Importance of medical evidence if parent seeks to withhold children during COVID - electronic communication between children and parent ordered due to COVID-19 risk to the children

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By Sally Baker, Special Counsel and Rebecca Brun, Lawyer

A recent case before the Family Court provides insight into how the Court will approach matters where time between the children and parent have ceased because the children were self-isolating based on medical evidence that was adduced to the Court. The father in this case argued that the mother had unilaterally ceased the children’s time with the father and applied for face-to-face contact be re-instated between the children and the father, as well as an amendment to changeovers.[1]

The parties’ have three children aged 17, 13 and 10 years old. Orders were made in January 2019 whereby the children were to spend time with the father on three Saturdays out of four at a contact centre. The mother did not present the children for changeover on 21 March 2020 and the mother did not respond to the Centre’s subsequent requests for a case review.

Upon the Independent Children’s Lawyer (“ICL) writing to the mother recommending that the contact between the children and the father be re-instated, the mother informed the ICL that her and the children were in isolation, with supporting medical evidence. The medical evidence was dated 26 March 2020 and provided that one of the children had a urinary tract infection. The ICL responded that given it was now May 2020, with national guidelines on staying home relaxed, that there is a way to enable contact between the children and the father whilst keeping the children safe.

On the morning of the hearing before Justice Rees on 21 May 2020, the mother emailed to the Court a letter and annexures, seeking the father’s application be indefinitely adjourned. Despite the mother not appearing via Microsoft Teams for the hearing, Justice Rees proceeded with the matter on the basis that the mothers’ letter and annexures formed part of her evidence.

One of the annexures in the mother’s email included a letter from the children’s general practitioner dated 19 May 2020, stating that all three children from the beginning of 2020, had been unwell with recurrent viral illnesses and were as a result at risk of being susceptible to other viral illnesses with potential for more severe illness from these viruses should they be exposed.[2] The letter recommended the children “continue to self-isolate while we continue to see ongoing cases of COVID-19” and that they should “limit contact to members of their household only or for medical treatment or emergencies”.[3]

The Court found it appropriate that the father have contact with the children via Zoom on a weekly basis, stating that “whilst the father’s anxiety to resume face to face contact with the children is entire understandable and appropriate, it is also appropriate that the advice of the children’s medical practitioner be considered and, in the present circumstances, the children’s physical health must take precedence over the benefit of their spending time with their father”.

The Court listed the matter for a further listing in June 2020 to reassess the arrangements.

[1] Collingwood & Collingwood [2020] FamCA 390.

[2] Ibid [24].

[3] Ibid.

For further information, please do not hesitate to contact us.

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