Withholding Children During COVID-19

We have been receiving numerous enquiries from parents who are worried and confused about their parenting arrangements due to the COVID-19 pandemic.

The team at Resolve Conflict are available to discuss your family law matters with you and provide online family law advice to assist you during this difficult time. We are also conducting our Family Dispute Resolution Service (FDRS) online, to enable parents to negotiate practical alternative arrangements to their parenting plans and manage any complications that have been caused by COVID-19.

The Family Court and the Federal Circuit Court of Australia have made it clear that it is not acceptable to use the COVID-19 health crisis as a means to obtain advantage in Family Law proceedings. Orders must be complied with and the ordinary laws around enforcement of Orders will apply.

It is therefore important to remember that parenting Orders are binding and you must continue to obey them unless you have a “reasonable excuse” not to do so.

What is a reasonable excuse?

Absent of any safety issues, children should be moving between houses in accordance with parenting Orders.

If your child is sick, the most important thing to do first is speak to your doctor. If your child is well enough to travel, then they are well enough to spend time with the other parent and should continue to do so.

If your child is not well enough to travel, common sense should prevail. Parents should try to negotiate an arrangement for the care of their sick child, ensuring that the wellbeing and safety of the child is their paramount consideration.

If your child cannot spend physical time with the other parent or other family members, it is important to allow the child to communicate via telephone, or video conferencing such as Skype, Zoom or FaceTime.

If you believe that your child is being withheld without a reasonable excuse, please do not hesitate to contact one of our lawyers.

What to do if a parent withholds a child?

Now more than ever, children need the routine and stability which comes from maintaining their relationships with their parents and family.

If a parent withholds a child in the absence of safety issues or without reasonable excuse, an urgent application can be made to the Court to resume the parenting arrangements. In some cases, a Recovery Order may be sought and further down the track, a contravention application may be appropriate.

The Courts have informed us that although it may be impossible to strictly adhere to Court Orders due to the current environment, it is important to ensure that the ‘purpose’ and ‘spirit’ of the Orders are followed.

It is important for parents to remember that their conduct during the COVID-19 crisis will speak to the attitude that they have towards their parental responsibilities and their willingness to facilitate a relationship with the other parent.

What if I don’t have Court Orders?

Some parents do not have legally binding parenting arrangements in place. In this situation, it is again important for parents to communicate, where safe to do so, and negotiate practical solutions to the parenting arrangements that are already on foot.

If parents cannot come to an agreement, unless an exception applies, it will be necessary to attempt family dispute resolution (FDRS) before making an application to the Court. An accredited FDR practitioner at Resolve Conflict is able to assist both parties to isolate the issues in the dispute and develop and consider options to resolve those issues.

Should an agreement not be reached, or should FDRS not be required or not be appropriate, a parent may wish to make an application to the Court to seek that time with the child be reinstated.

The behaviour of parents in these circumstances will be considered by the Court, so it is imperative that parents act reasonably and in the best interests of their children.

If you would like more information, online family law advice or assistance with online mediation, please do not hesitate to contact us today.

Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email [email protected]

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