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  • 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.

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