Frequently Asked Questions
As the government’s response to the COVID-19 continues to develop and impose more restrictions on individuals and businesses alike, many of our clients have contacted us with questions about how those restrictions are likely to impact upon their family law matter.
In this blog article, we aim to address some of the frequently asked questions we have received from our client’s over the past few weeks, as well as pass on information to our client’s about how their matter in particular may be affected.
Are the Courts still open and/or how will my court date be (procedurally) affected by COVID-19 issues/restrictions?
The Federal Circuit and Family Court of Australia remain open and operational and will continue to assist parties during these uncertain times.
At this stage, most (if not all) procedural hearings are being conducted by telephone, with the Courts contacting parties in advance by email to provide telephone and video-conference details.
The Courts are also conducting Case Assessment Conferences, Conciliation Conferences and mediations through telephone and video-conference facilities.
However, some interim hearings, urgent matters and Trials are still being conducted in Court. It is at the Court’s discretion to determine whether a matter should be heard in person or by other means.
Where a matter is heard face-to-face, there are strict limits on the number of people allowed in the Courtroom at any one time (namely, 8 people) and there are guidelines as to where each person is required to sit to comply with social distancing rules.
Matters that have already been given a court date containing child related and family violence aspects will remain listed. Urgent matters, priority trials and contested hearings will also remain listed.
Non-urgent property only trials may be adjourned, and non-urgent parenting trials may also be adjourned, but this will be determined at the Judge’s discretion. We will keep clients updated in this regard. If you do not hear from us that your court date has been moved, then you can presume your matter is going ahead on the allocated date.
At the current time, the Courts are accepting electronic signatures on Court documents to encourage social distancing and to prevent parties having to attending upon a qualified witness to witness their signature. However, the deponents of the Affidavits (or Financial Statements) will be required to be available by way of video conferencing, telephone or in person at a subsequent court event to swear or affirm that the contents of their Affidavit (or Financial Statement) are true and correct to the best of their knowledge, information and belief.
Please note that the acceptance of electronic signatures only applies during the current COVID-19 pandemic.
Are mediations/family report interviews still occurring and/or how will they be affected by COVID-19 issues/restrictions?
Unless you have been told otherwise, mediations and family report interviews will continue as scheduled, however to protect all parties involved, mediations and family report interviews will most likely take place by telephone and/or video-conferencing.
For mediations, we will discuss and arrange with clients beforehand if it is appropriate for them to be present in our office for the mediation. If this is the case, it is highly likely that the mediator and other party (and their legal representation) will attend the mediation by telephone and/or video conference.
For family report interviews, we will confirm with clients beforehand the arrangements put in place by the individual family report writer.
How will COVID-19 issues/restrictions impact upon my shared parenting arrangements?
During these uncertain times, previously agreed parenting arrangements or Court Orders may be affected and may need to change temporarily.
While the Court acknowledges that it is in the best interests of children to maintain their relationship with both parents, we appreciate that parents also need to take into account the changing circumstances and any health risks associated with facilitating time with the other parent.
Locations of changeovers may close, such as schools or shopping centres. If possible, arrange with the other parent an alternative and agreed changeover location now. If it is safe for both parties and there is an agreement between the parties, consider if changeovers can take place at parents’ homes.
If children are unable to travel interstate to spend time with a parent (i.e. because flights have been cancelled or a State or Territory has applied border restrictions), consider arranging regular Skype/FaceTime calls and rearrange make up time for later in the year.
The most important thing to remember is what is in the best interests of the child. While there are a lot of genuine concerns, the COVID-19 pandemic should not be used as justification for limiting or stopping a child’s time with their parent. If it is necessary, the Court’s will need to later consider whether a parent had a ‘reasonable excuse’ to do so.
We suggest that all parents be sensible and pragmatic about these issues and seek legal advice before limiting, stopping or changing the child’s living arrangements without the consent of the other parent.
We (and the Courts) encourage clients to be flexible and creative in the current circumstances and to work and communicate with the other parent as much as possible in discussing and agreeing on new arrangements.
However, we recommend that any temporary changes be documented in writing by consent where possible, either by text message, email or correspondence through lawyers. However, please always consider obtaining legal advice before signing any documents reflecting agreed changes so as not to inadvertently enter into an open ended Parenting Plan.
Will I be able to travel interstate to spend time with my children despite the COVID-19 restrictions?
Some Australian States and Territories are applying border restrictions in response to the Government’s protocols for non-essential travel.
The Queensland government has clarified that a party is exempt from the requirement to self-isolate for 14 days if that party enters Queensland from interstate to comply with or pursuant to Family Court Orders.
However, this exemption does not apply if a party has travelled to a COVID-19 ‘hotspot’ which is determined by the Chief Health Officer.
This means that unless a parent has travelled to a COVID-19 ‘hotspot’, it is not a ‘reasonable excuse’ to prevent children travelling to Queensland to spend time with a parent.
As the restrictions are changing and developing rapidly, we recommend clients check the restrictions in place for the relevant State or Territory prior to any travel, or refusal to travel.
To keep up to date on the travel restrictions for Queensland, please check the Queensland Government’s website.
To keep up to date on the travel restrictions for each State and Territory, please check the Australian Government’s website.
In the event that you are travelling pursuant to Family Court Orders, when you are crossing any State or Territory border you will be required to provide a copy of your Court Order as evidence of such essential movement to border control personnel.
Please ensure you also carry current photo identification.
Should you or your child be prevented from travelling interstate due to restrictions or lack of Orders permitting such travel, we recommend clients consider arranging regular Skype/FaceTime calls between the child and the absent parent to maintain their relationship.
What should I do if the other parent has a confirmed or suspected case of COVID-19 and there are Family Court Orders in place?
If the other parent has a confirmed case of COVID-19, has a suspected case of COVID-19, has been in close contact with a confirmed case of COVID-19, or has arrived in Australia after midnight on 15 March 2020, that parent is required to self-isolate for 14 days.
The Australian Government also recommends that those living with you must also isolate.
Complying with the Australian Government’s recommendations regarding COVID-19 is paramount, and you may be unable to comply with you Court Orders if a parent (or child) is required to self-isolate.
Should the other parent be required to self-isolate, and your child is in their care, your child will be required to self-isolate with the other parent for 14 days.
Should the other parent be required to self-isolate, and your child is in your care, your child may need to remain in your care until the other parent’s isolation period has ended – however, this should be discussed and agreed upon with the other parent.
The Court expects all parents to act in the best interests of their children, and we ask clients to consider alternative solutions for contact if a child is away from a parent due to self-isolation. Consider increasing telephone or FaceTime calls, or arranging for make up time once the isolation period has ended.
We recommend that any temporary changes be documented in writing by consent where possible, either by text message, email or correspondence through lawyers. However, please always consider obtaining legal advice before signing any documents reflecting agreed changes so as not to inadvertently enter into an open ended Parenting Plan.
We remind parents that the COVID-19 pandemic should not be used as justification for limiting or stopping a child’s time with their parent.
What should I do if the other parent will not facilitate my child’s time with me due to COVID-19 issues?
The answer to this depends on the basis upon which the parent is refusing to facilitate a child’s time.
The Courts expect parents and carers will act in the best interests of children, which includes complying with Court Orders in relation to parenting arrangements, providing it is safe to do so.
A mere concern that a child may be exposed to COVID-19 will likely not be a sufficient reason to fail to comply with a Court Order.
However, if there are, for example, safety concerns that have arisen where one parent, or someone in close contact with that parent, has been exposed to COVID-19, this may restrict the safe movement of a child from one house to another.
Even if strict compliance with orders is not possible, the Court expects that parents will work together in the best interests of their children to formulate a comparable alternative option that is within “the spirit of” or achieves the purpose of the Orders.
In the event a parent is found to have failed to comply with an Order without a ‘reasonable excuse’, a range of penalties may apply.
In the event the other parent will not facilitate a child’s time with you due to COVID-19 issues we recommend you seek specialist family law advice at the earliest available opportunity.
In the event there is no apparent reasonable excuse, and if negotiation or mediation is unsuccessful or inappropriate, you may be required to make an application to the Court.
What should I do if the other parent and I have been able to reach an agreement to accommodate the COVID-19 issues?
If you and the other parent have been able to reach an agreement, then your agreement should be recorded in writing.
We recommend that, at a minimum, this should be recorded by way of emails, text messages or some other form of communication app that can be accessed and produced to a court at a later date.
We further recommend that the agreement be set out clearly in numbered or dot point form, and that both parties acknowledge by way of text or email that the points accurately represent the agreement reached between the parties.
It is important that the parties take the time to do this as:
- A clear understanding of the agreement by both parties makes it less likely that there will be a disagreement in relation to the terms at a later date;
- In the event of a disagreement, the parties can refer back to the terms agreed between them;
- If there are ongoing proceedings before the family courts, these terms may need to be referred to at a later date and a written record is much better evidence than an oral account of the terms. This is particularly so if a party attempts to allege a contravention at a later date.
If parties wish to alter the operation of existing orders in a more permanent way, they can consider entering into a Parenting Plan. We recommend that all parties obtain legal advice prior to entering into any further Parenting Plans or Consent Orders to ensure they have a full understanding of the effect and consequences of same.
My income earning capacity has been negatively affected by COVID-19 – how will this affect my family law matter?
A number of industries have been heavily affected by the COVID-19 outbreak and the government’s subsequent preventative measures. As a result, a great many people have lost their jobs and source of income.
This has potential relevance to three (3) family law areas, namely:
- Property settlements;
- Spousal maintenance; and
- Child Support.
The court has an established process that it follows when determining applications for an alteration of property under the Family Law Act 1975 (Cth). One part of that process is for the court to consider the future needs of each party, which includes a consideration of their respective income earning capacities.
The key word in this consideration is ‘capacity’, and it is not necessarily the case that a sudden loss of income represents a loss of earning ‘capacity.’
For example, someone in a profession that is able to obtain a similar job at a similar level of income has not lost their earning ‘capacity.’
Whereas, it may be argued that a musician who is unable to perform at live venues or concerts (due to government social distancing restrictions) has lost their capacity at least for as long as those restrictions apply.
It is important to acknowledge that we are in the early stages of this crisis, and the economic effects will likely be felt by many industries for a great deal of time.
If it can be successfully argued that you have lost you earning ‘capacity’ then this may affect the overall division that you receive in property proceedings.
If you are the payer of spousal maintenance pursuant to an Order (whether interim or final) and you have lost your income, it is important that you act quickly.
If you are able to reach an agreement with the payee to vary the terms, then you may not need to make an application to the court but you should record your agreement in writing.
If you cannot reach an agreement you may need to bring an application to the Court to vary or discharge the Order, as failing to pay maintenance pursuant to an Order is a contravention of an Order.
If your former partner has lost their job, then they may not have the capacity to support themselves or pay spousal maintenance.
It may be worth considering alternative arrangements such as lump sum spousal maintenance if that is an option that is available.
Where there is a Child Support Assessment in place, it is likely to be affected by a loss of income of the payer, and possibly the payee.
If an Assessment is in place, you should approach the Department about having your child support obligation re-assessed if you have lost your source of income.
If you have a Binding Child Support Agreement in place, you will still need to meet your child support obligations under the Agreement unless a loss of income was a ‘terminating event’ for the purpose of your agreement.
If you cannot meet your obligations under the Agreement you may need to make an Application to the Court to set aside your agreement, however, the Court will only do this in particular circumstances and these applications are not often successful.
How will COVID-19 impact upon the valuation of my assets (business, real estate, superannuation)?
The devasting impact of COVID-19 on businesses is widely reported in the daily news. If your business is one of those that has already closed or is likely to close then there is no doubt that this closure will affect its value.
Valuing an operating business that earns a fair rate of return usually involves consideration of the value of assets owned by the business as well and the consistency and quality of its earnings.
On the earnings test, the value of a business that has been affected by COVID-19 will be less than it would otherwise have been. On the assets test, the effect of COVIS-19 is less clear. It would be reasonable to expect that in the short term, there may be very little if any affect.
If we knew how long it is going to be before a business could recover it would be sensible to delay a valuation until the business has fully recovered from the effect of COVID-19. Such a decision would clearly be in both party’s interests.
The effect of COVID-19 on property values is less clear.
In the short term, there may be no impact on the market value of a property. Much will depend on how long the impact of COVID-19 will last and the opinion of the valuer who values the property.
Part of their analysis is to compare sales of similar properties in the area to the subject property. This means that the location of the property may be another factor to add to the uncertainty.
Even if the market value of a property is not affected, its sale may take longer if there is less buyer demand.
If a property is to be sold, it will be a decision the parties will have to make jointly as to when that property should be listed for sale.
If one party wants to sell the property and the other party will not agree, then the only way to resolve this impasse is to commence proceedings and ask the Court to make an Order that the property be sold. This should only be a last resort.
For those who hold their superannuation in a commercial Fund, where that Fund invests in the stock market then the value of their superannuation entitlement in the Fund in the short term may not be affected.
However, the value of their superannuation may be affected in the long term.
The extent to which a person’s superannuation will be affected will vary between Funds and will depend on the range of asset classes the Fund invests in.
For family law purposes, there is not much a person can do about this situation as it is the Trustee of the Fund who makes investment decisions and values a member’s superannuation entitlement.
Self-managed superannuation fund
As with commercial funds, the effect of COVID-19 will depend on the type of assets the Fund owns.
If those assets are mainly shares traded on the stock market then the value of the Fund will vary according to the value of those shares at any one time.
If the Fund owns property then the effect of COVID-19 is less clear. Its value will only be affected if COVID-19 is responsible for a fall in the market value of the property.
For family law purposes, parties, who are usually the trustees of their Fund (or directors of the corporate trustee), have some control over how to manage the effect of COVID-19 on the assets owned by the Fund. They can decide to change the type of assets owned by the Fund and they can decide to delay valuing the Fund until it recovers from the effect of COVID-19.
Alternatively, they can decide to do an in specie super split between them as part of their property settlement so they each take a share of the assets at their present value.
My partner and I have separated but due to COVID-19 restrictions we are still living together. Will we be able to apply for a divorce?
Yes – you will still be able to apply for a divorce if you are still living together due to COVID-19 restrictions, or other reasons altogether.
While it is a requirement to be separated for a period of 12 months (or longer) prior to being able to make an Application for Divorce, it is not a requirement for parties to live apart after they’ve decided to separate.
Parties can make an Application for Divorce if they are ‘separated under one roof’, however, you will need to file an Affidavit of yourself to explain why you have continued together following separation. To learn more about what should be included in this Affidavit, click here.
You may also need to file an Affidavit of a third party (or parties) to provide evidence of your separation as well.
To avoid a dispute about the date of separation at a later time, if it is appropriate to do so, consider communicating your separation to your partner in some form of writing (text message or email) to confirm your intention to separate as well as what you say is/was the date of separation.
This will help support your Application for Divorce where you have separated under one roof and will avoid any confusion with respect to the date of separation.
What should I do if I am isolated with my partner and I have been a victim of domestic violence, or I have a genuine concern that I will become a victim of domestic violence?
If you are in a relationship (spousal, defacto or intimate personal relationship) and have been subjected to an act of domestic violence by your partner, you are able to seek protection for yourself or your family members by filing an Application for a Protection Order in the State Courts.
It is not a requirement for you and your partner to separate or live apart prior to an Application being filed.
“Domestic violence” includes physical violence, verbal abuse, emotional or psychological abuse, and/or behaviour that is controlling or coercive.
The Courts can make Temporary Protection Orders prohibiting your partner from committing further acts of “domestic violence” and if necessary, can make an Order requiring your partner to vacate the family home, if required.
Temporary Protection Orders can be made on the same day you file your Application.
The Covid-19 restrictions mean that the initial court appearance is likely to be by telephone.
It is also likely that your application, after Temporary Protection Orders are made, will be adjourned for approximately three (3) months before coming back before the Courts.
If you are in immediate danger, please call 000.