How is family law reacting to COVID-19?

The recent pandemic COVID-19 will have an impact across all facets of Australian society, including participants and solicitors in Family Law and domestic violence matters.  The level of the impact, however, varies and ranges from minimal impact where parties have already sought Consent Orders, made an application for divorce or are not in Court, to a higher level of impact for those who have recently commenced proceedings before the Court, in both Family Law and domestic violence matters, and are waiting to be heard.

The family court has released a FAQ here.

We recently did a Facebook live event FAQ with Tayla Mojidi, a seasoned family lawyer answering questions.

A full link to this video is here.

COV 19 Family Law Issues

  1. Family Law Matters – Not in court
  2. Family Law Matters – In Court
  3. Domestic Violence Matters
  4. Child Custody Issues
  5. Parenting Orders
  6. Property Orders
  7. Breaching Orders
  8. State Border Control
  9. Custody Issues FAQ From the Facebook Live
  10. Property Settlement Issue FAQ from the Facebook Live

Family Law matters – Not in Court

Where parties are not in court, for example where parties have applied for a Family Law Consent Order and submitted the document to the Court registry or online, the matter will proceed uninterrupted.  The Court staff who approve these documents will continue to work as normal.

Where parties have made an application for divorce, jointly and where there is no child under 18, or they have not been separated living under the one roof, the divorce order will be made in chambers by a Registrar as normal.  If parties are required to attend a divorce hearing for any reason, there attendance can occur via telephone such that the divorce hearing can proceed on the same day and otherwise as scheduled without delay.

Family Law matters – In Court

In Family Law matters, participants who have recently filed proceedings in the Federal Circuit Court or Family Court may be impacted by:-

  1. delays in the hearing of their matter;
  2. adhering to social distancing rules; and/or
  3. attendance at Court via phone rather than attendance in person at Court.

In the vast majority of cases, parties are allowed to appear by phone so there is no delay.

The following is a summary of how the Federal Circuit Court and Family Court are managing participants who have recently filed proceedings:-

  1. If the matter is urgent, for example:-
  1. in parenting situations, where recovery of children is sought or parental alienation is alleged to have occurred;  or
    1. in financial matters, where urgent orders are required;  and
    1. a response and/or Notice of Address for Service for the Respondent has been filed,

then the matter will still proceed albeit with parties appearing over the telephone instead of in person where possible.

Parties can also request a face-to-face return of the matter and set out why this is required, however ordinarily, the majority of matters could be dealt with via phone.

  • If the matter is non-urgent, participants can:-
  1. Appear by telephone;  or
    1. Request that the matter not proceed by phone because it is either:-
      1. impractical to do so; or
      1. urgent,

and request a face-to-face hearing accordingly,

whereupon, the matter will proceed as scheduled either by phone or in person.

  • If the matter is non-urgent and:-
  1. It is not practicable for the parties to appear by phone;  and
    1. The matter is non-urgent,

the Court may administratively adjourn the matter to a later date, including making an order for mediation or a conciliation conference if appropriate.

  • If there is no Notice of Address for Service and/or Response filed for a Respondent, either in an urgent or non-urgent matter, then:-
  1. The Applicant can appear by telephone;  and
    1. The Respondent will need to appear in person as per the usual course of proceeding,

meaning there will not be any delay for the participants.

In any event, participants will not be impacted by delay at all if agreement is reached, as the parties can still submit proposed Orders by consent to be made in Chambers.

If a person is awaiting a final hearing in the Federal Circuit Court or Family Court, they may be impacted by:-

  1. Potential delay, if the matter is not considered urgent by the judge;
  2. A forced referral to an alternative dispute resolution process, such as mediation or a conciliation conference, rather than continuing to a final hearing;
  3. If the final hearing remains scheduled, participating in the trial conducted partly by phone and adhering to appropriate social distancing rules within the Court room.

In the vast majority of Family Law cases, participants will not be impacted by COVID-19 and the telephone attendance will suffice to continue their case without impact or delay.

Domestic violence and coronavirus

In domestic violence matters, the Magistrates Court has put into place similar guidelines including for social distancing within the Courtroom, a limit on the number of persons allowed in the Courtroom at any one time and telephone attendance where available.  Similarly, in Family Law matters, Magistrates Courts are continuing to work through their lists of matters in any practical way possible, to avoid delays to participants and prevent further backlog.

Domestic violence matters are proceeding generally as scheduled, unless there is no urgency and the matter can be adjourned, for example if there is a temporary order in place already, the matter can be adjourned until a later date for final hearing. 

If you are concerned about COVID-19 having an impact on your Family Law or domestic violence matter, please let us know so that we can assist you.

Child Custody Issues

It’s important to remember that we should aim to follow government guidelines. These guidelines are constantly evolving and changing, therefore, the family court can’t make a clear ruling. However, parties should bear in mind that if they are having issues with child custody they should:

  1. Do what is in the best interest of the child, which is in most cases facilitating a relationship with both parents
  2. Not try to enforce the government guidelines on the other parent but advise them of them.

Parenting Orders

If parties have parenting orders in place they should remain in place unless the parties agree otherwise. The orders should be followed as much as reasonably practical without breaching government guidelines or the order. This means care and custody arrangements should remain the same and that a child of both households is considered to be part of one household together.

Property Orders

Property orders remain unchanged if parties wish to change the timing of sales or splitting of supers they should do so by agreement and with the advice of a financial advisor, otherwise the orders stand.

Breaching Orders

If parties are not following court orders they may be in breach of an order. If you believe your spouse is breaching the order we advise you to get legal advice before filing with the court for a breach. If the child is in immediate harm please act quickly, contact police, child safety and a lawyer. If the child is not in immediate harm, please seek legal advice. Filing for a breach may not be cost-effective in all circumstances.

State Border Control

If you wish to cross state borders because of family court orders or parenting plans you can do so in most states and territories. You will in some states need to apply online for a compassionate pass.

Child Custody and Coronavirus FAQ

What about child support for parties who have lost jobs and parties that can’t work because they are vulnerable?

Parties should reasonably and practically follow the advice of the Child Support Agency. If you have lost your job you can also apply for other Centrelink benefits. If your former spouse has lost their job you can additionally contact the child support agency to find out the next steps.

How do I get a safety plan in place to make sure the opposite party keeps the kids safe and agrees to keep them isolated?

Safety plans are not currently a recognised document. However, you can agree in the form of a parenting plan that could make provisions for the coronavirus that acts as a safety plan.

 If you have court orders in place you can also ask the other party to come to an agreement around the coronavirus restrictions.

If you and the other party agree you can contact a lawyer to do a parenting plan to vary any current agreements or family court orders.

I pay for child care so I can study, but the child’s father wants to pull them out of child care but the child care centre is still open, do I have to pull them out? I can’t study.

You should follow all current government guidelines. If the child care centre is open so that you can continue to do essential study than you do not have to pull them out if it is not in the child’s best interest.

However, you should try to come to an agreement with the other parent and perhaps discuss alternative arrangements for care.

What if you and your child live with a vulnerable person? Can you withhold the child from another parent as they aren’t taking the virus seriously?

This is an ongoing concern and unfortunately, your obligations are to the child and their interest. You could if practical try to isolate the vulnerable person from the child but if the child is not at risk than you should follow any court orders or agreements.

What about if someone is showing coronavirus symptoms? Can they breach court orders without a coronavirus test and withhold for 14 days?

You should ask for evidence that the child or the parent has had a test. If they have not had a test or are refusing to test, then you should contact a family lawyer for further legal advice.

Do you need to self-isolate when travelling interstate per government guidelines if pursuant to family order?

This varies in each state and territory and is changing constantly, therefore, you must follow the advice given to you from your state. If you have a pass in some states you may not need to isolate for 14 days and in other states, you are still required to isolate.

What are my rights if the father of my child breaches court order for the second week of school holidays?

You can file for a breach of a court order at any time if you have appropriate legal advice. However, in some cases, it may not be reasonably practical to file for a breach.

The father of my son is taking him camping. Can I withhold? Note the stay home government order is saying no camping etc?

Unfortunately, you cannot force the other party to comply with government guidelines. You can also not withhold them if they are not complying. If the other party does not comply with government guidelines it may be taken into account in any future parenting proceedings.

Mother has the majority of custody. Father has a son one night every week and Friday-Sunday every fortnight. Father is worried mother will withhold son from him during the Covid-19. Can she legally do this? And if so, can he ask that whatever time he loses with his son that he receives that time with him in the future?

Legally it’s difficult to answer, it depends on numerous factors. If orders are in place then she should follow court orders. If no orders are in place then you should try to as reasonably practical facilitate the relationship and maintain the agreement. If it is not practical maybe parties should consider phone or video chats. Regarding future time a party can try to get more time in the future to make up for the loss of time now.

So if both parties agree to do videocall instead of sending him to the other house while the child is not well, would that be a breach?

It will not be breach if the parties agree to the changes.

Property Settlement and Coronavirus FAQ

What about losing income due to coronavirus? Does that affect my property settlement?

It depends greatly on your case; it is best to talk to a lawyer about whether your future needs will be adjusted. It may be possible for you to be re-employed.

Is now a good time to negotiate property?

Almost any time is a good time to negotiate property. However, in terms of valuations, we should remember that the property pool is considered what is in the property pool at the date the pool is filed with the court. Adjustments can be made for the property after separation.

However just because an asset may be worth more or less in the future it should not deter you from starting negotiations. Remember if you have some control over the asset you can make commercially wise decisions.

Can we get funds early if in a property settlement?

You may be able to try to get funds early in the property settlement, however, you need to negotiate this with the other side. In the current climate, it may be easier to get funds earlier.

Can I still get my consent orders done?

Yes, they are still being processed by the courts and we recommend that you try to get them agreed to and filed sooner rather than later.

Can I still have my superannuation split?

Yes, if you follow all the guidelines in relation to super splitting.

What next?

These are unprecedented times if you have a specific family law issue we encourage you to seek legal advice.

Final 5e82c77734569100160394c7 842559

Luke Cudmore

Principal Family Lawyer at Cudmore Legal Family Lawyers Brisbane Co. Luke is experienced in family law matters ranging from divorce to child custody. He is a skilled negotiator and strategist and fights zealously for his clients family law rights.