30 September 2020

Navigating COVID-19 and your separation with particularly vulnerable children



The court has developed a separate COVID-19 List to deal with urgent matters as a result of COVID-19.
Australia Family and Matrimonial
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Implementing cohesive parenting arrangements with your former partner can be difficult in any circumstances, but the looming threat of COVID-19 makes matters that bit harder.

It is commonly known that certain members of the community will be more vulnerable and susceptible to contracting the coronavirus.

Parents in this climate have had difficulties continuing their parenting arrangements and/or complying with parenting orders, particularly in circumstances where their child is particularly vulnerable to the virus.

In a recent case decided by Chief Judge Alstergren of the Federal Circuit Court, a mother withheld her child from seeing the Father for a period of almost 3 months from March 2020 to June 2020.1 The mother claims to have done so on the basis that she and the child were self-isolating at home due to COVID-19, following the advice of their GP. The child in this case had a particular medical condition which his GP believed made him vulnerable to contracting a severe case of COVID-19, if he were exposed to the virus.

When parenting orders are contravened, the court must decide if the parent not complying with the orders had a 'reasonable excuse' to do so.

Chief Judge Alstergren held in that case that the medical advice initially received by the mother gave rise to a reasonable excuse to withhold the child. However, after an updated medical report was received that indicated the child was not at high risk during the pandemic, the mother had no reasonable excuse to contravene the orders in place after that time.

The court also ordered that the Father have some makeup time with the child as a result, which is common where a child has been withheld by one parent.

The court has developed a separate 'COVID-19 List' to deal with urgent matters as a result of COVID-19. The court has also urged parents to comply with any court orders in relation parenting arrangements wherever possible and to be reasonable.

If you have concerns in relation to your child's health or safety due to COVID-19 and believe it will impact upon your parenting arrangements with your child's other parent, we urge you to seek legal advice to ensure you are aware of your rights and the options available to you.


1 Pandell & Walburg (No.2) [2020] FCCA 1853

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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