With any guardianship dispute, the first step for many of these disagreements is to resolve the matter informally through agreement and mediation. A last resort is to apply to the Family Court for an Order to Settle a Dispute Between Guardians, which involves significant time and money.
Children's views
Children's views have been put under the spotlight on this matter. In matters that affect the child, the Family Court must give that child an opportunity to be heard. As children get older and develop in maturity their views will be given more weight. In doing so, the Court will consider whether the children truly hold their views and understand the consequences of their decisions.
The Court has taken children's views into account in a number of Covid-19 related cases. An interesting consideration in a recent Bay of Plenty case involved a guardianship dispute on Covid-19 vaccinations. The judge ruled that the child should be free to be exposed to a plurality of views so he can make his own decision about which values and beliefs he chooses to live by.
In New Zealand, consent to medical decisions can be given from the age of 16 years. Yet if a child over 12 years old has the capacity to consent, then they can choose or refuse to get a vaccine.
This is certainly a new and developing area of the law. Children aged 12 to 15 have been allowed the vaccine since September 2021. The vaccine has been available to children aged 5 to 11 only from January 17 this year. This issue is yet to be tested in the High Court to my knowledge.
That said, the dominant consideration in care of children issues is clear, even in Covid-19 related cases. Following Section 4 of the Care of Children Act, the Court must make decisions that are in the welfare and best interests of the children, which may look different from child to child in their particular circumstances.
Specialist reports
Specialist reports play an important role in the Family Court in understanding the child and their cultural, medical, psychiatric and psychological background. These reports inform the Court to make stronger decisions in the best interests of the child.
However, I have seen psychologist reports on children face increasing delays since the emergence of Covid-19. In the Auckland region, we have had instances where it has taken more than a year for the allocation of a report to a psychologist, and a further six months for the report to become available.
There is a shortage of child psychologists who write reports for the Court, and this cannot be in the best interests of the child. A year can be very significant in a young child's life.
Shared care
The spotlight has been put on shared care over the previous two years. Co-parenting during a pandemic is difficult, and even more so when parents have different opinions on the seriousness of the pandemic.
The government and the courts have made it clear that the Covid-19 pandemic is not an opportunity for parents to change established care arrangements unilaterally without cause.
If a parent already has a shared care arrangement and lives in the same community as the other parent, they are usually able to continue their existing shared care arrangement.
Contact is encouraged as long as the arrangement does not compromise the health of either family or the wider community. Among other factors, parents still need to consider anyone in the household who is an essential worker, the health of family members over the age of 70, or those who have pre-existing conditions.
Maintaining regular contact is not always easy with Covid-19 restrictions and general uncertainty. If a parent does not have an existing care arrangement or there are complicating factors, such as a requirement for supervised contact or the existence of a Protection Order, many parents opt for indirect contact instead. It is important for children that they still have time with the other parent, even if it is through a regular phone or video call.
Separation
It is a common assumption that Covid-19 and its effect on families would increase the number of separations. I have not personally seen this in my practice. I have, however, seen a strong increase in the number of pre-separation consultations. These involve people considering separation without making the final decision.
Although many New Zealanders are homeowners there is sometimes no alternative place for one party to live in during the separation process. The financial cost of separation is high, and the thought of renting a place with the rising cost of living in the aftermath of Covid-19 has not been an attractive prospect.
Parents who are thinking of separating often seek mediation. The vast majority of those mediations have occurred remotely over Zoom in the previous two years. When resolving a dispute involving family members, I consider that face-to-face contact is essential. I do not think that sorting your matter out via a virtual screen is equally effective or desirable.
While we are used to Zoom and other electronic means of communication, there is nothing like being in the same room in the same place to discuss difficult matters, heal old wounds, compromise and reconciliate. These are all vital elements of mediation.
Conclusion
It is important to ensure that children are not caught in the middle of any conflict or stressful discussions. Watching parents fight can take a big toll on children and cause them distress. Parents are encouraged to take ownership of any dispute, equip themselves with knowledge on any legal implications, and attempt to work through it themselves in an honest conversation. Every co-parenting relationship requires communication, cooperation and compromise – all the more so in challenging circumstances.
