers.

“Electronic mediation services are available from the courts and through local bar associations and law societies during these restricted times,” Alstergren CJ suggested.

“If an agreement has been reached and consent orders have been developed to outline new or varied parenting orders, consent order applications can be filed electronically with the court. This process is quick and usually conducted without a hearing.

“If the parties are unable to agree to vary the arrangement, or if it is unsafe to do so, and one or both parents continue to have real concerns, the parties are at liberty to approach the court electronically and seek a variation of the orders.”

Where there is no agreement, his honour continued, parents should keep the children safe 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,” his honour said.

At all times, parents or carers must act reasonably, Alstergren CJ reflected.

“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)),” his honour said.

“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 [is] respected when considering altering arrangements, and that they act in the best [interests] of the children.

“In the meantime, the community should be assured that the courts will continue to perform their duties during this time of crisis. Whilst changes to the courts’ operations have been implemented in accordance with the necessary restrictions placed on our community by the Commonwealth government, the courts remain open to assist Australian families in these challenging times.”

Compliance with parenting orders may become ‘very difficult, if not impossible’
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