How COVID-19 will impact your family law matter March 26, 2020

If you have a past or present family law matter, the COVID-19 pandemic has raised a number of concerns which may affect you

On 24 March 2020, Prime Minister Scott Morrison announced the closure of large sections of Australian society in an effort to combat the spread of COVID-19. They are Stage 2 restrictions. The following day, Victorian Premier Daniel Andrews released a statement in which he indicated that Stage 3 restrictions will follow.

Court orders and your family law matter

Court orders must be followed and may only be varied by agreement between parties.

In the event that orders are not practicable due to COVID-19, you and your former partner should communicate with one another to resolve any issues, and in circumstances where this is not possible (for example, due to an Intervention Order), you should communicate through your lawyers.

How COVID-19 affects parenting matters

You shouldn’t treat COVID-19 as an opportunity to disobey court orders and seek to increase time with your child/ren. If the parent does withhold the child/ren from you, we strongly recommend that you record the dates and times in order to request make-up time at a later date.

It is imperative that parties act in the best interests of the child/ren, and parties are expected to facilitate time with each parent pursuant to parenting orders where it is sensible and reasonable to do so. In the event that contact with one parent is not possible, parties should ensure that that parent continues to have contact with the child/ren such as by telephone, videoconferencing or social media.

We encourage you to work with your former partner during this time. If parties are able to reach an agreement with regard to varied parenting arrangements, this agreement should be in writing (whether by way of email, text message or online communication applications).  In the event that communicating with your former partner becomes untenable, you should contact us about your family law matter as soon as possible.

We recommend that you read the article Ten tips for managing parenting in a pandemic .

School holidays and your family law matter

Victorian school holidays starting earlier does not affect the operation of existing parenting orders. Any reference to school holidays is a reference to the specific periods that were in place at the time the orders were made. Therefore, the duration of the Term One school holiday period is 28 March 2020 to 13 April 2020.

Changeover and COVID-19 restrictions

The closure of Victorian schools and other public locations does not prevent changeover still occurring at those locations during Stage 2 restrictions.

In the event that Stage 3 restrictions are implemented in Victoria, it is likely that changeovers will be affected. There may be situations where strict compliance with court orders is not possible. In such cases, parties are encouraged to communicate with one another in respect of their ability to comply with orders, and attempt to find a practical solution.

It is unclear what those restrictions would be at this time, however the United Kingdom introduced a policy allowing people to leave the house to provide care or to help a vulnerable person during Stage 3 restrictions. This policy confirms that separated parents are permitted to move children under the age of 18 between the respective parents’ houses, and it is likely that Australia would implement a similar policy.

In relation to border closures within Australia, exemptions have been made to permit travellers to enter the states and territories without the need to self-isolate for two weeks, however these exemptions vary between states and territories and largely apply to essential services like heath and emergency, freight and aviation, and defence and policing.

In Australian States and Territories, the following exemptions apply (or may apply). Parties should make enquiries about whether they are required to return to their home State or Territory before entering another State or Territory.

South Australian exemptions

Travellers of a relative or caregiver of a dependant person will be exempt. It is possible that parties travelling interstate for changeover of child/ren under the age of 18 may fall into this exempt category.

Western Australian exemptions

Exemptions will be granted on compassionate grounds. It is unclear whether this extends to changeover of children under the age of 18, and parties should make enquiries with the WA government.

Queensland exemptions

Exemptions will be granted for court orders and on compassionate grounds. It follows that court ordered interstate changeovers will be permitted. It’s unclear whether the compassionate ground extends to changeover of children under the age of 18, and parties should make enquiries with the Queensland government.

Tasmanian exemptions

Only essential services are exempt.

Northern Territory exemptions

Only essential services are exempt.

Breach and contravention applications

If you are considering breaching court orders, we strongly urge you to seek independent legal advice from us.  COVID-19 is unprecedented.  It’s difficult to predict how a court might react to a breach at this time.

The same applies to the decision to file a contravention application. The court permits the contravention of orders where there is a reasonable excuse for doing so. A reasonable excuse is one where the contravention is necessary to protect the health or safety of a person (including you or your children) and where the contravention does not last longer than necessary in order to protect health and safety.

It is possible that you may be able to establish this ground more readily, and that the court may be more lenient in its interpretation of reasonable excuse in light of COVID-19.

Family Court and Federal Circuit Court

The Family Court and Federal Circuit Court are regularly releasing updates and directions to lawyers as they attempt to navigate COVID-19.

Both courts have implemented the following measures thus far:

1. All courtrooms will be limited to a maximum of 8 people (excluding the Judge or Registrar and court staff) and matters will be listed for no more than 1.5 hours.
2. All sole divorce applications where there are children under the age of 18 will require attendance by telephone. If parties or lawyers must appear in person, rather than by telephone, then the face-to-face protocol will apply. The face-to-face protocol requires that all face-to-face encounters are conducted in accordance with social distancing.
3. All directions hearings and mentions will be done by telephone.
4. All discrete property lists, PPP500 lists and contravention lists will be conducted by telephone.
5. All Conciliation Conferences, Case Assessment Conferences and Alternative Dispute Resolution (ADR) events will be conducted by telephone or video. Final defended cases that are assessed to be of a lower priority may be sent to an ADR event, and the trial otherwise adjourned to a date to be advised.
6. All interim hearings will be required to attend by telephone to the greatest extent possible. If parties or lawyers request to appear in person, they must contact the Senior Registrar’s chambers by email and provide a brief outline as to why the matter is urgent and should remain listed for a face-to-face hearing.
7. All Child Dispute Conferences (CDCs) will be conducted by telephone or video.
8. All existing orders for Child Inclusive Conferences (CICs) will, subject to the views of the Judge or Senior Registrar, be serviced as CDCs. Judges are strongly encouraged to order CDCs rather than CICs given the face-to-face contact component, and it is expected that CICs will be ordered only where there is an urgent requirement for a Family Consultant to see the children. Where CICs are ordered, the face-to-face protocol will apply.
9. All Child Responsive Programs will be conducted by telephone, except meetings with children which will be conducted consistent with the face-to-face protocol.
10. All family report interviews will be conducted by telephone or video, except interviews with children which will be conducted consistent with the face-to-face protocol.

Chief Justice Alstergren of the Family Court and Federal Circuit Court has reassured the public that the courts will remain open during COVID-19.

How we can help

We are aware that this is a difficult time for many Victorians, with the effects of COVID-19 evident across property, superannuation and businesses.

If you are concerned about the effect of COVID-19 on your family law matter, contact us to discuss your individual circumstances.

We will continue to provide updates on COVID-19 as the situation develops.

DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can get from marshalls+dent+wilmoth and other relevant experts.