COVID-19: Judge Denies Mother’s Motion to Suspend Father’s Access because of Coronavirus

coronavirus and child access

A couple of days ago, I wrote an article about parenting through coronavirus. I highlighted the need, now more than ever, for parents to work together. Court is not the place to find solutions for your family, especially during a crisis. Now, a Superior Court Judge has shared a similar sentiment, directly to the mother who was seeking to suspend the father’s access because of COVID-19.

Justice A. Pazaratz (Ontario Superior Court of Justice) is well-known for his strongly worded decisions and instructive lessons for parents experiencing divorce or separation. This recent decision, Ribeiro v Wright, is no different.

The Issue

On March 22nd, 2020, the mother brought an urgent motion to suspend all in-person access for the father because of concerns over COVID-19.

These parents had been following a parenting plan since 2012, with joint custody and primary residence with the mother. The father’s parenting time with his son has been every other weekend.

In her court materials, the mother claimed that she and her family are practicing strict social isolation, and expressed concerns that the father would not maintain social distancing during his parenting time. Therefore, she did not want their son to leave her residence, including to see his father.

The Decision

Upon review of the mother’s motion, Justice A. Pazaratz did not feel that suspending the father’s access was warranted. The child’s relationship with both parents is vitally important. COVID-19 does not mean that the child cannot leave the residence to spend time with the other parent.

The Reasons and the Lessons

In his endorsement, Justice A. Pazaratz, stated:

“7. …There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.

8. On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.

9. Parents are understandably confused and worried about what to do.  Similarly, this is uncharted territory for our court system.  We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children. (emphasis mine)

10. None of us know how long this crisis is going to last.  In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved.  But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. (emphasis mine) In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

12. In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

13. In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

14. And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

15. Transitional arrangements at exchange times may create their own issues.  At every stage, the social distancing imperative will have to be safeguarded.  This may result in changes to transportation, exchange locations, or any terms of supervision.

16. And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.”

COVID-19 is Not Automatic Suspension of Parenting Time Nor Results in Urgent Hearing

“19. Most of our social, government and employment institutions are struggling to cope with COVID-19. That includes our court system.  Despite extremely limited resources, we will always prioritize cases involving children.  But parents and lawyers should be mindful of the practical limitations we are facing. (emphasis mine)

20. If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.  They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.”

“Right now, families need more cooperation. And less litigation.”

“23. Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families.  We know there’s a problem.  What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness. (emphasis mine)

28. I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.

30. None of us have ever experienced anything like this.  We are all going to have to try a bit harder – for the sake of our children.” (emphasis mine)

Ultimately, it is you and your co-parent who are best suited to make decisions for the health of your family. And your kids expect you to! They are already experiencing anxiety and pressure which may have a long-lasting, if not traumatic, impact. They need to know that they can count on you to protect them from additional conflict and increased risk of long-term damage.

Coronavirus and family law: What you need to know

coronavirus-and-family-law

 

Resolving family law matters can be challenging and stressful at the best of times, but right now it is especially hard due to the Coronavirus pandemic.

Here is some information and updates about how the Coronavirus is impacting family law matters and what this may mean for you.

The spread of the Coronavirus means the Courts are changing the way they are dealing with family law matters so the health and safety of Court personnel and the general public is protected.

CHANGES IN THE FAMILY COURTS DURING COVID-19

Further changes may occur but for now the current responses introduced by the Court include:

  • Many matters that were to be dealt with by the Court over the coming weeks and months may be adjourned to a later date
  • There will be a staggered listing of matters throughout each day to reduce the number of people in attendance at the Court at any one time
  • There will be a maximum of 8 people allowed in the court room at any one time (other than the Judge and Court personnel)
  • Court appearances will occur by phone wherever possible (if you have a lawyer this means both you and your lawyer will attend Court by phone)
  • The maximum time any matter can remain in any Courtroom is one and a half hours and the court room will be cleaned after each matter. Available court time each day will therefore be minimised.

New matters can still be filed with the Court and will be allocated a date as soon as possible, but this could be 2-5 months away. Urgent matters can still be listed but what is considered urgent will determined by the Court and subject to the availability of the Court.

SERVICES FROM DUTY LAWYERS AND COMMUNITY LEGAL CENTRES

It will become more difficult for individuals who are self-representing to access legal information and advice.

Legal Aid have cancelled the provision of Duty Lawyer Services in the Family Courts and Community Legal Centres have cancelled face to face advice sessions.

COVID-19 AND PARENTING MATTERS

Except for those that have recently been made, parenting orders won’t include arrangements about the Coronavirus pandemic. This means that many separated parents will be wondering how their parenting plan or parenting order will work over the next few weeks and months.

Examples of how the Coronavirus is impacting parenting matters include:

Changeover Arrangements

Parenting orders often specify that changeovers are to occur at a public location, for example the children’s school, day care or after school activity. If these changeover locations close, the changeover may still be able to occur at this location, for example, out the front of the school or day care facility, rather than inside. In some situations though, there may be a need to vary the location.

Lockdown or Self Isolation Arrangements

If a lockdown is announced or self isolation becomes necessary changeovers may not be able to occur as planned. If the children are unable to spend time with a parent because of a lockdown or self isolation, make up time may need to be arranged once things return to normal. It is best if parents plan ahead for suitable arrangements in the event of a lockdown. If parents are unable to communicate and reach agreement seek legal advice sooner rather than later.

Domestic Travel

Restrictions on domestic travel have increased and if separated parents live interstate it may not be possible, or in any event not advisable, to arrange interstate travel for the children.

General Information

Regardless of the impact of the Coronavirus, court orders are legally binding on parents and should be followed. Parents should not see the Coronavirus as a way to take advantage of the other parent or reduce the other parent’s time with the children.

CHANGING PARENTING ARRANGEMENTS DURING A PANDEMIC

If a parent wants to change parenting arrangements this should be done on the basis that the change is in the best interests of the children and with the agreement of both parents.

The first step is to discuss this with the other parent. If the parents are unable to communicate directly then see a lawyer who will be able to communicate with the other parent on your behalf.

If there is no agreement with the other parent to vary the parenting orders you should seek legal advice about your position.

CORONAVIRUS AND CONTRAVENTION PROCEEDINGS

If a parent breaches parenting orders, contravention proceedings may be commenced with the Court. If a contravention is determined to have occurred, then the Court can order any of the following:

  • That the parent who breached the orders attend a post separation parenting course
  • That there be make up time if the breach involved missed time between the children and a parent
  • That the orders be varied
  • That the parent who breached the order enter into a bond
  • That the parent who breached the order pay compensation and / or costs to the other parent.

A defence to contravention proceedings is that there was a reasonable excuse to breach the orders. A reasonable excuse is established when:

The person who breached the order believed on reasonable grounds that their actions causing the contravention were necessary to protect the health or safety of a person, including themselves or the child, and

This contravention did not last any longer than was necessary to protect the health and safety of the above person.

Although there are no determined cases yet, it may be possible for a  parent who breaches orders to show that the circumstances relating to the coronavirus amounted to a reasonable excuse to breach the orders. This however will turn on the individual circumstances of the matter and what may be a reasonable excuse in one matter may not be such in another matter.

By way of example, if a parent breached a parenting order by not allowing a child to spend their usual week with the other parent because of the following:

The child has a prior diagnosis of a significant respiratory condition

The parent the child is to spend time with has been diagnosed with the Coronavirus this may be considered a reasonable excuse for breaching the orders.

On the other hand, if a parent breached a parenting order by not allowing a child to spend their usual week with the other parent because of general hygiene and social distancing concerns in the other parent’s house then this would likely not be considered a reasonable excuse for breaching the orders.

CORONAVIRUS AND PROPERTY SETTLEMENT PROCEEDINGS

As part of family law property settlement proceedings assets such as shares, businesses and superannuation are normally valued. It can be difficult to know when and how to value these assets during uncertain economic times.

If you are about to start the property settlement process it is best to get legal advice before these assets are valued and before a property settlement agreement is reached.

Similarly, if you have recently finalised property settlement matters but the outcome now seems unfair or unworkable due to the changing economic situation you should also seek immediate advice.

5 key issues to discuss BEFORE you get married

getting-married-familylawexpressPlanning a wedding can feel all-encompassing, and in this age of Instagram, the pressures seem higher than ever to create a picture-perfect day. But getting married isn’t the same thing as being married. If therapists like me had our way, there would be far more preparation and discussion around the latter than the former.

It’s not that people are unaware of the issues that add stress to their relationships – perhaps they’ve even fought about them already. But the optimism and momentum of an engagement often nudge couples to believe that challenges will work out on their own. It may seem that married life will somehow automatically make your partner better with money, more likely to clean up after themselves, or less addicted to their phone.

But ceremonies and legal statuses don’t tend to change our inherent personalities.

In fact, if your incompatibilities arise from problems with gender roles – like inequality in the division of household labor within a heterosexual relationship – then there’s evidence that these problems tend to grow even bigger after tying the knot, as cultural notions of “wife” and “husband” make traditional gender roles seep in further.

So, don’t put your blinders on. There are nearly universal areas of strain within married life, and it’s important to know how you’ll weather them. Having differences within these areas is expected; it may even be part of your spark together. But refusing to communicate about the realities of those differences is where things go wrong. Matching up perfectly isn’t nearly as meaningful as building a road map to handle the differences that are there. Be proactive, respectful and realistic – and don’t just assume that love conquers all.

Here are the most common areas of strife that I’ve seen tear marriages apart, and the questions you should discuss before, not after, you say “I do”:

1. Work and money

How devoted are you each to your careers, and what are your professional goals? Whose work life might need to be prioritised at times, and how? Are you open to geographical moves? Are you looking to make changes in your career, position or education? Will the burden of being the main source of income or health insurance fall to one of you, be shared or alternate over time? How might this change if and when you have kids? How do your spending habits match up? If there’s debt, who is primarily responsible for it? What are your expectations around joint accounts versus your own money? If there are inheritances or job losses someday, how would those be handled?

And of course the issue of how pre-marital wealth is to be split with and without children, in the event of an early separation or divorce, must also be a topic that is discussed and agreed upon. It need not necessarily involve a Binding Financial Agreement such as a Pre-Nuptial Agreement, but such an outcome, being more and more likely as time goes on, must having matching expectations, otherwise a devastating divorce can also become a financial noose around the head of one or both divorcees, an outcome that could have been avoided with some basic preparation.

2. Health

How do you handle stress and conflict? Are there underlying histories with drugs, alcohol, anxiety, depression or other mental health issues? What is “acceptable” stress relief, and how much time and money feels OK to spend on individual self-care? Does your sexual intimacy feel satisfying to both of you, or is there an imbalance in desires or needs? What would happen if one person’s sex drive declined significantly? What are your expectations of physical health and exercise, and what happens when your bodies change? How involved should you each be in each other’s medical care? What are your views on doctors, therapists, marital counsellors, alternative medicine, and when you would choose to seek them out?

3. Family

What are the expectations of having children or not, and when? How important is it to each of you? What will happen if pregnancy doesn’t occur easily, and what are your thoughts on infertility treatments and adoption? How do you feel about each other’s families and the role they’ll play in your lives? Would you ever move closer to your parents, and might they live with you someday? How will their care giving be handled as they get older – financially and logistically? How will big holidays be spent? Will vacations involve extended families? How much will you go to your families of origin for advice, and what will you do with that advice?

4. Living together

How will you divide the workload of household chores? If you’re living together already, how does the division of labor feel to each person? How might that change, and how often will you check in and make adjustments? Who feels more responsible for the “mental load” or the hidden work of running a home, and is that acceptable? What are your sleep and eating habits – and how well do they match? Who needs more time alone, more quiet, more air conditioning or more neatness?

5. Communication and social interaction

What are your communication styles, and do you argue “well” (with respect and patience, without resorting to personal attacks or silent treatments)? What about your need for physical affection? What are your expectations of what is shared with others – friends, coworkers, neighbours – about your personal lives and marriage? How do you bring up things that are on your mind when they’re hard to talk about? How do you prioritise friends, and how do you feel about each other’s? When would an emotionally close relationship with someone else start to feel like a betrayal or an emotional affair? What is your style of socialising, and how much time apart do you spend with your own friends or interests? How much planning should be done for weekends, evenings and free time – and who takes the lead on that?

Did any of these conversations reveal deal-breakers? No couple will line up 100 percent. But whether a given difference becomes a serious incompatibility depends on how big an issue is in your day-to-day life, and how willing you each are to bend. The more tempted you are to brush an incompatibility under the rug, whether due to awkwardness or how complicated or emotionally loaded it feels, the more you should pay attention to it. It’s not going away on its own. Being willing to talk and listen honestly about challenges – no matter how much of a buzzkill it is, or how hard it is to squeeze in when you’re overloaded with interviewing a bunch of florists or DJs – gives your marriage the best shot at survival.

Living with an ex: one in 10 ex’s live with former partner

living-with-your-exExorbitant housing costs are preventing split couples from making a clean break – more than one in 10 Aussies say they’ve had to live with an ex just to make ends meet.

One in 25, or about 4 per cent, said they were still living with their ex, sometimes years after the break up, research from Finder.com.au revealed.

Millennials, those currently aged between 24 and 40, were the most likely to be in this living arrangement while Baby Boomers seldom cohabited after a split.

Finder.com.au money expert Kate Browne said ex-couples’ chances of still living together correlated with high housing costs.

Nearly 30 per cent of Aussies struggled to pay their rent or mortgage each month, additional polling showed. Inner Sydney rents typically demand about $33,000 a year, while mortgage repayments across the greater city area average about $45,000. Melbourne and Brisbane rents average about $24,000 annually.

“In an ideal world, once you’ve fallen out of love, you’d be able to move on both emotionally and physically,” Ms Browne said. “The reality for some is the end of the romance isn’t the end of the roommate.”

Insurance worker Jacques van der Merwe, 38, lived with his ex for nearly six months after they broke up and said competition for rentals made it hard to move into a new place quickly.

“Suddenly you’re on your own so the rent you have to pay doubles. You’re up against 20 other people viewing the same home, most of them couples, who I think landlords prefer,” he said.

A Leichhardt bar worker told The Daily Telegraph she stayed with her ex for nearly a year because both their names were on a lease they couldn’t break early and neither wanted to be the one to move.

She was in a one-bedroom unit and continued to share the same room. “We just kept getting into the same fights again. You couldn’t start dating new people.”

She said she wouldn’t have been in this situation if she had more savings. “I paid most of the rental bond and I couldn’t afford bond for a new place until I got it back.”

Ms Browne said the best way people could protect themselves from an awkward living arrangement was by having money saved for a rainy day.

Psychologist Pandelis Tsomis said those stuck in relationships that have deteriorated can suffer sleep deprivation, increased anxiety and become more distrusting of people.

“You can get in a situation where you’re trying to avoid the house so much you develop dysfunctional coping mechanisms like gambling or alcohol addiction,” Mr Tsomis said.

Relationship expert and psychologist Cindy Nour said living with an ex could only work if it was an amiable split and in some instances it could give the couple a chance to review the relationship.

Mr van der Merwe said there was a happy ending to his story – after living apart he patched up his differences with his ex and they’re back together.

A step by step guide to administering a deceased estate

deceased-estate-serviceThe period surrounding the loss of a loved one is always a difficult time. When all you want is time to grieve, administering a deceased estate can be seriously challenging.

With this in mind, we have put together a guide to help walk you through the basic steps involved in administering a deceased estate:

Determine whether the deceased left a Will

The first step is to determine whether or not the deceased actually made a Will. There are a number of places that the Will may be located, including amongst the deceased’s personal papers, with their solicitor, their bank, or potentially even with their building society.

If there is a Will, it will generally appoint one or more persons as the ExecutorIt is the Executor’s role to administer the deceased’s estate, so if you are not the person appointed as Executor, you should advise the Executor of their appointment as soon as you possibly can.

If you are unable to locate a Will, it is important to seek legal advice on who the most appropriate person/s to administer the deceased’s estate would be.

Arrange the funeral

The first step in administering a deceased estate is organising the funeral.

If the deceased left a Will, it may specify their wishes relating to funeral arrangements. On a similar note, it is important to check the deceased’s personal papers, as they may have thought ahead and purchased a pre-paid funeral plan.

If there is no pre-paid funeral plan (or there is, but it does not cover the full cost of the funeral), you can take the invoice from the funeral home to the deceased’s bank and request that they arrange payment from the deceased’s bank account.

Obtain the death certificate

Obtaining the deceased’s death certificate is crucial in administering a deceased estate. The funeral director will usually assist you with submitting the appropriate forms to obtain the death certificate. It can take anywhere from 2 – 6 weeks for the death certificate to be issued.

Identify the deceased’s assets and liabilities

The next step in administering a deceased estate is to identity the deceased’s assets and liabilities.

Go through the deceased’s personal papers carefully to obtain details of their personal assets. It is important to keep in mind that this might include assets held solely in their name, as well as those held jointly with other parties. The kind of assets the deceased may own include real estatebank accountssharessuperannuation and life insurance policies.

Similarly, you should check to see if the deceased owed any monies.

Apply for a Grant of Probate (if necessary)

Depending on the deceased’s assets, you may need to apply to the Supreme Court of New South Wales for a Grant of Probate in order to administer the deceased’s estate. A Grant of Probate is a document issued by the Supreme Court which confirms both the Executor’s appointment, and that the deceased’s Will is the most recent one. If the deceased died without a Will (or in certain other circumstances), it may be necessary to apply for Letters of Administration rather than a Grant of Probate.

Generally speaking, if all of the deceased’s assets were jointly owned with another person (more often than not, their spouse), a Grant of Probate is not required. If the deceased owned any real estate or held assets in their sole name over a certain value, then a Grant of Probate will be required.

Ideally, the application for Grant of Probate or Letters of Administration should be submitted to the Supreme Court within 6 months of the date of death. If it is submitted later than 6 months, the court will require an explanation for the delay in the application.

Gather in the deceased’s assets

Once you have the Grant of Probate or Letters of Administration, the next step in administering a deceased estate is to gather in all of the deceased’s assets.

Depending on the assets owned by the deceased at the time of their death, this could include closing their bank accounts, obtaining any death benefit payable under the deceased’s superannuation policies, collecting in the proceeds of life insurance policies, either selling or transferring real estate to the respective beneficiaries and similarly either selling shares or transferring those shares to the beneficiaries.

Make sure the deceased’s debts are discharged and tax affairs are dealt with

Once the deceased’s assets have been gathered in, you will need to ensure that any debts owed by the deceased are paid.

You will also need to ensure that that the deceased lifetime tax affairs are up to date. If the deceased lodged tax returns, this means ensuring that all tax returns are submitted up to the date of death, and that any outstanding income tax owing to the Australian Taxation Office is paid.

Depending on the assets of the estate, the estate itself may also need to pay tax. If this is the case, an estate tax return will need to be lodged and any tax owing paid.

Distribute the balance of the estate to the beneficiaries

Once you are sure that all outstanding debts and tax have been paid, you can distribute the deceased’s assets to the beneficiaries in accordance with the terms of the deceased’s Will. If there is no Will, then Coleman Greig will be able to advise you as to who the beneficiaries of the estate will be, in accordance with relevant legislation.

Coronavirus outbreak and the impact on parents with shared custody

coronavirus and shared custodyWith people being encouraged to observe social distancing and isolation during the coronavirus outbreak, family lawyers are being asked how best to manage shared custody arrangements.

Legal Aid NSW family law director Kylie Beckhouse said common questions included whether people needed to comply with court orders during the pandemic and how to manage changeovers if schools were to close.

She said people would still need to comply with court orders.

“Talk to the other party, and if you cannot talk to them, try and communicate via a third party to work out a sensible resolution,” Ms Beckhouse said.

Family lawyer Rebecca Bunney said people might feel torn between breaching parenting orders and wanting to limit their children’s movements.

She said parents should try to have a combined approach to keeping the children away from crowds and older people.

Outbreak ‘not an excuse’ to cut another parent out

Ms Bunney said even if there were court orders in place, parents could still agree to vary the orders while social distancing and isolation was being encouraged.

“This is a public health emergency, this is not an excuse to start messing around with your parenting orders just because that is what you want to do.

“The advice to clients would be make sure the other parent is not missing out on time and they get make-up time, so if they miss two nights this week then say to them: ‘It is a credit, you will get to spend that time with them once this self-isolation is over.’

“They [should] get telephone calls with the children — FaceTime is a great option.

“It is not about cutting that other parent out, it is about keeping everyone safe.”

Parents self-isolating children may be shown sympathy

Ms Bunney said she believed in the event a parent contravened court orders, the court may take a sympathetic approach to those that wanted to isolate their children during the pandemic.

“Any parent that is isolating their children due to health concerns should be making every effort possible to continue to allow the child to have a relationship with the other parent, even if it is not face to face,” she said.

“What I would be recommending to people is to put everything in an email, have everything in writing, set out your concerns really clearly and do your very best to have a sensible, practical discussion about this.

“Do your very best to put all of your past hurt and concerns about your former partner to one side and really just focus on where is the best place for your children to be to have their movements limited as much as possible,” she said.

No increase in applications, WA Chief Judge says

In a statement, the Chief Judge of the Family Court of Western Australia said the court had not seen an increase in applications for parenting orders arising from concerns about COVID-19.

Chief Judge Gail Sutherland said it would be wrong and potentially confusing for the public if the Family Court were to produce general guidelines about any impact of concerns about COVID-19 on parenting cases.

“When the court is deciding a parenting dispute, the best interests of the child are the paramount consideration,” she said.

“In any case, the determination of those best interests can be multifaceted and complex and will depend on the individual circumstances of the particular family.

“Like all members of the public, parents with cases before the Family Court should pay careful attention to information and guidance provided by Government and the health authorities.”

The Family Court of Australia has responded to the COVID-19 pandemic by making changes to court operations to accommodate social distancing.

Urgent and priority trials including child-related and family violence matters will remain listed and will be conducted “in the safest manner possible”.

Non-urgent property-only trials may be adjourned, and non-urgent parenting trials will be given similar consideration at the discretion of the judge, while trials or hearings that can be done by telephone will be.

Why everyone should have an advance care directive

Advance-Care-DirectivesA move into residential aged care can be stressful enough without having to
confront the task of completing an advance care directive. It feels like an indirect way of saying “you are going to die here so you may as well as tell us how you want to go”.

However, an advance care directive is a great tool and everyone should have
one – regardless of age or health status – particularly if you have a firm
view of what a good quality of life looks like to you and you are relying on
someone to make sure your wishes are carried out.

But the day you enter aged care or hospital shouldn’t be the trigger point for
documenting or even discussing the sort of healthcare you want in the event you can’t speak for yourself.

An advance care directive is something that everyone living in aged care
should have. This may be important in the context of the current concern around COVID-19 and the impact of the virus on aged care homes – including how prepared they are for an outbreak and whether they have the necessary resources and a skilled workforce able to manage any such event.

Apart from vulnerable aged residents in care, aged care workers are just as
likely to contract the virus – although perhaps less likely to succumb to it as
long as they are fit and healthy.

Advance care planning has been slowly gaining momentum in recent years as hospitals and health authorities see the virtue in having a document stating a person’s preferences for end of life or medical treatment.

The third National Advance Care Planning week, being held from March 23 to 27, is an initiative introduced by Advance Care Planning Australia, which is funded by the Department of Health. It is a body that encourages all Australians, regardless of their age or health, to make their future health care preferences known.

The initiative challenges people to discuss what living well means to them
and to consider who they would want to speak for them if they were too sick
to speak for themselves.

An advance care directive is a legal document that can give a sense of certainty and control as your health declines.

However, for an advance care directive to be legally binding, the person completing it has to be competent and it must be signed by a GP or health professional and a witness.

There are different forms to be completed by those acting on behalf of someone who may have lost the capacity to express their wishes, but they won’t be legally binding.

What you do with your completed directive is up to you. You can carry it with you, give a copy to your GP and local hospital, and / or upload it to the central health database My Health Care Record through MyGov.

If you have appointed a decision-maker, they should know that you have an
advance care directive in place and where to find it.

According to End of Life Directions for Aged Care (ELDAC), generally, a health professional must follow a valid directive, even if it instructs them to refuse life-sustaining treatment, which will result in a person’s death.

If they do not follow the instructions, a health professional could be liable under criminal or civil law.

There are some limited circumstances in which a directive does not have to be followed, such as when it is too uncertain to guide decision-making or where circumstances have changed so much since completing the directive that it should not be followed.

Shock approach

The law on this differs across Australia. Starting the conversation about what sort of medical intervention you would want can come in many forms.

There is the shock approach. Just say you were in a coma following a car accident. Would you be OK being kept alive by machines? Or, you have a terminal illness, and if medical treatment could delay your death by two months, would you want it?

It matters how you express your answer in a directive.

CPR is one treatment people are often asked if they want used in case their heart or breathing suddenly stops. It makes sense if there is someone close by who knows first aid and that they should push hard on the chest to get the lungs going again.

Unfortunately, the chest pumping action is not quite what we see in the movies where the recipient jumps to life. Rather, CPR can often be a life-prolonging treatment rather than a quick start to full recovery.

If CPR is not started and done properly within about five minutes of the stoppage of the heart or breathing, there could be permanent brain damage. Even if CPR is started early and done correctly, it often doesn’t work. Fewer than one in five people who receive CPR survive and return to their previous normal life and normal level of function.

Not surprisingly the likelihood of success is much lower for an older person or someone with a serious illness or dementia.

An instructional directive such as “I don’t want CPR” or “I don’t want to be tube-fed” is one way of looking at advance care planning.

Thinking about what is important to you or what living well looks like to you are other conversation starters.

Before you start thinking “it will never happen to me” and “I don’t need one of those”, consider the statistics: 50 per cent of people will not be well enough to make their own end-of-life medical decisions and one-third of us will die before the age of 75, most likely after a chronic illness rather than a sudden death.

Research also shows that advance care planning can reduce anxiety, depression and stress in families. Family members who know a directive is being followed are also more likely to be satisfied with their loved one’s care.

Fewer than 15 per cent of Australians have documented their end of life wishes in an advance care directive. Most of us have a clear view of what is important to live well or what we value in life. Now, all we have to do is share that – preferably in writing; even better if it is outlined in a legal document relevant to your state or territory.

Notorious Australian Incest Clan to Stand Trial

Charlie Colt, Martha’s brother, was arrested with her at Griffith where they were living together in April this year

Charlie Colt, Martha’s brother, was arrested with her at Griffith where they were living together in April this year. Credit: NEWS.COM.AU

In the decades before they were found living in a squalid bush camp and accused of inbreeding and generations of incestuous sex, the Colt family moved freely from state to state, often earning money as travelling musicians.

But the law has finally caught up with them. Eight members of the alleged incest family are now preparing standing trial, starting in the NSW District Court.

Family patriarch Tim Colt (a court-appointed pseudonym to protect the identities of children) led a troupe of musicians made up of his children, including son Charlie and daughter Martha.

Tim and his wife June, who had emigrated from New Zealand, had seven children. Police allege four of whom would carry on the family tradition of interbreeding.

Tim is believed to have fathered several of his the 13 children of his daughter Betty, with whom he allegedly began to have sex after she turned 12.

June was the product of a sexual relationship back in New Zealand between a brother and sister.

Travelling from state to state, they had lived in remote parts of Western Australia, South Australia when, in Victoria in 2001, June died.

They moved back to South Australia, then Western Australia where Tim Colt died in 2009.

colts-incest-family-treeThe Colt clan’s world was torn apart on July 18, 2012 when a posse of police, and legal and welfare authorities arrived at the family farm and removed twelve of the Colt children.

By then, around 40 adult and child members of the family were living together on a remote and filthy plot in the hills behind the NSW rural town of Boorowa.

But it came to an end when one of the children attending the local school told classmates his sister was pregnant and they didn’t know which relative was the father.

Police and case workers visited the farm in NSW’s Hilltops region and were horrified by what they found.

The 40 Colts lived in putrid conditions in two caravans, a garden shed and a larger shed containing two tents on an un-sewered block without running water strewn with hazardous wiring.

The living quarters and cooking facilities were filthy and strewn with rubbish, and the children were dirty, wore grubby clothes, were unable to make eye contact and spoke unintelligibly.

They had fungal infections, rotten dental hygiene, and used the bush as their toilet.

Some had facial mis-alignments, impaired walking and had never used a toothbrush or toilet paper.

Taken into care, the children began telling stories of highly sexualised activity back at the farm or disclosing disturbing pastimes such as mutilating the genitals of pet animals.

Colt family members moved to parts of NSW, South Australia and Western Australia.

Almost six years after the family was split up, police arrested eight of them in a three-state swoop.

Betty Colt is facing five charges of making a false statement on oath amounting to perjury, which relate to her allegedly trying to conceal the paternity of her children.

Betty’s sister Martha is charged with six counts of perjury.

Betty’s sister Rhonda and daughter Raylene also face one charge each of perjury.

Brother Charlie Colt will go on trial at a later date on 27 charges, including six of sexual intercourse with a child under 10 years and 12 of inciting aggravated indecency of a person under 16 while in authority.

Three of Charlie’s male relatives, including two men believed to be his nephews, will face court as his co-accused.

Cliff Colt faces 21 charges and Roderick Colt 19 charges, both accused of 12 counts of inciting aggravated indecency of a person under 16 while in authority.

Another male Colt faces two charges of incest with a person around 16 years old under the authority of the alleged offender.

The trials of four of Tim Colt’s children and four grandchildren will hear testimony of family members, many of whom were children at the time of the allegations.

Also giving evidence will be a sister who allegedly had three children with her brother.

4 things you need to know about Child Custody disputes

 

1. You have to attempt to mediate with the other parent

Before you, or the other parent, can commence 4-things-you-need-to-know-now-about-Child-Custody-disputes Court proceedings about Child Custody, there is a legislative requirement that you attempt to participate in Family Dispute Resolution. This is a special type of mediation focused on helping separated parents reach agreement about future arrangements for the children.

If there has been family violence, you may not be able to participate in Family Dispute Resolution, or it may not be practicable. Also, if for some reason you need to urgently seek the Court’s assistance, or there is a child who is at risk of harm, there are exemptions to the requirement for Family Dispute Resolution.

In all other cases, you will need to obtain a certificate, known as a Section 60I Certificate, from a registered Family Dispute Resolution Practitioner confirming that you have participated in that process, prior to the Court accepting your Application.

Across Australia there are a number of private Family Dispute Resolution Practitioners who can assist.

2. You don’t have to be a parent to start Court proceedings in a Child Custody Dispute

The relevant legislation outlines exactly who may bring parenting proceedings in the Family Court of Australia or the Federal Circuit Court of Australia about Child Custody. Such people include:

  • either or both of the child’s parents;
  • the child;
  • a grandparent of the child; and
  • any other person concerned with the care, welfare or development of the child.

If you are a non-parent considering starting Court proceedings about a Child Custody dispute, it is recommended that you obtain expert advice from a family law lawyer about the specific matters the court will look at to determine whether you have standing to bring an Application.

3. Court is not your only option

If there is any possibility at all that you, and the other parent, can come to an agreement about future arrangements for your children, you should try to avoid Court proceedings at all costs.

Of course, in some situations, Court proceedings are unavoidable. However, it is important to understand that Child Custody disputes before a Court often becoming very costly, lengthy and messy. Parents rarely come out the other side with an improved co-parenting relationship. The other thing to remember is that you and the other parent are basically handing over the outcome of the dispute to a Judge. You both lose control of how things may go, and often people are not happy with the direction that the Court may take.

If you think that Court proceedings can be avoided, you and the other parent should keep control of the outcome, by doing your best to come to an agreement. You can attempt to reach agreement through informal negotiations, with or without the involvement of lawyers, and through mediation, either private mediation, or Family Dispute Resolution.

4. It’s all about the best interests of the children

In determining what arrangements to put in place in Child Custody disputes, the Court’s primary concern is that the children are being protected from physical or psychological harm, and that proposed arrangements are in the child’s best interests.

There are many factors that the Court will look at when determining what is in a child’s best interests, but it will always come back to a consideration of what is in the best interests of the child, not the parents.

A child’s best interests may not necessarily correlate with a child’s wishes. The Court may consider a child’s wishes, but it is in no way bound to uphold those wishes. The Court is also not bound to agree with either parent, and can only make Orders if it is satisfied that the child is not at risk of physical or psychological harm, and that the Order are in the child’s best interests.

Family Court report writer charged with sexually abusing three children

Family Court report writerAn accused paedophile has been used as an expert by the Family Court in custody disputes that involve allegations of child sexual abuse.

The psychologist, who has since been charged with sexually abusing three children, was appointed by the Family Court to make custody recommendations in cases where one parent had accused the other of sexual abuse.

One of Australia’s foremost family law experts said it could open the way for custody rulings involving the expert to be overturned.

One mother, who was sent to the psychologist in 2013 after alleging her three-year-old daughter was abused by her father, told the ABC the psychologist had made her feel extremely uncomfortable.

Greta* said he implied she may not be satisfying her husband sexually and even if he had abused their daughter it did not mean he couldn’t have a relationship with the child.

“He was kind of overly physical with me. He kept touching my arm and my leg. It made me feel creeped out. He said weird things. He kept telling me that he knew about real paedophiles and that they would show up on [psychometric] tests,” she said.

“My first impression was ‘this isn’t going to go well’.”

The psychologist’s family report was never provided to the court.

However, in another case the psychologist’s report recommended the child “continue to live with [the father]” after the mother raised allegations of sexual abuse, saying he “found no significant evidence” the abuse had occurred.

At the time of the family report interviews the psychologist had not been charged with any offences. It is alleged the offending occurred many decades ago.

University of Queensland professor Patrick Parkinson, said a child sex abuse conviction could “absolutely” give a parent grounds to seek to quash custody rulings linked to the psychologist.

“The fact that a [an expert] has been convicted would in my view amount to, in itself, sufficient changed circumstances for the court to look at the case again — in the light of the current circumstances of the child.”

Even the charges, coupled with other changes in circumstances could form grounds to challenge a custody ruling, he said.

The psychologist remains on bail and the matter has been adjourned to October.

The psychologist cannot be identified for legal reasons.

When asked what measures it had taken to ensure any expert charged with criminal offences was not used by the court, a spokeswoman said the court could not comment.

Sydney family sent to Melbourne for family report

The family law system has come under heavy scrutiny after recommendations from the Australian Law Reform Commission (ALRC) in March that included sweeping changes and a call to abolish the federal system altogether.

The ALRC recommended the Family Court introduce mandatory accreditation for family report writers, otherwise known as single expert witnesses, after concerns over the quality of their reports and qualifications.

In June, the ABC revealed a Sydney psychiatrist was the subject of numerous complaints to the Health Care Complaints Commission (HCCC), that would not be investigated after the HCCC stated it did “not have the power”.

The Family Court stated on April 1 that the psychiatrist was not among its in-house report writers and it did not keep track of private report writers used in cases.

However, the ABC has seen documents that show the psychiatrist was still being considered by parents as a report writer in May.

Lilly* was one of the parents who lodged an official complaint against the psychiatrist last year and said her ex-husband had requested a family report from the psychiatrist despite the many complaints made against him.

In response, the court ordered the Sydney-based family, including three children, travel to Melbourne to attend another report writer at the parents’ expense.

Lilly said she felt bullied into signing the consent orders that required her to attend a report writer in Victoria.

“I requested more time be made available to seek out a different report writer. I indicated I could not afford the airfare or the accommodation.”

The ALRC said a national training program for report writers is being worked on in consultation with the Association of Family and Conciliation Courts (AFCC) and the federal Attorney-General’s Department.

However, an influential AFCC member involved in representations to the Government was, just months ago, cautioned by the medical watchdog for breaching a parent’s privacy including by running therapy in a wine bar.

A spokesman for the Attorney-General said the department was not involved in the development of the training but was being kept informed by the AFCC.

He referred questions back to the AFCC and the Family Court.

The AFCC did not respond to specific questions about the training, which is not mandatory for court-appointed experts.

But AFCC board member and former Family Court chief justice Diana Bryant emailed the ABC a brochure of an AFCC advertisement promoting “Family Report Writer Training”.

On the AFCC website, the three introductory training modules are listed at $400 each.

The site promoted the 2020 “masterclasses” being held in Singapore, Hong Kong and Japan.

A Family Court spokeswoman said it was unable to comment on the training program.

*Names have been withheld for legal reasons.