COVID and the legality/ethics of isolation

[GlassHalfFull]

Here's an interesting scenario that is playing out in real time for me.

Background info as follows:
I have parenting orders re my two children, calling for weekly overnights on Wednesdays and every second weekend. I have a new partner and step-son through her, and the three of us live together more or less full time, and my 2 children visit regularly. Last Tuesday night, my step-son tested positive for COVID during the routine RAT tests required for school in Victoria, so into isolation our family went. I was due to have my children the next day but had to cancel that weekday overnight due to us isolating. Fast-forward 5 days and my partner has now tested positive but I am still negative. My ex partner (my children's mother) has just contacted me to say that both herself and the younger of my two children have tested positive, which leaves my elder child and myself as the only two in our households that are yet to test positive. Perhaps we're immune. I've had 2 Pfizer shots and a booster, she's had just the one initial Pfizer shot.

My curly question is this, both in terms of ethics (subjective) and the law (arguably more objective)... Given both households are basically infected already (and they likely caught it from us during my children's weekend time with us just prior to us realising my step-son had it), should normal handovers as per our parenting orders proceed as normal, as long as we are effectively still isolating? (ie meeting somewhere that wouldn't unduly risk infecting other people). The issue I see is that you're not supposed to break isolation for any reason other than to get tested or to seek medical help.

Here's the Quarantine Isolation and Testing Order 2022 (No. 5):

https://www.health.vic.gov.au/sites/default/files/2022-02/Pandemic-Quarantine-Isolation-and-Testing-Order-2022-No-5.pdf

What I think seems clear is that for a self-diagnosed person under clause 9(2), it says that you must remain in one location for the duration of the isolation but there is a Note 2 which states: "once a person has chosen the premises at which to self-isolate, the person must reside at that premises for the entirety of the period of self-isolation unless an exemption to move to and self-isolate at an alternate premises has been given: see clauses 34(2)(a) and 34(4).".

Clause 34(2)(a) says that you should only leave isolation to seek medical care, BUT Clause 34(2)(b)(v) states that you must not leave isolation except if required to do so by law. Now, would parenting orders be required by law? The answer is yes, surely? All guidance previously has said that during Covid times, you should endeavour to follow parenting orders unless you have a reasonable excuse, and a reasonable excuse is normally described as needing to isolate. So it seems we have a bit of a conflict here. Your thoughts, brains trust?

 

[Rod]

Now, would parenting orders be required by law?

No.

Public health orders trump parenting orders. To allow otherwise makes a mockery of public health orders. Examples of lawful exceptions to isolation are things like having your house burn down, or destroyed by a falling tree, or a bush-fire evacuation. If the house is not habitable for some reason, then that overcomes the COVID isolation orders.

The Feds already lost the public health argument with the States about who does what, except with international borders and aged care. Trying to use the Federal law is superior to State law argument only works when both attempt to cover the same field. In your scenario family law is not in the same field as public health.

 

[GlassHalfFull]

Trying to use the Federal law is superior to State law argument only works when both attempt to cover the same field. In your scenario family law is not in the same field as public health.

Fair enough. But during the previous lockdowns when we were required for 'public health' reasons to stay within a 5km radius, it seemed that the pretty clear legal advice (as per Legal Aid's website) was that you were allowed to (in fact required to, with few exceptions) follow parenting orders to maintain contact even when it meant breaking those lockdown rules. You were even permitted to cross state lines that were otherwise locked shut if brandishing a copy of the parenting orders. I'm still a little unclear about where the line is drawn exactly on public health trumping parenting orders, especially given that now it's virtually a free-for-all in terms of restrictions being eased and 'living with covid' policies introduced? We don't even need to scan QR codes in most locations now since it seems that tracking and containing Covid is no longer possible.

As I mentioned, both households have family members who contracted Covid in the last week (almost certainly from my step-son as he was the first to test positive), so in practice there is not likely to be any additional infections from following the parenting orders given we're both in the midst of it already, as long as we don't expose anyone not in those two households to an infection.

 

[Rod]

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I should say I've not kept up with all the current rules around isolation and do not intend to do unless I test positive at some stage.

You asked your question from a ethical and legal perspective.

I answered in a general way how to interpret the laws. Ethics is a whole other minefield and one I prefer not to step into in a public forum.

 

[GlassHalfFull]

OK obviously Legal Aid don't want to be held accountable for providing legal advice so they have a disclaimer. But that says more about their (reasonable) fear of accountability than it does about the validity of the 'information' they provide on their website. I'm confident it has been vetted by their best legal minds on the subject before being put online so that they aren't inadvertently publicising a suggestion that is legally incorrect.

Indeed though, I did ask my question from legal and ethical perspective and indeed I think the ethics are a bit more of a minefield. There's the argument that a victimless crime is not a crime at all.

 

[Rod]

Good luck and hope everyone is well.

 

[Atticus]

during the previous lockdowns when we were required for 'public health' reasons to stay within a 5km radius, it seemed that the pretty clear legal advice (as per Legal Aid's website) was that you were allowed to (in fact required to, with few exceptions) follow parenting orders to maintain contact even when it meant breaking those lockdown rules

Yes. The chief justice of the family court statement was fairly clear that where a parenting order existed, the parents were meant to facilitate normal contact whenever possible. That was back in the beginning, early 2020. Not sure what the latest statement is, because in typical family court fashion, the link that is supposed to take you there just takes you to the home page with no further direction. Sigh.

That aside, I think the ethical (& legal) position is that the best interests of your child/ren are paramount at all times.

There is a caveat in the family law act that applies to all parenting orders, pandemic or not, that says a parent can withhold a child if there is a genuine threat to the safety or well-being of that child, for as long as that threat exists, & that amounts to a reasonable excuse for contravening ... It could *possibly* be argued that sending a child to a household where they will be a close contact of a positive case would fit that caveat. As opposed to " your'e not getting the kid because you *may* have Covid"

That said, if both parents are in agreement regarding which household isolation will occur, then it's never going to be an issue today as opposed to 12-18 months ago.

 

[GlassHalfFull]

Yes. The chief justice of the family court statement was fairly clear that where a parenting order existed, the parents were meant to facilitate normal contact whenever possible. That was back in the beginning, early 2020. Not sure what the latest statement is, because in typical family court fashion, the link that is supposed to take you there just takes you to the home page with no further direction. Sigh.

That aside, I think the ethical (& legal) position is that the best interests of your child/ren are paramount at all times.

There is a caveat in the family law act that applies to all parenting orders, pandemic or not, that says a parent can withhold a child if there is a genuine threat to the safety or well-being of that child, for as long as that threat exists, & that amounts to a reasonable excuse for contravening ... It could *possibly* be argued that sending a child to a household where they will be a close contact of a positive case would fit that caveat. As opposed to " your'e not getting the kid because you *may* have Covid"

That said, if both parents are in agreement regarding which household isolation will occur, then it's never going to be an issue today as opposed to 12-18 months ago.

Thanks Atticus. You may have misinterpreted my initial question though. What I was asking was about the legality or ethics of 'breaking isolation' to handover the children from one household that is currently infected with Covid to their other household that is also infected with the same Covid. In other words, it's very likely that the children first caught it from us, then went back to their mother where one of the two children and their mother then tested positive. And now as per the orders, they are due to come back to us this coming Wednesday overnight and then Friday to Sunday a few days after that.

To go into slightly more detail:

Our household
* Myself (Covid negative)
* My partner (Covid positive)
* My step son (Covid positive)

My ex's household
* My ex (Covid positive)
* My elder child (Covid negative)
* My younger child (Covid positive)

So you see, 2 out of 3 in both households currently or very recently have had Covid, and 1 in each household has not yet tested positive, and may not at all. My logic is that given both households have been infected by the same virus likely from the same source (my step son), there's little risk of anyone new being infected for the children to maintain contact. At least, no greater risk than each of us remaining in our existing isolation. Already I have lost one overnight day with the children due to isolation, and now technically I may miss a further 3 full days if we are to adhere strictly to the isolation rules, because my daughter tested positive on Thursday or Friday I believe, and therefore their isolation extends until at least next Friday. And even then, that's contingent on them having a negative RAT test after 7 days.

So I guess my belief is, if there is no additional risk of infection to handover the children if we do so carefully and not in a very public place, there is no good reason not to maintain contact as per the parenting orders even though you are supposed to isolate in a single household. I'm not sure there is any guidance on situations where parenting orders conflict with isolation orders and where both households are or have very recently been infected and therefore the reasons for maintaining a single household isolation are less persuasive! What are your thoughts on that?

 

[Atticus]

If the family law aspect is not an issue, that is, neither of you are going to attempt to accuse the other of withholding without reasonable excuse, then the isolation laws alone shouldn't prevent you from following your orders (IMO).

The aim of the ISO laws is to prevent as far as possible, community spread. I'm fairly sure that early on in Omicron, the view was that it's highly probable that if a person within a household was positive, then every member of that household will get infected.

In your case, both households are infected, so as long as both of you (parents) are in agreement about where ISO should occour, then I can't see how anything would come of it. the ethical question is one only you can answer I think.

 

[GlassHalfFull]

And there's the (potential) issue. I've asked if we can continue regular court ordered time given the circumstances with us both being infected, and haven't heard back yet. Just wanted to know where I stood legally in case we can't reach an agreement, which is common especially when she has the power dynamic in her favour as she does presently.