Family Law in the Time of COVID-19

Coronavirus has had an enormous impact on the lives of all Australians, including in relation to family law matters. If you have separated from your partner, there are a wide range of ways in which the present circumstances may affect you or your family.

Stay at Home Directions

One of the main ways in which COVID-19 has affected people’s lives is through government directions which limit the freedom to leave home and interact with others. The Victorian State Government, for example, has had in force a series of restrictions since late March of this year. The current rules last from 12 May 2020 until 31 May 2020 and are referred to as the Stay at Home Directions (No 6). These rules have the force of law and a person who fails to comply with them may suffer serious penalties, including fines of up to about $20,000.00 (section 14).

The Stay at Home Directions operate, firstly, by saying a person must not leave their home other than for one of certain approved reasons (section 5). The Directions also say that a person must not allow another to enter their home, other than for one of certain permitted purposes (section 11).

From a family law perspective, the most important provision may be section 7(1)(a) of the Directions, which states that a person may leave their home to meet obligations in relation to shared parenting arrangements, whether those arrangements are pursuant to a court order or otherwise. This means that the parents of separated children are, for the most part, permitted to carry on with their post-separation parenting arrangements regardless of the general requirement that they not leave their home. This corresponds with the position expressed by the Chief Judge of the Family Court and Federal Circuit Court, the Honourable Will Astergren, in his statement issued on 26 March 2020. In that statement, the Chief Judge made clear the Court’s position that parents were, in most circumstances, expected to comply with any existing parenting orders, to take a reasonable and flexible approach to any changes required by the new circumstances and, above all, to continue to act in their children’s best interests.

Other important sections in the Stay at Home Directions are 9A, which permits people to leave home to visit the homes of family or friends, and 11(1)(g), which states that people may allow others to enter their home if it is for that purpose. Somewhat confusingly, section 11(1)(g)(i) of the Directions says that people are permitted to allow not more than five other people to enter their home, if the people visiting are doing so for the purpose of visiting family or friends; according to section 11(g)(ii), however, the visit must not be for the purpose of engaging in recreation. How these provisions will be interpreted and operate is an open question at this stage. From a family law perspective, the key point is that they will allow greater flexibility than the previous rules did in relation to the implementation of post-separation parenting arrangements.

Restricted Activity Directions

In tandem to the Stay at Home Directions, the Victorian State Government has implemented a series of restrictions on the operation of businesses and other organisations. One of the main ways in which these rules have impacted family law matters is in making it substantially harder to sell a property. The restrictions have been relaxed somewhat, but we are still very far away from a return to “business as usual”. The current rules last from 12 May 2020 until 31 May 2020 and are referred to as the Restricted Activity Directions (No 7).

Section 14 of the Restricted Activity Directions deals with real estate auctions and inspections. Auctions may now be conducted for the sale of residential properties, but no more than 10 members of the public may attend. There are other rules which must be complied with, also. Section 14(3) of the Directions requires real estate agents conducting an auction to request names and contact numbers of members of the public who attend and keep a record of those details (presumably to help deal with a situation in which a person who attends an auction is later found to have been a carrier of the virus).

It is not the role of a family lawyer to give advice regarding the ups and downs of the property market, but people selling a property following separation in a market affected by coronavirus may wish to consider getting appropriate financial advice.

The Courts

It is always best to settle family law disputes out of court, where possible. Going to court can be expensive, time consuming, and emotionally draining. Unfortunately, however, it is not always possible to settle matters in an amicable fashion. Emotions run high following a separation and some people have unrealistic expectations regarding their rights and entitlements. For these reasons, amongst others, it is sometimes necessary to litigate a parenting or property dispute, despite the best efforts of practitioners to keep the matter out of court.

In response to COVID-19, the Federal Circuit Court (which is the court in which most family law disputes are litigated) has put in place new procedures for the filing of documents and the conduct of hearings. Most hearings are now conducted by telephone or video-conference call. Each judge has discretion with respect to how they wish to conduct hearings in this way and various rules, directions and requests have accordingly been issued. A hearing conducted by telephone or electronic means differs significantly from one in which the parties, their lawyers, and the judge are all in court together on the day. Savvy practitioners have adapted to the new normal, however, by quickly familiarising themselves with the necessary technologies and software programs and adopting a fresh approach to negotiations and preparation for hearings conducted in this way.

Practical Considerations

One of the main ways in which COVID-19 has impacted families is in the operation of schools. The Victorian State Government Department of Education and Training has indicated there will be a staged return of children to school, with students in prep, grade 1, grade 2, year 11 and year 12 returning to school on 26 May 2020, and other students returning on 9 June 2020. This can particularly complicate change-over arrangements for separated parents, which often entail one parent leaving the children at school in the morning and the other collecting them in the afternoon. In addition, the Department has indicated that, at present, children can attend school in certain circumstances, such as where the resident parent must attend work, but only if no other arrangements can reasonably be made. This means that, in many cases, a high degree of cooperation between separated parents will be required in order to appropriately ensure that children are not left at school where other care arrangements could reasonably be made.

Although the Stay at Home Directions and Court publications have indicated that, in general, existing post-separation parenting arrangements should be maintained despite the current circumstances, that may not always be practical or in a child’s best interests. In particular, children with vulnerabilities such as respiratory diseases may need additional protections put in place and creative solutions implemented to keep them safe whilst still maintaining their relationship with both parents.

Family Violence

Section 7(1)(i) of the Stay at Home Directions (No 6) says that a person may leave home to escape harm or the risk of harm, including harm relating to family violence. This may be cold comfort, however, to people experiencing family violence who have nowhere else to go.

The most common way in which a victim of family violence may gain protection from the perpetrator is by applying, or asking Victoria Police to apply, for an Intervention Order. Such applications are dealt with in the Magistrates’ Court of Victoria. There have been a wide range of changes to the operation of the Court vis-a-vis Intervention Orders, including the implementation of an online application system, new listing time frames, and changes in the way in which duty lawyers and police lawyers deal with hearings. Now more than ever, having advice from a competent lawyer may assist parties to navigate IVO proceedings, regardless of whether they are the Respondent or Affected Family Member in the application.

Conclusion

Family law matters are always complicated and, in this time of change and uncertainty, more so than ever. Every matter is different and the impact of coronavirus on people and their families will differ from case-to-case. No-one knows, at this stage, how long COVID-19 will continue to affect our lives, but there is every indication that it will do so for some time yet.

If you have recently separated, need to obtain a property settlement, or are trying to manage a post-separation parenting situation, getting advice from a competent and pragmatic family lawyer will help you find your way forward.

-Kai Martin, Barrister & Solicitor, Wheeler Family Law

Contact us here.

For more information, see:

Federal Circuit Court of Australia COVID-19 updates and information – http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/about/covid/

Magistrates’ Court of Victoria, changes to operations during the COVID-19 pandemic – https://www.mcv.vic.gov.au/news-and-resources/news/changes-operations-during-covid-19-pandemic

Statement from the Chief Judge of the Family Court of Australia and Federal Circuit Court of Australia – http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/mr260320

Victorian State Government Department of Education and Training, information for parents on the staged return to on-site schooling – https://www.education.vic.gov.au/parents/Pages/stagedreturn_advicetoparents.aspx

Victorian State Government Department of Health and Human Services website, Directions issued by the Chief Health Officer – https://www.dhhs.vic.gov.au/state-emergency