COVID and the legality/ethics of isolation

[sammy01]

It would seem clear to me that parenting orders be temporarily suspended for the isolation period.... Your gonna hate everything I write today... Oh well.

Mate at one point you said that the rule was a 5km radius from home... Comparing apples to pears. 5km radius when was when we were all in lockdown to prevent the spread and to prevent us getting Covid....
The lockdown you're now experiencing isnt applicable to the whole state. Grasping at straws?

So let me just answer according to your criteria above...
1. Legally? well short version - yup a technical breach.

FAMILY LAW ACT 1975 - SECT 70NAE​

(4) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child)
"health and safety of A person". So, by breaching the ex has protected the safety of the little old lady you're child didn't walk past at Macca's because the kid needs to go to the toilet.

In short - there is no way in hell you want to fight this one in court. It is not about family law trumping lockdown rules. It is about whether or not a judge would accept the ex had reasonable grounds to breach the family court orders.. So the only real hang up is whether or not the 'respondent believed on reasonable grounds...'? Eering on the side of caution seems reasonable. It also seems reasonable to interpret the iso rules in a way that suggests she should not leave the house... So can you make a case that she is being completely unreasonable? NOPE didn't think so...


Ethically? Well - This is where you're gonna hate my answer. I'm gonna use the latest lingo that the feminazis have introduced.... It could be argued you're trying to use 'coercive control' to compel your ex to comply with a court order when clearly she has adequate grounds to breach that order. Ethically, you should not expect the orders to be complied with right now. Hell, in this case, I don't even think you should be asking for make-up time.

I reckon this is one example where reverse psychology would have been the better strategy... Suggest the sick kid stay with her and watch her whinge about how you're not prepared to do the heavy lifting blah blah.

Hey GLASSHALFFUL... Did you hear that god almighty screech a few days ago? That was the sound my ex made when I told her that I had the kids vaccinated....

 

[Atticus]

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,

Given the circumstances, ie, there is a positive case in your house, IMO she is within her right to withhold & would likely be found as having a reasonable excuse if it proceeded to court.

 

[GlassHalfFull]

Mate at one point you said that the rule was a 5km radius from home... Comparing apples to pears. 5km radius when was when we were all in lockdown to prevent the spread and to prevent us getting Covid....
The lockdown you're now experiencing isnt applicable to the whole state. Grasping at straws?

I'm not grasping at straws. I'm just considering that the situation I'm in is a bit unique and existing laws and guidelines don't really cover that situation. The whole point of 5km radius lockdowns was, as you said, to prevent the spread and prevent others getting Covid. Yes, and I didn't disagree with the premise of it at the time, but there were obviously valid exceptions for travel/contact that was allowed, like maintaining contact with your children. And as I mentioned, the isolation (not lockdown) that I'm referring to still has the same purpose: to prevent the spread of Covid within the community.

Ethically? Well - This is where you're gonna hate my answer. I'm gonna use the latest lingo that the feminazis have introduced.... It could be argued you're trying to use 'coercive control' to compel your ex to comply with a court order when clearly she has adequate grounds to breach that order. Ethically, you should not expect the orders to be complied with right now.

That's the thing, I don't think it's ethically black and white at all. Unless you're taking the ethical view that all laws should be obeyed blindly no matter whether they apply sensibly to all situations or not. That's possibly a valid argument, for sure, but I don't think that's what we're discussing here. My situation is one where if we were to handover the children in a location that would not jeopardise the safety of the community, there would be literally no possibility of additional community spread and therefore I would argue is ethically sound, or at least not obviously unethical. We've both already got Covid. We can't infect ourselves again and again any more than a single household can. Effectively it's like we are the same household that has split into two physical locations. We caught the same virus at virtually the same time from the same source. So while there is technically a law that says you should not isolate in more than one household, I strongly suspect that law presupposes that another household doesn't already have Covid, and therefore could infect them and contribute to the community spread. That doesn't apply to my situation.

in short - there is no way in hell you want to fight this one in court. It is not about family law trumping lockdown rules.

Yeah, I'm not talking about taking her to court over it. I'm just trying to figure out whether there's anything legally persuasive in case we are in disagreement about it.

Hell, in this case, I don't even think you should be asking for make-up time.

I'm confused about why you would think that. I only get one overnight per week and one weekend a fortnight. I've already lost one overnight and it's looking like I'll lose another overnight and at least half of the fortnightly weekend because their isolation doesn't technically end until Saturday morning. So I will not have seen my kids for 2 weeks, and lost 3 days of my 5 days a fortnight in that period. And that's IF their isolation ends after 7 days and doesn't extend. That's in circumstances where she has 9 days a fortnight and I've literally just spent 3 years in Family Court fighting trying to get regular a fair and reasonable amount of time so I can be a father to my children. I value the small amount of time I get to spend with them and I believe my children value that time too. Why shouldn't make up time be provided?? My ex gets the majority of it already. Fair is fair.

 

[Rod]

I'm just trying to figure out whether there's anything legally persuasive in case we are in disagreement about it.

The COVID fines are strict liability offences. You do the crime, you pay the fine.

You can contest the fine in court, plead guilty, offer a plea in mitigation, and hope the Magistrate records no conviction and withdraws the fine because of your unique circumstances. You may get away with it now. Pre-Omicron I would not have liked your chances.

 

[GlassHalfFull]

The COVID fines are strict liability offences. You do the crime, you pay the fine.

You can contest the fine in court, plead guilty, offer a plea in mitigation, and hope the Magistrate records no conviction and withdraws the fine because of your unique circumstances. You may get away with it now. Pre-Omicron I would not have liked your chances.

Thanks Rod. In my case, it's not about 'getting away with it' in terms of the law (I'm quite sure that nobody would even notice that the children were with me in isolation and not her), it's about convincing my ex to agree to letting me have the time with my children when there is no (in my opinion - I'm not trying to prompt you for yours) harm to public health in doing so. She is generally keen to use anything she can to take my time away with the children. Even when trying to follow our parenting orders, she is often quick to reinterpret the orders to her advantage, but will not give an inch if I ask her for some flexibility on times/days.

 

[Atticus]

She is generally keen to use anything she can to take my time away with the children. Even when trying to follow our parenting orders, she is often quick to reinterpret the orders to her advantage, but will not give an inch if I ask her for some flexibility on times/days.

Then I think you know where this is headed... I can't see any point of law that is going to assist you leave alone convince her.

She'll refuse because she can, & take delight in your anguish. When she refuses, don't give her the opportunity to throw salt on the wound is my advice.

If it were me, I'd be making sure to have a negative test to show you're clear so she can't justify withholding any longer than necessary. Sorry for your situation. It sucks

 

[GlassHalfFull]

Yeah, she has already said she's asked 'various officials' and they've insisted that the rule is you can only isolate in a single household. Which I don't disagree with, but on their first day of isolation, it was our daughter's birthday (I was supposed to have the kids overnight but because of isolation, I didn't even get to see them, let alone have them overnight) and she had friends and family come over to wish her happy birthday apparently. I only found out about it because my daughter told me about it in a video call. So already it's clear that my ex will breach isolation rules when it suits her, just not when it doesn't. That's the frustrating part. Yeah it sucks.

 

[Rod]

If it were me, I'd be making sure to have a negative test to show you're clear

Negative test is not required. Only have to isolate for 7 days after the first positive test. People are assumed to be non-infectious after 7 days. It is possible to continually test positive for over a month after being infected.

Yes GlassHalfFull, the situation sucks.

 

[sammy01]

Look, it is a moot point. Even if family law courts were a walk in service, you've got Covid... You can't walk in. As I've pointed out she has a 'reasonable excuse'. You don't think it is reasonable?
And no make up time? Well look, this is never gonna see the inside of a court room. So you're only gonna get make up time if the ex agrees. Why bother asking. You know the answer... But I don't think it is warranted simply because it wasn't planned or intended. The ex didn't ask to change the parenting arrangements so she could take the kid on holidays.

Final thought - stop fighting. Especially stop fighting the fights you will not win. You were never gonna win this one. READ THAT BIT AGAIN IT IS BLOODY GOOD ADVICE. All you've done is re-enforce the fact that there is a shitty power dynamic. So don't play that game.
Story time - about 6 yrs ago I started working on an idea. The opposite of love is not hate. It is ambivalence. It took some effort. I had to teach myself to not give a f**k. She would leave me at Macca's for an hour waiting. Ok, I'll get into my running gear and run 500 METRES down the road and back... So instead of waiting I was exercising. But more importantly I made an effort to refuse to let her little BS games fcuk with me emotionally. I learned and practiced ambivalence. Guess what. She became a little bit more human. Not by much, but a little. Occasionally, she would even ask me to have the kids outside of the orders. Sure she would fcuk me over down the track by telling me that I had to pay that time back. But fcuk it - stress kills. I wanna out live her. Mate you've been on this site and getting smashed for how many yrs? Might be time to reconsider your strategy. Now you have final orders, learn to put this s**t behind you.

 

[GlassHalfFull]

Yeah, as I said, I'm not planning to breach her or take it to court. I was simply saying that I felt that there were good logical reasons why, despite the guidelines about isolation, there was no real harm in breaking isolation to handover the children in this instance because both households were equally 'infected' with Covid and my household was no more likely than theirs to contribute to the spread of Covid.

Also, for the record, I don't have Covid. My partner and step-son caught it, my ex and my younger daughter caught it, but I didn't and my elder daughter didn't either, despite us both being in direct contact with 2-4 people who had it. These things happen. I tested negative on three occasions in the last week. As of today, I've isolated for a full week and therefore can re-enter the community.

The ex has agreed to make up time anyway. That was the one reasonable thing she agreed on.

I'm not fighting btw. At least not on this occasion. I was fairly reasonable, and I simply put forward logical arguments about why there was no danger in us having the kids despite the isolation. It would have been nice to find legal arguments that would have supported that, but of course the law doesn't factor in every conceivable scenario. I bet if the powers that be really sat down and nutted this one out, they probably would have reached the conclusion that there was no particular risk to two Covid-positive households handing over children in a Covid-safe way in order to maintain parenting arrangements. But obviously they haven't, and unfortunately for me and my children, the letter of the law prevails over common sense. It is what it is.