Unmasked! Family Law and COVID-19
We’re sharing our expertise by providing answers to some of the most common questions about family law in the era of Covid-19.
Are the Family Law Courts still open?
Yes – as at 9 April 2020 in an update to the profession Chief Justice Alstergren confirmed that Family Court of Australia and Federal Circuit Court of Australia remain open during the COVID-19 pandemic. All Registries have now installed the necessary equipment and software to run hearings via video conference, telephone and where absolutely necessary in person. A digital court file will soon be up and running.
That said, court time is a scarcely sought after resource at the best of times and parties and their lawyers are encouraged to work together to minimise issues in dispute to free up time for the most urgent of cases, as these cases will obtain priority listings, as will those which are best suited to being dealt with via written submissions and/or shortened hearings.
In all likelihood, this means there may be further delays in hearing complex financial disputes or parenting trials where the limitations of a video hearing cannot be overcome.
I’ve made the decision to end my relationship and I want to move on. Can I resolve my family law matter now or do I need to wait until this is over?
At Pearson Emerson we continue to assist new clients, even in the midst of the pandemic. At a time like this it is important to have a calm and collected family lawyer guide and advise you.
There is no reason you can’t agree upon parenting arrangements and/or a property settlement now, and lawyers and mediators remain open (for the most part via video conferencing and telephone) and willing to advise upon and draft settlement documents.
Having said that, the first step in any property settlement is to identify and value the asset pool and depending upon the structure of your assets and liabilities, it may be difficult to accurately value certain assets right now. For example, how do you value commercial property at a time when many tenants are not paying rent, or businesses when business valuations are often based upon a forecast of future profits. This shouldn’t stop parties from engaging in preliminary steps, such as financial disclosure, so that they are best placed to resolve matters once the pandemic ends.
Alternative dispute resolution methods, such as mediation, lawyer-assisted negotiation and collaborative law (by video conferencing and/or telephone) are the quickest and most cost effective way for parties to move forward in their lives and obtain closure right now. These methods of resolving a dispute are also uniquely placed to assist parties reach creative outcomes, recognising the risks and uncertainties of the current situation and arriving at settlements which best meet both parties’ needs.
Arbitration is being touted in some circles as being the answer to court delays - but one wonders how an arbitration is any better placed to proceed than a court case right now. The same issues as to valuation will of course apply, and parenting cases cannot be determined by an arbitrator.
Is my child going to his/her other parent’s home a reasonable excuse for leaving the house?
In New South Wales the Public Health (COVID-19 restrictions on Gathering and Movement) Order 2020 states persons in NSW must not leave their place of residence unless they have a reasonable excuse for doing so. Thankfully, one of the 16 reasonable excuses is to “continue existing arrangements for access to, and contact between, parents and children for children who do not live in the same household as their parents or one of their parents”.
It may be helpful to carry copies of court orders and/or parenting plans with you when travelling between homes to avoid an over-zealous police officer handing out a fine.
It’s also important to document any variations or changes to the ‘existing arrangements’ in writing, whether by text message or email.
I have Orders for my child to spend supervised time with the other parent – what happens now?
Supervision is only ordered in a small proportion of cases where there is a perceived risk to the child in one party’s care. Usually this is a risk of violence and/or neglect but can be due to other matters, such as risk of substance abuse whilst caring for the child.
The first thing to consider is whether the risk to the children can be alleviated in some other way. For example, if a grandparent usually supervises the time, and COVID-19 has them isolating at home is there another younger alternative supervisor? If the issue is alcohol abuse would a breathalyser test at the start and end of contact sessions administered by the parties alleviate that risk?
If these are not options due the circumstances of your case, then a number of supervised contact providers are now providing online supervised contact sessions. Alternatively parties may feel comfortable facilitating video/telephone time with the other parent themselves.
I can’t afford to pay my maintenance and/or child support. What do I do?
If you have a child support assessment your first point of call is to contact Services Australia – Child Support and advise them of your change of income. Given there are long queues at Centrelink (both in person and on the telephone) the easiest way to do this is via your MyGov account – Child Support Services Online account.
If you have court orders for maintenance speak to your lawyer about your individual circumstances however under the Family Law Act you may be able to apply to suspend or modify the Order pursuant to section 83 (for married couples) or 90SI (for de facto’s) of the Family Law Act due to the change in your circumstances.
Court action is expensive and may outweigh the benefits if these changes are short term. Therefore parties are encouraged to speak openly and frankly with the other party/parent about what can realistically be afforded at this time and encouraged to reach a compromise.
Your lawyer can assist you to document any variation to your agreement/orders and ensure it is binding.
Can parties who entered into a financial settlement in the months leading up to the pandemic re-open their cases to take account of these new circumstances?
A property adjustment Order made by the Family Law Courts or a settlement document in a Financial Agreement is usually final.
If a Judge determined your case – an appeal can be made but usually has to be filed within 28 days. If you settled by consent, and a Registrar made your Order you have 7 days to withdraw your consent.
But what happens if circumstances change after the time to appeal or withdraw consent has passed?
In general terms parties have the right to have consent Orders varied or set aside only in the limited circumstances set out in s79A of the Family Law Act (C’th). This can happen by consent if both parties agree that the new circumstances call for a change to their settlement. It can also happen on the application of only one of the parties if the court is satisfied that there has been a miscarriage of justice, including by reason of ‘any other circumstance’.
The relief under section 79A is discretionary, and until cases are decided we will not know the court’s approach – but in these unchartered waters of financial hardship there may be cases where it is a real possibility.
Family lawyers may well be giving thought at this difficult time to whether future binding financial agreements should contain a ‘force majeure clause’, which seeks to deal with the impact on financial agreements of events which are out of the control of the contracting party.
Can I apply to vary my parenting Order?
Parenting Orders can be varied by the courts upon application by either party.
If you are applying to vary final orders you may need to show there has been a change in circumstances. Any proposed order will also have to be in the best interest of the child.
You will need to obtain a s60I certificate first showing you attempted to resolve the dispute outside of court.
Guidance can perhaps be taken from our Commonwealth contemporaries who are few weeks ahead of us in fighting this virus, including the UK and Canada. In Ribeiro v Wright, a case from the Superior Court of Justice, Family Court Hamilton in Canada determined on 24 March 2020 a mother was denied an urgent listing of her application to vary parenting orders to reduce the child’s time with the other parent due to her views that the child should not leave the home to visit his father because of COVID-19.
In the United Kingdom, Sir Andrew McFarlane President of the family Division and Head of Family Justice on 24 March 2020 made it clear that where COVID-19 restrictions cause the letter of a court order to be varied, the spirit of the Order should nevertheless be delivered by making a safe alternative arrangement for the child/children.
