Over the past few days in particular, we have had a number of enquiries about how the COVID-19 pandemic will affect our client’s family law matters.
In this blog article, we aim to address some of the issues that have already arisen or may arise, as well as pass on information to our client’s about how their matter in particular may be affected.
The court system
The Federal Circuit and Family Court of Australia have just announced a number of urgent and new changes to how Court matters are to be handled moving forward, and until further notice.
The Court will continue to take new Applications and to hear matters that are already on foot. However, the manner in which the Court will hear matters and the priority that is given to particular matters, has changed.
Some of the main changes are as follows:
- 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.
- However, there will be a limit of 8 people in a courtroom at any one time (excluding the Judge and their support staff).
- While there are usual around 30-35 matters in a Judge’s Duty List, all listed for a start time of 9.30am, moving forward these high-volume lists will be staggered to reduce the number of people in attendance. Again, we will notify you of any change to the start time of your matter.
- All matters remaining in the Callover list in Brisbane, Sydney, Parramatta and Adelaide will be postponed until further notice.
- 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.
- Where and if appropriate, Trials, Appeals and interim hearings will be conducted by telephone or video conferencing. Again, we will advise you if this is applicable to your matter.
- Where attendance is required, divorce hearings will be conducted by telephone from now until the end of June 2020.
- All Case Assessment Conferences and Conciliation Conferences will also be conducted via telephone.
- Family Reports arranged by the Court will proceed as arranged, unless parties are notified otherwise. All reports will be conducted in accordance with social distancing principles.
It is possible that the Courts may close in the future.
We recommend that clients continue to look to alternative dispute resolution to resolve their family law matter, including negotiation, mediation and family dispute resolution.
There is a great deal of uncertainty and concern with respect to compliance with agreed and/or Court Ordered parenting arrangements with COVID-19.
Parents have also been concerned about what it will mean for them if a ‘lockdown’ was Ordered.
Children’s time with each parent
It is important for children to maintain their relationship with both parents, however, 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.
We therefore encourage clients to be flexible and creative in the current circumstances.
For example, if children are unable to travel interstate to spend time with a parent (i.e. because flights have been cancelled), is it possible to arrange regular Skype/FaceTime calls and rearrange make up time for later in the year? If an agreed venue has been closed, can the children spend time with the parent at an alternative venue?
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.
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.
Alternative care arrangements
We recommend clients make arrangements should child care facilities and schools close.
It may be more appropriate to seek support from the other parent, rather than a grandparent, who may be more vulnerable to COVID-19.
Several different care arrangements for the child should be discussed with the other parent in the event that one or both parent’s contract COVID-19 and/or have to go into isolation.
The more parents can think about and talk about these issues in advance, the smoother things will go if and when this situation arises.
Changes to parenting arrangements
During these uncertain times, parenting arrangements may change temporarily.
We recommend that any temporary changes be documented in writing by consent where possible, either by text message, email or correspondence through lawyers.
If you have any concerns regarding changing parenting arrangements, please contact our office.
Breaching parenting orders
We remind clients that if they are considering breaching parenting orders, both generally and due to concerns around COVID-19, that parent must have a ‘reasonable excuse’ to do so.
It is not enough for a parent to simply be concerned about COVID-19 to justify breaching parenting orders.
We also hold the view that, generally, it would not be reasonable for a parent to breach parenting orders if they have the opinion that the other parent does not have the same standards of hygiene as them.
We recommend parties make contingency arrangements now in the event one or both parents, or the child, contracts COVID-19 and/or isolation is required.
If you have concerns about whether it is reasonable to breach parenting orders in the circumstances, please contact our office as soon as possible.
Domestic violence issues
It is certain, in these uncertain and ever-changing times, that tensions and anxieties will be on the rise. This means that there is the potential for domestic and family violence to also increase.
If you are in immediate danger, please contact the Police on 000.
If you would like assistance, please contact our office, or call the 24-hour national sexual assault, domestic family violence counselling service on 1800 737 732.
Property settlement matters
Please be aware that superannuation splits may be affected in the current climate.
Superannuation splits are often expressed in dollar terms.
Given the uncertainty and volatility in the share market at present, it may no longer be just and equitable to enforce the terms of a superannuation split in a Consent Order or a Financial Agreement.
For those matters that have not yet been finalised, it may be preferred for superannuation splits to be expressed in percentage, rather than dollar terms, to take into account the uncertainty of the market.
Please contact our office if you have any concerns regarding superannuation splits.
Much like superannuation splits, given the uncertainty of the market at present, business valuations that have recently been obtained may need to be reconsidered.
Many businesses have already been adversely effected by COVID-19 while others have thrived. The effect of COVID-19 on the value of a business is an unknown at this time and one that requires expert third party advice.
Please contact our office if you have any concerns regarding the effect of COVID-19 on your business valuation or financial settlement.
Real estate valuations
Again, it is an unknown as to how the COVID-19 pandemic will effect the real estate market.
We encourage clients to get in touch with us to discuss their concerns and obtain third party advice where necessary.
Child support and spousal maintenance
We have already started to hear that a number of people have been laid off, are unable to work or have been forced to work reduced hours as a result of COVID-19.
In these cases, it may be appropriate to seek or expect that a reassessment of child support payable may be made, given that the Child Support formula takes into account each parent’s income.
Spousal maintenance also takes into account each party’s income and their capacity to meet their own reasonable weekly expenses as well as contribute to any deficit in the other party’s capacity to meet their reasonable weekly expenses.
If there is a spousal maintenance Order in place and you have concerns that you or the other party will not be able to meet that Order because of a change to the level of your/their income as a result of changes to your employment from COVID-19, please contact us as soon as possible to discuss the circumstances and whether a change to the arrangements is appropriate or necessary – as well as what alternatives might be available.
We remind all client to check on the Australian Government’s website before travelling overseas.
If you are not an Australian citizen or permanent resident, you may not be able to return to Australia.
In any event, at present, you will be required to self-isolate for 14 days upon your return from overseas. You will need to think about how this will effect your family law issues, for example, your parenting arrangements or your ability to attend a court hearing.
If you have travel arrangements with children to go overseas in the future, we recommend parents discuss whether the travel is appropriate and necessary at this current time.
In the current climate, people are becoming more anxious regarding their health, employment and their family’s well-being. We remind all clients to be considerate of others.
If communication between parties are amicable, we encourage clients to call the other party to discuss any concerns they may have to prevent any miscommunication or misunderstandings, but ultimately, to ensure where possible that any changes to agreed arrangements are reflected in writing.