When in all this panic, little Marco is ill – what do you do?

Currently our news feeds are being flooded with the latest information and reports about Covid-19 (“Coronavirus”). We are being told to be on high alert and to monitor whether we or any family members (including children) suddenly present with any symptoms of the Coronavirus.

The current situation can highlight the problems often experienced by separated parents and how the medical needs of their children are dealt with when they both disagree.

For example, say Marco’s parents have recently separated on a final basis and are amicable. Bob and Leanne have reached an agreement that Marco will live with each of them on a week about basis and given their good relationship, they have not applied for Court Orders formalising this agreement.

Short-term medical issues

Bob collects Marco from school one day and notices that Marco has a fever and a cough. He sends Leanne a text message asking whether Marco had any symptoms in the morning and she responds saying that whilst Marco had a cough and a slight fever, she thinks that he will be fine in a couple of days and that he doesn’t need to see a doctor.

Given the media reports, Bob is more concerned than Leanne and tells her that he will take Marco to the next available appointment with the doctor tomorrow after school. Leanne tells Bob that Marco does not need to go to the doctor and she does not want him to.

Can Bob take Marco to the doctor? Does Leanne need to agree before Bob can take Marco to the doctor?

As there are no Court Orders in place to say otherwise, it is presumed at law that Bob and Leanne have equal shared parental responsibility for Marco. This means that they both have to make joint long-term decisions for Marco in relation to his schooling, religion, living arrangements and medical issues. It is important to note that equal shared parental responsibility does not relate to day to day decisions.

This means that Bob can take Marco to the doctor despite Leanne’s protestations as it is a short-term problem that he feels requires medical attention.

Long-term medical issues

Consider this though: what happens if Bob and Leanne cannot agree about Marco’s ongoing long-term medical treatment? What if, despite medical advice, Leanne refuses to allow Marco to receive the treatment? Can Bob give his consent so that the treatment can start anyway?

This would be a more complicated situation. As it is a long-term medical issue, Bob and Leanne need to be in agreement as to how Marco’s medical issue will be treated. If Leanne continues to refuse the medical treatment notwithstanding medical advice and Bob is concerned that Marco’s health is suffering, he may need to file an urgent application seeking that he have sole parental responsibility for Marco’s health. This application would need to be made prior to Marco commencing the treatment and hence the urgency. An order that Bob have sole parental responsibility in relation to medical issue will then allow Bob to give his consent to Marco receiving the treatment and it can commence.

David De Alwis and Elyse Byrne, of Hope Earle’s family law team are experienced at dealing with all matters surrounding parental responsibility and can quickly and efficiently guide you through the process. Give them a call on 9600 3330 or 0422 432 692 to your case.