As practising Lawyers we never thought we’d see the word ‘bubble’ feature in correspondence negotiating care arrangements or affidavits, let alone in minutes from Judges. As simple as the term sounds, it proved effective in describing the social arrangements we were required to maintain during levels three and four.
With level four lockdown looming, Dr Ashley Bloomfield, Director General of Health, advised that shared care and contact arrangements for children in separated families could continue, provided the households were within the same community. This was later confirmed by Principal Family Court Judge Moran who said that generally children could maintain visits between their parents unless someone from one of the households has tested positive for COVID-19, been in close contact with someone being tested or who has tested positive themselves. While this appears to be sound and straightforward advice, in practice it is not so simple, and serves to emphasise the complex nature of many children’s family arrangements.
Impacts on pandemic ‘bubbles’ on children
The problem with the current care arrangements from the perspective of children and families, is that a cookie cutter approach does not consider the nuances of unique visitation rights and blended families. For example, a child might live full-time in one household but have contact with two other households, and such a shared care and contact arrangement involves three bubbles. Or in the case of blended families, a child might move between two households and in each of those households there might be other children who move between that household and another – meaning the child would have contact with people from at least five other bubbles.
“Adding to the difficulty is whether children should still move between bubbles if a person in one of the bubbles is an ‘essential worker’ or a ‘vulnerable person’. In terms of the meaning of ‘vulnerable person’ questions have also been raised around what level of illness justifies a child being retained in one bubble to prevent spread risk to the vulnerable person”
– Greta Melvin and Helen Tyree, Family Lawyers at McWilliam Rennie
Judge Moran stated that the overriding consideration was for parents to make decisions that are in the best interests of their children and parents, and caregivers should discuss if shared custody arrangements would allow COVID-19 to potentially spread without them being aware, and reach an agreement. This may mean the child may stay with one parent or caregiver for the initial four week period.
What approach have parents and caregivers been taking?
It does seem that in general, parents have opted to take a pragmatic approach. Ministry of Justice figures show a 40% reduction in the number of applications filed during level four lockdown.
In the Family Court applications have dropped by 54%,but the proportion of without notice applications rose by 35%. The majority of these applications comprised of domestic violence, guardianship and mental health applications. Looking at the number of applications an indicator, it would seem that the highly anticipated spike in domestic violence related applications did not eventuate. Southland had the largest decrease in applications of 67%, while Wellington indicated the smallest reduction at 25%.
‘Bubble’ tested in a family court
When the court was required to make decision concerning care arrangements, it too applied the advice from the Ministry of Justice and Judge Moran in the context of the particular child’s existing arrangements. Vickers v Gamble [2020] NZFC 2377 was one Wellington Family Court case decided during alert-level four.
There was an interim parenting order providing for shared care on a 2-2-5-5 basis and the parties were in the process of seeing if they could reach agreement about the shape of a final order. When lockdown occurred, the mother indicated to the father that she would retain the child during the period of the lockdown. The father subsequently applied without notice to enforce the current order.
The mother’s basis for retaining the child was that a member of her household had been in contact with someone who had contracted the virus and so was being tested. At the time of the hearing the test came back with a negative result. The mother also raised issue with the father being an essential worker, her own medical condition, and that a member of her household has a respiratory condition.
In applying the advice from the Ministry of Health and her Honour Judge Moran, His Honour Judge Black said on the face of it there was no issue with the child moving between the two households unless someone in either home is unwell. Judge Black went on to determine the meaning of ‘unwell’ stating that “’Unwell’ means actively unwell with some sort of respiratory illness, as I understand it, not just particularly susceptible.”
His Honour questioned that if the mother, or a member of her household, was at a particular risk because of their health, why should it be that the child spends a month in her care rather than the fathers? His Honour considered that it was in the child’s welfare and best interests to have an ongoing relationship with both parents and that it was not appropriate for the child’s contact to be restricted with either parent for four weeks, unless absolutely unavoidable.
The Judge considered that while the father was an essential worker and his work had strict precautionary measures in place his work could not eliminate risk, but said that his work does not create an unacceptable level of risk.
His Honour was persuaded that the shared care arrangement should continue and that the mother had breached the order.
However, overall it seems as though the parents of separated children, like the rest of New Zealand, accepted the difficulty of the lockdown situation for everyone, and took a reasonable and pragmatic approach to the situation. Following the lifting of the Level four lockdown, care arrangements have since returned to their pre-lockdown situation.
Only time will tell the impact of the COVID-19 pandemic and related economic effects have on the families of New Zealand.
