Knowingly exposing children to risk of coronavirus infection reflects poorly in family law matters
Interests of children must come first
Family Court proceedings can be complex and fraught at the best of times. The emergence of the COVID-19 pandemic and the risk of coronavirus infection has added an unwelcome complicating factor to an already difficult scenario.
In all cases where children are involved, their interests must come first. This includes, obviously, doing whatever is possible to minimise their risk of coronavirus infection as a first priority, regardless of how poor the relationship between the parents may be or how poisonous the history between them.
Breakdown of communication between parents
One longstanding matter which is currently before the Family Court serves as a case in point. The relationship between the parents is extremely poor and what little communication there is takes place by email.
Both parents have remarried. Significantly for the events that unfolded, the father and his wife are both medical practitioners.
Orders previously made by the Family Court gave 5/14 nights with the children to the father.
On 18 March 2020, the mother, who is my client and who had care of the children, sent an email to the father, informing him that one of the children, an 11-year-old boy, had a chest infection. In the afternoon of 19 March 2020, the father collected the children to commence his usual time with them.
Father fails to inform mother of infection risks to children
The father did not inform the mother, however, that he had been in contact with a person with COVID-19 (coronavirus), that his wife had subsequently displayed symptoms of the virus, and that at the same time that he was attending the older child’s school and the grandparents’ house to collect the children, his wife was being tested for coronavirus.
On 20 March 2020, the father emailed the mother, informing her that his wife had tested positive for the virus and as such, the father and his household were required to self-isolate for 14 days. This meant that the children would not be returned to the mother until 3 April, rather than being returned on 24 March as per the court orders.
Father seeks orders staying mother’s time with children
Immediately after the father sent that email, the mother’s solicitor was served with an Application in a Case (used to apply for interim orders or injunctions in ongoing Family Court matters), seeking, among other things, that the children would remain with the father for the duration of the isolation period.
The father also sought orders staying the mother’s time with the children during the school holidays, Mother’s Day, the children’s birthdays and the mother’s birthday. The orders sought were opportunistic to say the least.
At no time prior to the filing and serving of this application did the father’s solicitor communicate with the mother’s solicitor regarding the application.
Effectively, as a result of the father’s manoeuvring, he would have in excess of three uninterrupted weeks with the children, as the days the children were required to be in isolation may have extended until the commencement of the school holidays. Following that period, the first week of the school holidays was to be spent with the father under the previous court orders.
Father’s affidavits show he knowingly exposed children to risk of infection
The father then filed a further affidavit in support of the application, where he made the admission that he was the one who had come in contact with the person infected with the COVID-19 virus.
What we saw was that the father, despite knowing that he had been in contact with an infected person, that the son had a chest infection and that his wife was currently being tested for coronavirus, chose to collect the children, deliberately forcing them to go into isolation with him and his wife.
Family Court clarifies position on parenting orders and COVID-19
On 26 March 2020 the Family Court issued a press release for the benefit of the general public, clarifying the court’s position on parenting plans and the impact of COVID-19. (Please see Media Release – Statement from the Hon Will Alstergren – Parenting Orders and COVID-19.)
The statement explained that children could still move between the households of their parents and carers, that parties should communicate with each other about their ability to comply with current orders and that they should attempt to find a practical solution to any difficulties.
The statement reinforced that strict compliance with self-isolation rules and social distancing had to be adhered to and the parties had to work together to devise a temporary workaround where absolute compliance with parenting orders was not possible. (For more information please see “Can I still see my kids during coronavirus?”- Your parenting plan and COVID-19.)
Registrar unimpressed with father’s failure to communicate
The matter came before the court by telephone on 27 March 2020. The Registrar was unhappy with the father’s choice of course of action, and asked why he had wasted the court’s time in bringing the application, rather than communicating with the mother’s lawyer, particularly at a time when the court was under extreme stress.
The father stated that he didn’t think the mother would agree to the isolation and sought the court’s consent to breach the orders previously made.
The court enquired as to the mother’s attitude to the isolation. The mother agreed that it was necessary and said she would have consented had she been asked.
The court invited the father to withdraw the application. The father refused.
Children returned to mother at end of isolation period
The court noted that unless the children were symptomatic, they should be returned to the mother on 3 April 2020 and listed the matter for further directions hearing on 7 April 2020 if they were not returned.
Ultimately, the children were returned to the mother on 3 April 2020 and the father’s application was withdrawn. No cost orders were made.
Father’s affidavits likely to be used as evidence against him
Although the application was withdrawn, the father filed two affidavits which demonstrate the complete disregard he has for the children’s best interests, given that he had been in direct contact with a person who was infected with coronavirus, knew his wife was symptomatic and being tested and knowingly exposed his children to a very real risk of infection.
The matter is set down for final hearing shortly and the father’s affidavits from his application are likely to be used as evidence against him.
Don’t waste the court’s time and consider your evidence carefully
While these events involve coronavirus, there are two points we can take from them which have universal application.
First, parties involved in matters before the Family Court and their lawyers are required to use common sense and communicate with one another before bringing actions and wasting the court’s time.
Secondly, although nothing might come from interim actions, the parties and their lawyers should think very carefully about the evidence they put before the court, and keep in mind how that evidence might ultimately be used.