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Snapshot

  • The COVID-19 pandemic has placed many families under unprecedented pressure.
  • Parents should try to act reasonably, practically, and flexibly, keeping in mind the best interests of the children.
  • The law in relation to public health orders (and other government restrictions) is constantly evolving and parents should be attuned to the restrictions that may impact family law arrangements.
  • Various counseling and mediation services are available and the family court system is still operating should parents require a judicial decision in relation to a parenting matter.

Family law disputes have traditionally run the gauntlet of not only legal issues, but also the emotional and human elements that so often accompany such disputes. The COVID-19 pandemic has added an extra complication to the lives of many Australian families dealing with family law disputes. How are families to approach their family law issues during this time? The situation pertaining to the COVID-19 pandemic is constantly changing, and everyone living in Australia needs to ensure they are up-to-date with such changes as they arise. Given the evolving nature of the situation in New South Wales and the potential for significant or abrupt changes, this article is confined to providing an overview of the issues that may arise in family law matters during the COVID-19 pandemic and does not constitute legal advice.

The best interests of the child

The Hon Justice Alstergren, Chief Justice of the Family Court and Federal Circuit Court, issued a statement on 26 March 2020 in relation to parenting orders during the COVID-19 pandemic. Amongst other things, the statement urges parents and carers to act in a child’s best interests, including considering a child’s safety and wellbeing. This principle – the best interests of the child – is the guiding and paramount principle of the Court’s approach to family law matters as set out in the Family Law Act 1975 (Cth) and the Chief Justice’s Statement reminds parents (and lawyers) of the fundamentals that are already contained in the Act.

CJ Alstergren’s statement also reminds parents that if family law orders are already in place, parents still have an obligation to comply with such orders. He then goes on to make the very practical comment that during the COVID-19 pandemic, whilst Courts make orders it is the parents and carers who have the day-to-day responsibility of looking after a child and that despite there being Court orders in place, in some instances these orders will be ‘very difficult’ or ‘impossible’ to follow during the pandemic. For instance, since the Chief Justice’s statement, the NSW Government issued the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) (‘the March order’) which has imposed major restrictions upon persons in NSW.

Parenting arrangements that may have worked well only a few months ago, may now not be physically possible given the current restrictions of gatherings and movement in NSW (and indeed throughout Australia). For example, if there was a family law order for time or changeover to occur at a certain public location, such order may now be impractical or even impossible with the closure of many commercial enterprises and schools, but also, impacting this are government restrictions on movement and gatherings of people. Some states have currently closed border crossings and imposed strict isolation regimes. It is extremely important that parents understand, and consider, these restrictions when determining parenting arrangements.

The impact of public health orders on parenting arrangements during COVID-19

The Public Health Act 2010 (NSW) gives state officials the power to take actions and make directions, as the relevant Minister considers necessary, to deal with risks to public health. The March order, (mentioned above), restricts people leaving their place of residence without reasonable excuse and restricts gatherings of more than two people. Exemptions are set out in Schedule 1. ‘Reasonable excuses’ include facilitating existing parenting arrangements between parents and children that do not live in the same household.

Parents who are separated, and co-parenting, need to avail themselves of the latest updates in relation to any directions. The current penalty being imposed for contravening public health orders in NSW, without a reasonable excuse, includes a fine of up to 100 penalty units (currently calculated at $11,000) and/or a period of imprisonment for up to six months. At this stage, we do not know how long such measures will be in place, however the March order is in force for 90 days from its commencement, unless revoked and/or replaced.

A practical approach to co-parenting during COVID-19

The Chief Justice in his statement has suggested that, if it is safe to do so, parties should communicate with each other about their current orders. Parents should attempt to develop practical options and solutions to difficulties or necessary changes in parenting arrangements. It is preferable that parents and carers write out their agreement (e.g. by email, on paper, or text message). This way both parties are ‘on the same page’.

Where there may have been orders for supervised time there may need to be some re-negotiation around these arrangements, provided it is safe to do so. Supervised time is ‘contact’ between a parent and child that is either supervised by a professional contact service, or by a family member or friend. Some contact centres are setting up video-conferencing for supervised time to continue where physical supervised time is not possible (see, e.g. www.interrelate.org.au).

If parents and carers have difficulty in communicating about the parenting arrangements and cannot come to an agreement, then there are mediation services that may assist them. At the time of writing, many of the Family Relationships Centres (‘FRC’) such as Relationships Australia and Interrelate are still operating to assist parties with difficult parenting and relationship issues. Many FRCs have moved to an online or telephone method for their dispute resolution services. Ultimately, if parties are unable to agree on parenting arrangements or if it is unsafe to attempt to communicate about such issues, then the Family Court of Australia (‘FCA’) and Federal Circuit Court of Australia (‘FCC’) are operating and available to assist parties in circumstances where a Court determination is necessary to resolve a dispute. The FCA and the FCC have both swiftly transitioned to telephone and audio-visual means of conducting hearings in order to continue to deal with urgent matters and these courts have made a commitment to providing access to justice during these difficult times. However, if people are at imminent risk of harm, then police and/or medical assistance should be called for immediately.

During the COVID-19 pandemic, there may be other practical considerations that will influence the need to re-think children spending time with extended family members, such as grandparents. This action would be in line with government advice in relation to Australians who are over 70 years of age to stay home and self-isolate, where possible. However, the need for families to remain in contact is imperative during these times of imposed isolation, to maintain our mental health and wellbeing (see new resources available from www.lifeline.org.au). While we are physically isolated, keeping in touch by other means may not only assist the mental health of parents and children, and extended family members, but it may also be relevant if there are Court orders for such contact. Alternatives to face-to-face contact may include technologies such as video chats via services such as Facebook Messenger, Zoom, WhatsApp, Skype, as well as email and telephone calls.

Family and Domestic Violence during COVID-19

While being connected with family is important, so too is the need for vulnerable people to have access to support services. The very real presence of family violence during the ‘lockdown’ period in NSW is a pressing issue for some Australian families. A definition of family violence is set out at section 4AB of the Family Law Act and it’s a running theme throughout the Act, with specific references to the need, amongst other things, to protect children from being exposed to family violence. Family violence may include different types of abuse and controlling behaviours – things like, but not limited to, physical, financial, emotional, psychological, and sexual abuse. For some, the circumstances presented by the pandemic may mean being socially isolated with a violent and/or controlling partner. For others, the mandated social isolation may put them at risk of being disconnected from support services. It may be difficult to access such services with a domestic violence perpetrator in close quarters.

Since the pandemic commenced in Australia, domestic violence support services have experienced a spike in demand. The Domestic Violence Crisis Service in Canberra, for example, saw a 27 per cent increase in contact in March 2020 (Kimberly Le Lievre ‘Coronavirus: Canberra domestic violence support service braced for spike in cases’, Canberra Times, 28 March 2020). The Federal Government has now indicated it will divert $150 million to be shared between the states and territories to assist people experiencing family and domestic violence.

Ultimately, if a person feels as though they are at imminent risk of harm (or they are worried for other people’s safety), then they should phone police on ‘000’. The contact details of other domestic violence services can be found on the ‘Family Violence Law Help’ website: https://familyviolencelaw.gov.au/

Conclusion

We are all living in extraordinary times where the activities we would usually pursue in our everyday lives may promote the spread of COVID-19. Government restrictions upon movement and activities are restrictions made with the purpose of mitigating such risk. However, these restrictions clearly impact upon families and may pose added difficulties to separated parents who share the parenting of children. The Family Law Act sets out a practical and common-sense approach which may assist legal practitioners in their advice to parents during the pandemic, whilst adhering to government health orders and/or other government directives. Concepts like the best interests of the child, the need to act reasonably, and the need to protect children from harm, provide parents with the legal framework to act pragmatically during these difficult times.


Alexandra McCosker is a solicitor with Legal Aid NSW.