The introduction of stage 4 restrictions for metropolitan Melbourne continues to present unprecedented challenges for parents and carers navigating parenting arrangements. While “shared custody arrangements”, whether informal or court-ordered, is permitted under the current restrictions, issues may arise beyond the control of either party that prevent a child from continuing to spend time with the other parent as a direct result of the of the COVID-19 pandemic.
In acknowledgement of the unprecedented crises, the Honourable William Alstergren, Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia, issued a statement on 26 March 2020 providing general guidance to parents and carers during the pandemic. Among other important considerations, the statement of Honourable William Alstergren reinforced that “it is imperative that, even if orders cannot be strictly adhered to and are varied by the parties, the parties ensure that the purpose or spirit of the orders are respected when considering altering arrangements, and that they act in the best interest of the children.”
The Family Court of Australia and the Federal Circuit Court of Australia continue to maintain a dedicated list dealing exclusively with urgent family law disputes that have arisen as a direct result of the pandemic (the COVID-19 List). Applications that meet the COVID-19 criteria will be allocated a hearing date within 3 business days of being considered by the Court, or less if assessed as critically urgent.
In order to be considered for the COVID-19 List, applications must have been filed as a direct result of the COVID-19 pandemic and be urgent in nature. The Courts require Affidavit evidence regarding the urgency of the dispute, the alleged risks to the child or children, details of how the dispute has arisen and, where appropriate, details of the reasonable attempts to resolve the dispute without success.
Given the need for an urgent hearing, the Courts also require details of how it is proposed the Respondent can be provided with a copy of the court documents, including information about the Respondent’s current email address, and if the matter is capable of being dealt with by electronic means.
If an application does not meet the relevant criteria for inclusion in the COVID-19 List, it will be allocated on a date in the future or referred to the relevant docket Judge, if applicable, for hearing in the ordinary course.
The following are examples of applications that may be suitable for filing in the COVID-19 List:
- Supervised contact: the current parenting arrangements involve supervised contact, and the contact centre is closed or the supervisor cannot perform their role and the parties cannot agree on an alternative.
- Border restrictions: one party lives in a different State to the other party and the child or children cannot travel between residences due to border restrictions.
- Medical: either party and/or the child have tested positive for COVID-19 and the parent with whom the child is currently spending time cannot fulfil their parenting obligations due to sickness or concerns of infection.
- Family violence: there has been an increase in risk due to family violence as a result of the restrictions imposed on families due to COVID-19.
The recent decisions in Boyd & Sage [2020] FamCA 482 and Pandell & Walburg (No.2) [2020] FCCA 1853 illustrate the Courts’ approach towards international border restrictions and medical issues during the pandemic, respectively. It is expected, however, that the increased restriction of interstate movement will continue to present challenges for separated families, notwithstanding the ability to seek an exemption from the relevant State and Territory Governments to travel interstate in certain circumstances.
In the meantime, the use of video conferencing technology such as Facetime and Zoom may assist parties reach practical solutions as an alternative to face-to-face time in appropriate circumstances. Any agreements to vary parenting arrangements should be in writing (such as email or text) and, where possible, formalised by Consent Orders and filed with the Courts. Consistent with their parental responsibility, parents and carers should consider whether make-up time in the future is appropriate having regard to the developments of the relevant restrictions, and the spirit of the parenting orders, for the best interest of the children.
The Courts remain open to assist Australian families in these challenging times. Should you require any assistance to navigate this confusing time, our family law team is available to help and can be contacted during normal business hours via email (mblizzard@khq.com.au or adminfamily@khq.com.au) or by telephone on (03) 9663 9877.
This article was written by Stefan Pantellis (Senior Associate) and Monica Blizzard (Director).
