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
- Family Law Matters – Not in court
- Family Law Matters – In Court
- Domestic Violence Matters
- Child Custody Issues
- Parenting Orders
- Property Orders
- Breaching Orders
- State Border Control
- Custody Issues FAQ From the Facebook Live
- 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:-
- delays in the hearing of their matter;
- adhering to social distancing rules; and/or
- 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:-
- If the matter is urgent, for example:-
- in parenting situations, where recovery of children is sought or
parental alienation is alleged to have occurred; or
- in financial matters, where urgent orders are required; and
- 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:-
- Appear by telephone; or
- Request that the matter not proceed by phone because it is either:-
- impractical to do so; or
- Request that the matter not proceed by phone because it is either:-
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:-
- It is not practicable for the parties to appear by phone; and
- 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:-
- The Applicant can appear by telephone;
- 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:-
- Potential delay, if the matter is not considered urgent by the judge;
- A forced referral to an alternative dispute resolution process, such as mediation or a conciliation conference, rather than continuing to a final hearing;
- 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:
- Do what is in the best interest of the child, which is in most cases facilitating a relationship with both parents
- Not try to enforce the government guidelines on the other parent but advise them of them.
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 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.
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.