COVID-19 Implications on Family Law Matters

Kristen Mitchell-Scott, Solicitor at Mitchells Solicitors, outlines briefly the implications that the ongoing situation with COVID-19 has on family law matters in particular. She provides a summary of the key points from a recent statement published by the Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia.

The global impact of the novel coronavirus (COVID-19) pandemic has been devastating. Business have shut their doors, airlines have dramatically reduced their flights and social gatherings have been cancelled. There has also been a significant impact on the family unit and, particularly, those that have their parenting arrangements subject to court orders.

The Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia, the Honourable Will Alstergren recently published a statement regarding the implications of COVID-19 on Family Law matters. The key points from this statement are:

1. The Family Court and Federal Circuit Courts are still open and willing to assist families who are facing new challenges and those who are still working to find a solution.
2. Parents must continue to act in the best interests of the child/children. This is a core principle codified in section 60CC Family Law Act 1975 (Cth) which remains the best way for judges to determine what parenting arrangements are going to work. This also extends to ensuring that all current day-to-day parenting arrangements are carried out with the child/children’s health and safety of paramount concern. Accordingly, all parties are expected to continue to comply with Court orders.
3. Given the many closures of businesses offering family-oriented activities, including contact centres, there may be instances where parents cannot strictly follow the Court orders. Accordingly:
   1. If it is safe for the parents to speak with each other about potential changes to the current orders to continue time with the child/children to be facilitated, then they should do so – the aim being for those conversations to be conducted respectfully and practically.
   2. If an agreement can be reached as to changes to the arrangements, then this should be communicated between the parties in writing via email, text message or WhatsApp. This will ensure that, if there are upcoming Court hearings scheduled, the Court will be able to see the agreement reached between the parties and may take that into consideration for the future orders.
   3. If an agreement cannot be reached initially, it would be beneficial to obtain legal advice. The solicitors can then negotiate (on each party’s instructions) with the aim of reaching an agreement through the form of Consent Orders. These Orders can be electronically filed in the Court and will be heard by a Registrar as soon as soon as possible. More often than not, the Registrar does not require the virtual or physical attendance of the parties.
   4. If there is no agreement, even after obtaining legal advice, then:
      1. As a priority, the child/children’s safety must be safeguarded. Further, during the time of disagreement over parenting arrangements, each party should ensure that the other continues to be able to contact the children, as is standard in current parenting arrangements i.e., via video chat (such as Skype or Facetime), social media or, if necessary, telephone.
      2. Each parent must continue to be reasonable. Either being reasonable, or having a reasonable excuse for non-compliance with the present Court Orders, is a matter the Court will consider under s 70NAE Family Law Act1975 (Cth).
      3. An Application for Contravention of the Orders should not be rushed into. Rather, if a parent feels that this has become necessary, they should seek legal advice.
      4. In the event that physical safety of the child/children and/or the parent becomes a concern, then the relevant person should contact their local police or seek advice from a medical professional if necessary.

Where possible, all court appearances are being conducted telephonically. Face-to-face appearances in Court are now considered exceptional circumstances. If this was necessary, then social distancing would apply and the Court’s new Face-to-Face protocol would come into effect.

Kristen Mitchell-Scott holds dual degrees in Bachelor of Laws (Honours) and Bachelor of Arts, majoring in Japanese and Criminology from the University of Queensland, and a Graduate Diploma in Legal Practice from the College of Law. She will commence her Master of Applied Law (Family Law) at the College of Law in 2020. Contact Kristen via email, phone (07) 3373 3633 or LinkedIn