What happens if my former partner does not follow self-isolation or hygiene recommendations?

Family Law 8 May 2020

At Coulter Roache, we recognise the everyday challenges that may arise when separated parents share the care of their children.  Co-parenting relationships can be hard to navigate at the best of times and require clear communication.  In current times with the restrictions imposed as a result of COVID-19, the co-parenting relationship may be difficult.

A concern that we are hearing increasingly from our clients, is that their child’s other parent has poor hygiene practices or does not follow self-isolation requirements. So, what should you do if you’re concerned about your child’s health in the care of the other parent?

Firstly, and most importantly, you should assess the level of risk that your child is actually being exposed to, if any.  During uncertain times, parents may naturally experience increased levels of anxiety about the health and safety of their children.

If you are genuinely concerned about your child spending time with their other parent due to poor hygiene practices or a failure to follow self-isolation recommendations, you should consider the following:

  1. If it is safe to do so, have you communicated your concerns with the other parent?
  2. Have you educated your children about good hygiene practices and the importance of following self-isolation requirements?
  3. Is your child’s health and safety genuinely at risk as a result of the other parent’s behaviour?

It is important to try and make a balanced assessment about whether your child’s health is seriously being put at risk by the other parent’s behaviour.  An example may be where a child is significantly immunocompromised and is repeatedly being taken to high-traffic public places during time with their other parent.

In most cases, where one parent has a concern about a co-parent’s hygiene practices, and the child is in good health, there will not be legal grounds to prevent the child from spending time with that parent.

Why is this the case – principles of parenting laws in Australia

Our family law system in Australia places significant weight on the importance of children being able to spend time and have a meaningful relationship with each of their parents.  Parents in Australia are presumed to share parental responsibility, unless that responsibility has been allocated to one parent (or, in some cases, a separate third party).

Even in circumstances where responsibility for long term decisions such as education, health and religion has been allocated to one parent by a court, day to day decisions and parenting approaches (like hygiene practices) remain the responsibility of the parent who is caring for the child at the time.

Suspending a child’s time with the other parent – where there are court orders in place

Before making the decision to stop your child’s time with their other parent where there are court orders in place for the time to occur, you must have a reasonable excuse to do so.

A reasonable excuse for failing to comply with a parenting order exists where:

  1. The decision to not allow the time to occur was necessary to protect the health or safety of the child; and
  2. The period of the suspension of time must not be longer than is necessary to protect the physical or emotional health or the safety of the child.

There must be a serious risk or danger to the physical or emotional health or the safety of the child in order to meet the reasonable excuse test.

If you fail to make a child available to spend time with their other parent which is required to occur pursuant to a Court Order without a reasonable excuse, the other parent may make what is called a Contravention Application.

The Court has the power to impose sanctions where parenting orders have been breached intentionally or repeatedly. Sanctions can include fines, community service and, in very serious cases, imprisonment.

Suspending a child’s time with the other parent – where there are no court orders in place

If there are no parenting orders in place, and you suspend a child’s time with their other parent as a result of a disagreement about parenting styles or approaches, the child’s other parent may make an urgent application to our courts to reinstate the time.

The courts do not approve of parents who prevent a child from having a meaningful relationship with their other parent without good reason such as a serious concern that the child is at an unacceptable risk of physical or psychological harm (such as the example outlined above, of the child who is immunocompromised). In some circumstances, where court proceedings have been issued where time has been suspended, a court may make an order requiring the parent who has withheld the child without reasonable excuse to pay the costs of the other parent’s application to reinstate the child’s time with them.

Family Law advice for concerned parents

If you have concerns about your child spending time with their other parent as a result of a failure to follow hygiene and isolation directives, you should contact our family law team. Coulter Roache offer a 30 minute no cost consultation with one of our family law team to provide you with advice tailored to you and your individual circumstances. Although our lawyers are currently working remotely, we’re available to speak over the phone or on Skype. Our family law team is here to help you navigate difficult issues during these difficult and unprecedented times.

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If you require advice or further information in relation to this article, please contact our family law team.

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