Dad in a mask holding his two young children also in masks

The word “unprecedented” has been used widely since a global pandemic was declared in March 2020. In these unique times, the economic, political and social impact of COVID-19 has been felt across the globe. Arising from this is the impact on family law matters. The past few months have shown an imperative to adapt to “the new normal”. As a result, there has been push to provide clients with clarity and guidance about how to deal with separation amidst the COVID-19 playing field.

So, how does COVID-19 affect family law matters?

Under Stage 4 restrictions in Victoria, all shared custody arrangements, whether it be an informal arrangement such as a verbal agreement or a formal arrangement such as a Parenting Plan or Court Order, can continue as normal and parents and carers are permitted to leave their homes to facilitate spend time arrangements.

Parents and carers who are parties to parenting arrangements are expected to comply with the arrangement that is in place. This includes facilitating the children spending time with each parent or carer and prioritising the children’s safety and wellbeing in doing so. Lockdown restrictions should not be considered as an excuse to contravene the Court Orders or to unilaterally alter spend time arrangements without the consent of the other parent or carer.

Ultimately, a certain level of common sense must prevail in these unprecedented times. Of utmost importance is the best interests of the children and the expectation that parents and carers should comply with Court Orders. Where government measures may create difficulties for parties who are subject to parenting orders, the Chief Justice of the Family Court of Australia has provided general guidance, noting that each family’s circumstances are very different.

Parties are encouraged to communicate openly with each other about their ability to comply with the pre-existing care arrangements and if this is not possible, they should attempt to adopt practical solutions that are sensible and reasonable. If it is not possible for parties to communicate with each other, they can opt to communicate with the assistance of a third party such as a Family Dispute Resolution practitioner or a lawyer. It is recommended that any new agreement reached between the parties should be in writing (this may include text messages or emails) even if the new agreement will only be in place for a limited time such as when lockdown restrictions ease.

If parties are unable to reach a sensible and reasonable agreement, they should ensure that each parent or carer continues to communicate with the children in a manner that is “in the spirit of the orders” via mediums such as FaceTime, Skype or by telephone. It is vital that parties act reasonably and if they choose not to comply with the Orders, they must have a reasonable excuse for not doing so. Whether or not a parent or carer has acted reasonably is a matter that is considered by the court.

If it is not possible for parties to reach an agreement between themselves or it is unsafe to do so, they may apply to the Court to seek Orders or to seek a variation of the Orders that are currently in place.

The global pandemic is also impacting property cases. As a result of job losses, decreased income, fewer people in the property market and restrictions on property inspections and auctions, real estate and business valuations conducted during this time of uncertainty may have an adverse impact on the value of an asset pool in any given case. Decline in share indexes has also undermined the value of superannuation member balances.

Moreover, parties who are subject to a Binding Child Support Agreement or who are liable to pay spousal maintenance should seek legal advice if the income of the payer has been reduced, noting that their ability to cover their ordinary financial obligations may be significantly hindered. Options to reduce and or suspend payments may need to be considered.
Whilst it may seem that much of the world appears to have been stagnant in lockdown, life goes on in the Family Court and the Federal Circuit Court which remain open. The vast majority of family law cases and mediations in Victoria are being conducted electronically by video conferencing or by telephone. Whilst the Courts are still open, they are operating at a reduced capacity and at a slower rate and it is encouraged that financial disputes should be resolved by alternative dispute resolution mechanisms including lawyer-initiated mediations and arbitration conducted by barristers. The rationale being to free up resources for more urgent parenting and family violence cases.

State Courts continue to operate albeit on a threadbare basis. State Magistrates’ Courts are still open to deal with Intervention Order cases arising in the context of family violence, though parties experiencing domestic violence should discuss matters with their lawyer. If the family violence is serious, the police should be contacted.

If you are feeling unsure about the effect that COVID-19 might have on your family law matter, you are encouraged to speak to a member of our experienced team who can assist you with your enquiries.

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