if you and your ex don't agree, what are your rights?

Separated parents are facing a range of new challenges in the wake of COVID-19. To contain the spread, the government has directed people to stay at home except when carrying out essential activities. But children of separated families will still need to move between households.

When this happens, one parent may have concerns about the safety of children attending school or childcare while in their ex’s care, or whether their former partner will adequately supervise their children’s online schooling.

Parents may also worry their ex may not be following the current guidelines on social distancing or lives with an essential service worker who may be more likely to transmit the virus to the children.

So what can parents do to cope?

Your legal rights

By law, after separation both parents have what is termed “parental responsibility”. This means, unless the court orders otherwise, they are required to consult each other about major long-term decisions such as education and medical treatment.

But each parent can make day-to-day decisions when children are in their care such as what children will eat and what activities they will do each day.

If parents have family court orders or parenting plans that stipulate the time children spend with both parents, they should follow their terms unless they both agree on other arrangements.

If one parent doesn’t feel comfortable with children attending an education provider while spending time with their former partner, they should discuss their concerns with their ex and try to reach an agreement. There may be a range of options depending on whether there are alternate care providers and how geographically close parents live to each other.

Read more: Schools are open during the coronavirus outbreak but should I voluntarily keep my kids home anyway, if I can? We asked 5 experts

Parents may consider adjusting their portions of time or the particular days or weeks on which children spend time with each of them.

Another scenario that has come up in practice is conflict arising between separated parents where one is not following the social distancing guidelines. Children are returning from visits and revealing they have spent time socialising – such as at playgrounds and barbecues.

In this instance the concerned parent should raise their concerns with their ex and see if they can agree on a set of guidelines that take into account government directives.

But what if we don’t agree?

The law states parents must act in the best interests of their children. Where parents cannot agree on what these are, the court has a list of best interests factors that must be considered. These include the benefit of children having a meaningful relationship with both their parents balanced against protection from harm.

The Chief Justice of the Family Court and Federal Circuit Court of Australia has made it clear if parents cannot reach agreement on new arrangements they should generally follow their court orders unless their children’s safety is compromised.

If a parent is seeking to deviate from family court orders due to health concerns the Chief Justice has said such requests:

[…] should be considered sensibly and reasonably. Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent when attempting to reach new or revised arrangements. This includes understanding that family members are important to children and the risk of infection to vulnerable members of the child’s family and household should also be considered.

The federal government has said children can still attend school and childcare if needed, such as when they are children of essential workers. So within the law, one parent can continue to send children to school or childcare.

If a parent decides to withhold time from their ex because they deem them to be breaching the social-isolation requirements, a court would need to decide if the parent had a “reasonable excuse” for failing to follow court orders.

If a child has pre-existing health issues that make them susceptible to the serious consequences of COVID-19, which can result in respiratory complications for instance, the concerned parent could provide medical evidence to support their actions.

What if I can’t follow the court order?

The current situation may mean some parents can’t follow some aspects of their court orders, such as where changeover is usually at a school or another contact centre which has closed. Parents should come to an agreement on an alternative changeover location or supervision arrangement.

Some parents have arrangements that require them to cross state borders. Queensland, Tasmania, South Australia, Western Australia and the Northern Territory have border restrictions in place that mean, unless you are granted an exemption, you will need to self-isolate for 14 days after crossing the border.

Read more: To fix the family law system, we need to ask parents what really works

In some states, such as Queensland, you can apply for an exemption if you have a family court order or compassionate grounds. In other states, such as in South Australia Tasmania Western Australia and the Northern Territory, there is no explicit exemption for family court orders but there is one for “compassionate grounds”.

The term “compassionate grounds” has not been defined, so check with your local police to see if it includes family court orders and parenting plans.

Everyone is anxious

As the virus continues to spread, we can anticipate disputes where one parent becomes worried their ex has been exposed or come into close contact with someone who has been exposed to COVID-19. If this has occurred, health guidelines direct the exposed person self-isolate for 14 days which would require a temporary suspension of physical time with their children unless they have also come into contact and need to self-isolate.

If after testing the parent has a confirmed case, self-isolation is mandatory. If parents can’t reach agreement, again if the case went to court, the court would consider whether there was a “reasonable excuse” to depart from the court order.

Evidence of the exposure would establish the parent who chose not to follow the order had genuine health concerns.

If one parent is experiencing symptoms and is waiting for test results it would be prudent for children not come into contact with them until the result is received. If a parent clearly has COVID-19 symptoms but is not eligible for a test it would be in the children’s best interests for the parent to self-isolate from them until their symptoms have resolved.

Read more: 8 tips on what to tell your kids about coronavirus

Where parents have agreed on new arrangements, they should record these in writing. This will ensure they both understand what changes have been made and have a clear record of the arrangements.

Parents should remember this is stressful for everyone and many children will be feeling anxious. If parents can agree on consistent rules between households and keep conflict to a minimum, it would help their children feel as secure as possible when moving between households.

If parents need help with their discussions they can access mediation services at family relationship centres or consult private mediators. They can also seek legal advice from lawyers.