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COVID-19 – “Mother’s nutty order”

22 June 2020

During COVID isolation the mother of a 17-year old child with high autism needs suspended all contact with the father and placed a notice on her front door saying the child was vulnerable and would not be leaving the house. The father defaced the notice and sought a court order to stop the mother. What did the court do?

The Family Court decision of Xiu & Hodges[1] is a decision of Justice Bennett regarding a high needs autistic 17 year old child who had global developmental delay, motor dyspraxia and an intellectual disability.

The parents in this case already had an existing court order but the matter was recently exacerbated when the mother stopped the father from spending time with the child due to COVID-19 and put a sign on her front door which read:

___

“COVID-19 Health and Safety

Government Order: Stay at Home

The child of this house is very vulnerable and very prone to virus and infections. In this coronavirus pandemic crisis, this child must stay at home and is not allowed to go out of this house. It’s for families, community and country’s safety.

Thank you for your understanding & cooperation“.

____

The father wrote over this sign by changing the words “Government Order” to “Mother’s Nutty Order”. He also added the word “not” before the word “very” where it appeared so that this sentence read “the child of this house is not very vulnerable and not very prone…“.

The parties were both self-represented in this matter but there was an Independent Children’s Lawyer (ICL) who had requested that the matter be listed before the Judge initially in relation to other concerns and later because the mother was withholding the child from the father due to “Coronavirus concerns”.

The mother sought orders that all previous orders be discharged and that the child live with her full time during the current COVID-19 pandemic and that she have sole parental responsibility for all decisions relating to the child’s health, education, National Disability Insurance Scheme (NDIS) and day-to-day care. She proposed that the father only communicate with the child by way of Zoom App and telephone and that the child only engage in therapy sessions via Zoom.

The mother’s issue with the father spending time with the child was that he exposed the child to high risk by taking the child to his girlfriend’s home frequently, taking the child to the local Coles supermarket and not observing social distancing and not making the child wear the face masks and gloves which the mother had provided for the child.

The father admitted during the hearing of the matter that the child did not wear the masks and gloves when they were at the supermarket.  The Judge accepted the father’s submission that it was not a recommendation of the Government that gloves and masks be worn. The Judge also accepted that the father was truthful when he said that he would follow the COVID-19 directions. The Judge did find that the father was disrespectful to the mother when he defaced the Notice by the mother that she had put on her door, but did find that it was an example of the “domineering attitude” of the mother and her propensity to “ride roughshod” over the father when she had an opportunity to do so.

The Judge found that the mother was bona fide and genuine in her concerns with respect to the child’s health and COVID-19 risks, but found that the mother had habitually sought to marginalise the father so that she could dominate the child’s care and was relying on her opportunistic and inaccurate understanding of the Government directions about COVID-19 as an excuse not to allow the father to spend time with the child.

The Judge was satisfied that it would be contrary to the child’s best interests for the mother’s concerns about the father’s standard of care during COVID-19 to outweigh the benefit of the child spending time with his father for significant periods in a shared care arrangement.

The Judge made orders for the father to spend time with the child and for the mother to make the child available for collection by the father. The Judge warned the mother that if she did not facilitate the father spending time with the child the court would make a Recovery Order for the Police to collect the child and deliver him to the father should that be necessary.

At Michael Lynch Family Lawyers we appreciate that COVID-19 is impacting upon many families and may exacerbate existing disputes between parties. Before the disputes escalate, we would recommend that you obtain legal advice by contacting us on (07) 3221 4300 or by filling out the online form. At Michael Lynch Family Lawyers we are able to provide you with advice in a safe environment either through video conferencing platforms Zoom or Skype as well as face-to-face conference adhering to the social distancing rules.

[1] [2020] FamCA 225 (9 April 2020).

2020-06-26T16:07:17+10:00

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