COVID19 and Post Separation Shared Care

May 4, 2023

The Corona Virus and Post Separation Shared Care

In January 2020, COVID-19 started infecting Australians and tourists visiting Australia.  The virus has been the cause of many deaths in Australia, so the Australian Government has adopted some reasonably drastic measures in an attempt to save lives and limit its transmission around the country.

This virus has the potential to impact on all separated parents who have an arrangement (via Court Order, or otherwise), whereby they share care of the children of that relationship.  The question we are regularly asked is, “Is it safe to continue shared care?”.

The most important principle is that parents, always, should act in the best interests of their children. If virus transmission risk exists, children’s well-being prevails; they should stay home rather than spending time with other parent. If a real and present danger does not exist, then the children should spend time with the other biological parents as agreed between the parents, or ordered by the Court.

An example of a “real and present” danger is, you have recently returned from overseas travel, been in contact with someone who has recently returned from overseas travel, are unwell, or recently been in contact with someone who is unwell.  If that is the case, then safety is paramount and your post separation shared care arrangement should be suspended, until you have been tested for COVID-19 and cleared.

Traveling between parents’ houses to facilitate a transition of the children is unrestricted and not prohibited by law. Transporting the children to the other parent’s residence is within legal bounds. In the event that a contact centre, where changeovers typically occur, is currently unavailable, it is anticipated that you will establish a rational and practical alternative arrangement for the transition.

If you are subject of a Court Order, then you should make every reasonable effort to comply with the Order. If you contravene a Court Order, you should have a very good explanation for doing so. In the absence of a Court Order, maintain pre-virus shared child care arrangements if both parties agree.

Temporary adjustments to arrangements or court Orders due to the virus should be documented in writing to prevent confusion. These written changes could serve as evidence in court. It is also important that any such changes do not offend the “spirit” of the previous arrangements, for example, if the previous arrangements were “week about”, it would be difficult to justify a change such as 10 days with one parent and 4 days with the other.

If you cannot resolve a dispute that has arisen because of the virus, then you should seek legal representation. Our family law team will be able to provide you assistance in such cases.

The guidelines about self-isolation and effective medical treatment, are ever changing and this article is not intended to provide anyone who reads it with medical advice, but it will provide separated parents with guidance regarding the legal position on shared care parenting arrangements, as it relates to COVID-19. If you would like to know the most recent Government medical recommendations you should access www.health.gov.au, or see a Doctor.

Nick Harrison

Nick Harrison

Founder & Solicitor

Nick is passionate about family law, domestic violence, and wills and estates, Nick has been practising as a Solicitor of the Supreme Court of Queensland and the High Court of Australia since 2012.  He provides practical legal advice to his clients, using his unique blend of impeccable legal skills and real-life experience as a police officer, husband and father.

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