Covid-19 and Co-parenting Family Law Matters during a pandemic - A Fact Sheet

As a party in family law matters you may be understandably concerned about the impacts of the COVID-19 pandemic on your parenting matters.

The COVID-19 pandemic has had implications on family law matters, including those matters with existing Orders and agreements, as well as matters currently being negotiated or litigated.

Stage 3 Restrictions

With Victorian Premier, Daniel Andrews now implementing Stage 3 restrictions it is important to consider the ramifications these restrictions have on family law matters.

So what do the Stage 3 restrictions mean for parties of family law Orders? Premier Andrews has declared a State of Emergency, under section 200 of the Public Health and Wellbeing Act (VIC). Using the emergency powers, there is now a restriction on the movement of persons within the emergency area (currently the whole of the state of Victoria). The “Stay At Home Directions” require everyone in Victoria to limit their interactions with others by:

  • restricting the circumstances in which they may leave the premises where they ordinarily reside; and
  • placing restrictions on gatherings.

The Directions include that you may only leave your “ordinary place of residence” in certain specified circumstances. Shared care parenting arrangements are covered by clause 5(5) of the Directions which provides:

“If a person has more than one premises at which they ordinarily reside, including a child under a shared parenting arrangement, each such premises is taken to be the person’s ordinary place of residence for the stay at home period”

So, children who are the subject of a Parenting Plan or an Agreement or Court Order have two “ordinary places of residence”.

Shared care arrangements are further addressed in the Directions at clause 7(1)(a) which provide that a person may leave their premises to “meet obligations in relation to shared parenting arrangements whether the arrangements are under a court order or otherwise”

Do I still have to follow Court Orders?

Yes, Court orders must continue to be followed and can only be varied by agreement between the parties. Parents should still do all they can to comply with any existing Court Orders and Parenting Plans — unless it would put the health of the child or others at risk if you were to do so.

Some complications that may arise could be due to travel restrictions, large distances between parties’ residences, a party or member of a place of residence having possible exposure to COVID-19 and the necessary self-isolation; a member of a child’s household being considered a vulnerable person; changeover locations being unsuitable; supervision requirements being impractical; contact centres, schools and public places being unavailable; and social distancing requirements.

If your family law Orders are not practicable or cannot be strictly complied with, Chief Justice of the Family Court of Australia and Federal Circuit Court of Australia, his Honour Alstergren (in a press release of 26 March 2020) has encouraged all parties to attempt to reach alternative arrangements between themselves and/or their lawyers. Chief Justice Altergren emphasises that parties should consider practical solutions “sensibly and reasonably”

Now is not the time to be using the COVID-19 pandemic as a justification for disregarding Court Orders. The requirement for parties to act in their children’s best interests remains paramount.

Parties are expected to continue to facilitate and encourage their children to spend time with the other parent in accordance with Court Orders. If it is not practical for children to be spending time with another parent in strictly in accordance with Court Orders then parties are encouraged to facilitate alternative means of communication including through telephone calls, video conferences and social media and they should also turn their minds to the option of make up time once the pandemic has passed or restrictions are downgraded.

Any alternative agreements reached should be noted in writing (such as a text message or email).

If parties do not have the capacity to negotiate necessary alternative parenting arrangements between themselves then they should engage a lawyer for advice and representation.

What if my child or I have to self-isolate?

What should happen in the unfortunate event that the someone is directly affected by COVID-19 and self-isolating in the house where the child resides or it becomes necessary for a child to self-isolate whilst spending time at another parent’s household?

In these unprecedented times, there is no guidance as to what should happen in such circumstances. Again, the best interests of the child (including their safety and wellbeing) would remain the paramount consideration. Common sense and collaboration between parents would be essential. It would make sense for a child to remain in one household if they were required to self-isolate for the duration of their isolation period.

It is however acknowledged that many parties are not able to collaborate and negotiate in such circumstances and lawyers could assist in obtaining practical results that are in the best interests of the child at that time.

If negotiations between parties with or without the assistance of lawyers are not successful, there is still the option to initiate Court proceedings. The requirement for parties to attend compulsory family dispute resolution prior to filing court proceedings remains in place (with the usual exceptions, such as due to urgency or in matters that involve family violence). Mediations (with or without Counsel) can still occur with the parties using video-conferencing.

Are the Family Courts still operating?

The Melbourne Registry of both the Family Court of Australia and the Federal Circuit Court of Australia continue to operate. His Honour, Chief Justice Alstergren has emphasised that the Courts will do all the can to continue to function and adapt their procedures as required to ensure access to justice.

The default position is that hearings will be conducted remotely. Where appropriate, Judges are also being encouraged to consider matters “on the papers” in Chambers rather than requiring hearings. In urgent matters requiring attendances at Court there are specific procedures introduced by the Courts including restrictions on the number of people being present in a Court room at any time, the prohibition of documents being handed to Judges in proceedings and strict adherence to social distancing requirements. Hearings have also been limited to a maximum of 1.5 hours in duration.

Child Inclusive Conferences and Family Report interviews can still occur, with the utilisation of telephone and video-conferencing and where face-to-face interviews are conducted with children, they are done so with strict adherence to the social distancing practices.

Further procedures have been implemented in relation to viewing necessary subpoenaed material and the filing of documents.

Contravention applications

Whilst the Courts continue to provide access to justice, parties can file all proceedings, including Contravention Applications.

What will constitute a “reasonable excuse” for failing to abide by Court Orders in the current context is unclear. One can speculate that the Court may be more lenient however it really is not possible to know how these matters will be treated. As always, the findings would be made following the consideration of the facts of each case.

Legal advice is therefore most important in circumstances where a party in failing to comply with Court Orders.

How OFRM can assist you

In the current COVID-19 pandemic, it is important to remember the principle that parties are to make decisions that are in the children’s best interests which includes the children’s safety and well-being and the need to balance that with any risk associated with the pandemic. In these unusual times, it is imperative more than ever for parties to attempt to work together (with or without the assistance of lawyers) to negotiate any alternative arrangements that need to be made.

In these uncertain times we acknowledge that you may need clarifications around your own unique circumstances. All of our family lawyers are working from home and contactable via telephone, email and video-conferencing, including Zoom and FaceTime.

You can be assured that our lawyers are keeping up to date with all developments of COVID-19, including the responses of both the State and Federal Governments and how any restrictions continue to impact family law matters. Our lawyers are also keeping up to date with all practice notes and updates from the Courts in relation to any changes to their procedures.

Please do not hesitate to contact one of our family lawyers if you require any assistance with your family law matters in these challenging times. You can find contact details for our family lawyers here https://ofrm.com.au/our-team

Other resources that you may find useful at this time:

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