21 Sep COVID-19 & separated families
Is it reasonable to withhold my child?
COVID-19 has caused Australia, and much of the world, to be placed in a holding pattern. While everyone is trying to cope with the uncertainty of the pandemic, for some, there is an added concern. This worry is the health and safety of their children as they stay with or travel to the other parent.
Recently, many parents have asked the question, “Can I withhold my children during COVID-19?” The short answer is no. The Family Court has made it very clear that the COVID-19 restrictions should have no impact on parents complying with their parenting orders. Parents should be ensuring they are continuing to encourage the relationship their children have with both parents. However, the Court has also said that parents must comply with Orders, provided it is safe for the children to do so.
The difficult question for most is, when is it safe to do so and do I have a reasonable excuse not to hand over my children if I don’t consider it safe?
In the recent case of Pandell & Walburg (No 2), the Court considered the reasonable grounds from which a parent could contravene the existing Orders and withhold their child. His Honour, Judge Alstergren, heard conflicting evidence that a four (4) year old boy was at a greater risk of suffering an adverse reaction to a possible COVID-19 infection.
The Mother had produced a medical certificate from a general practitioner which advised that the child “was at risk of severe disease if he contracts COVID-19”. The doctor recommended that the child socially distance, which included staying at home with his primary carer (the Mother). The Court found that at this time, the Mother had a reasonable excuse to withhold the child.
However, an updated medical report (produced on 5 June 2020), indicated that the child was “not currently considered “high risk”….[and]… that attending school is safe and that family members and contacts should comply with government implemented social distancing recommendations”.
Judge Alstergren found that the Mother had reasonable grounds, initially, to withhold her child from visitation with the Father. However, once the updated medical report was issued, she no longer had a reasonable excuse to do so. Any suspension of the previously agreed visitation schedule after the date of that report was in contravention of the Orders.
We understand that the Family Law journey can be confusing and stressful at the best of times. With the added uncertainty of COVID-19, we recognise that your usual choices may be harder than ever to make. If you are unsure about your rights, responsibilities and how best to comply with your parenting orders, contact the team at Toomey Family Law. We have the most up-to-date information and professional advice about how to comply in these unprecedented times.
The Honourable William Alstergren, Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia, has provided general guidance to parents and carers during the pandemic in this media release dated 26 March 2020.
COVID-19 Information for parents – these questions and answers have been provided by the Family Court of Australia.