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I have noticed that as the Covid-19 crisis has continued, many parents have sought advice as to whether the lock down and restriction of movement means parenting orders no longer need to be complied with. 

In some case I have seen parents use Covid 19 as an excuse to breach orders in circumstances that in my view represents a clear breach. I currently have instructions to file proceedings on one such matter. 

Unfortunately, there is never an easy answer to whether a decision to breach an order amounts to a “reasonable excuse” and Covid 19 is not something we have seen before. 

Helpfully the Family Court and Federal Circuit Court of Australia have released a statement from the Honourable Will Alstergren, Chief Justice and Chief Judge of those courts, to assist the public and provide guidance.

Are the courts closed during Covid-19?

No. The courts are open and hearing cases. Most courts have however modified their procedures to decrease the necessity for personal contact. This means more court appearances being heard by electronic means (telephone or video). 

There are also procedures to increase the use of electronic documents (discussed in my previous blog on this topic) and since then a move away from requiring signatures on Affidavits (see Joint Practice Direction 2:JPD 2 of 2020 – Special measures in response to Covid-19).

The Attorney General Department has also classified legal services as “essential” and thus family lawyers and courts are available to assist people in need for the duration of the crisis.

General guidance for parents during Covid-19

Every family is different, every situation involving children is different so no written statement can ever substitute for advice from a Brisbane Family Lawyer or Gold Coast Family Lawyer.

His Honour however has penned 14 points which I will paraphrase here, that are very helpful in guiding people to make the best choices at this difficult time. 

  1. Act in the best interests of your children, particularly with regard to safety and wellbeing. Courts make orders in the best interests of children but day to day decisions are the responsibility of parents.
  2. Consistent with best interests is continuing to comply with Orders for time and communication.
  3. Situations may arise that make compliance impossible i.e. if a Contact Centre is closed. Other situations may raise an immediate safety risk – such as where a parent or person close to them has Covid 19. These situations may amount to a “reasonable excuse” not to comply. However, a in such a situation a Judge would need to agree with you on a contravention application. 
  4. As a first step, parents should communicate with each other (if it is safe to do so). This ought to be conducted “reasonably and sensibly” and aimed at achieving a practical solution to the issue. 
  5. If there is going to be a change to arrangements, even for a short time, they should be reduced to writing so everyone understands the agreement. 
  6. If people need guidance with an agreement, there are services such as the Family Relationship Advice line (1800 050 321) that can provide assistance and family dispute resolution services. 
  7. Lawyers such as Hooper Family Lawyers can also assist with mediation service and helping negotiate an agreement. 
  8. If necessary, Consent Orders can be filed electronically.
  9. If parents can’t agree or it is unsafe to negotiate, and there are real concerns, the parents may approach the court electronically for a variation to orders.
  10. Where there is no agreement, parents should keep the children safe until the dispute can be resolved. Further, if time is stopped there should be some contact between the other parent and children.
  11. Act reasonably. Section 70NAE Family Law Act 1975 makes “reasonable excuse” a defence to a contravention and therefore a matter relevant to the court.
  12. If the strict letter of the orders cannot be adhered to, parents should ensure the purpose or spirit of the orders is respected.
  13. If there is some immediate danger to a child contact the police.
  14. Perpetration or threats of family violence is never in a child’s best interests.

His Honour went on to clarify that the community can be assured the court will continue to perform their duties during the Covid-19 crisis.

Family Dispute Resolution (such as mediation) during Covid-19

It remains the case that Section 60I Family Law Act 1975 must be complied with requiring that before commencing court proceedings (unless one of the matters in Section 60I(9) applies) parents must attend mediation before filing proceedings in a court for a parenting order.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Family Lawyers can assist you with practical advice. 

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

We are certainly approaching unprecedented and concerning times. While most people would agree that the health of the community and limiting the spread of the virus is paramount, it is also critically important that regular life carries on despite this pandemic.

There is no doubt that over the next few months we will need to adapt in different ways, and within the legal profession this has started to occur with respect to the way lawyers and the Courts will carry on delivering our services.

Parenting Orders during the Covid 19 Pandemic 

There is no doubt heightened anxiety, and fear for children transitioning out of a parent’s home in the current climate. However, the crisis doesn’t mean that Parenting Orders don’t need to be followed. 

There are penalties for noncompliance with Orders without a “reasonable excuse” and increased cost and conflict inevitably results from a Contravention of Parenting Orders. 

I don’t intend to examine the law surrounding Contravention Applications here, but I would recommend that if you think you have a reasonable excuse to contravene a Parenting Order, that you obtain advice from an Accredited Specialist Family Lawyer before you take any such action. Similarly, if you believe there has been a contravention without reasonable excuse, obtaining timely advice is important.

What is invariably best for your children (and your wallet) however is some common sense, flexibility and good communication. You can always negotiate outside of the Orders and come to an agreement in unusual situations. 

The Family Law Section of the Law Council of Australia has put out a 10-point Guide to help separated parents during Covid 19. These are:

  1. Keep yourself and your children healthy – Follow advice and guidelines such as social distancing, hygiene i.e. hand washing, coughing into your elbow etc. Inform your children how and why these things are important. Communicate what you’re doing to the other parent and try to establish a routine between the two households.
  2. Consider that your children don’t process these events in the same way as adults and they may be very anxious. You can be certain they are hearing a lot of what is going on in news reports and they will have received information via schools. Some kids may have had important events they were looking forward to being cancelled, and they may be missing their school friends.
  3. Meet your Parenting Order obligations. If challenges arise (travel restrictions or quarantine) there may be a reasonable excuse but communicate and look for other options.
  4. Try other methods such as FaceTime etc to keep children in contact with their friends, other family members etc. Adapt your routines and activities.
  5. As difficult as it might be, do your best to be on the same page as the other parent especially around the things you will do to limit the potential for exposure to the virus. Be open about your concerns and raise them in a non-accusatory, open, businesslike manner.
  6. Be flexible and mutual. If you are asking the other parent for a concession in the best interests of the children, make a concession as well. What I mean by this is allow “make up time” for example.
  7. Show compassion. Not everyone will react to the crisis the same way. Try to remain calm even when your ex-partner is not.
  8. When disagreements arise look for solutions and compromise. Emotions are high and Courts will have increasingly limited availability (discussed below), as will other dispute resolution services.
  9. Try to work together. Some parents may be out of work, while other parents may work in essential service during time when schools are closed. Can you help each other out? As much as possible your children will benefit greatly by not just having you work together; but by seeing you work together.
  10. Staying positive especially when your children are watching. They take their cues from you. This will end and we will get back to normal.

What if I need Family Law advice during the Pandemic?

Hooper Family Lawyers will be fully operational during the Covid 19 crisis. 

Our practice management (and client file management) has been electronic for 10 years and our system is cloud based. We can view your complete file from a mobile phone or other computer or device. 

During this time we can take our instructions, including initial instructions, over the phone. 

We regularly represent people in mediations electronically and appear in Court electronically. 

Many businesses will need to adapt to the crisis, but we are fortunate in that our practice has embraced remote technology for many years. This means minimal disruption to us delivering our services to you.  

Will the Courts be shut down? Should I bother with this now?

The Courts (Commonwealth and State) have issued a number of Practice Directions with respect to the way the crisis will be managed. I only intend to focus on Courts relevant to my clients here.

Southport Magistrates Court – Guideline 1 of 2020 (Made under Practice Direction 2 of 2020):

In Domestic Violence Matters appearances by legally represented parties are excused and all parties may appear by phone.

For the filing of Protection Order Applications, this can be done by post of it is not urgent. In urgent matters the Police can be contacted to obtain an urgent Temporary Order. Similar process for appearance in the Southport Magistrates Court sitting as the Children’s Court.

Family Court and Federal Circuit Court Listing Arrangements:

Each registry may adopt their own operational requirements however the following are generally being implemented:

For first Court dates, mentions, interim hearings and directions, telephone procedure will be:

  1. The Court will contact the parties to indicate matters will be heard by phone.
  2. After being notified a party may approach the Court to seeking that the matter does not proceed by phone if, a. it is not practicable to do so; or, b. the matter is urgent and requires “face to face” hearing.
  3. If “face to face” is required, the parties should contact the chambers of the presiding judge by email and provide a brief outline as to why the matter is urgent and/or requires “face to face”. 
  4. If telephone is not practicable, and the matter is not urgent, it may be adjourned to a future date to be advised.
  5. Otherwise the Court should have the contact details (i.e. telephone) at least 2 days prior to the hearing.
  6. If the parties can agree on Interim Orders or Directions in advance and not require a hearing, they can simply be emailed to the Associate for Orders to be made by consent. 

In some ways the above may be a blessing in disguise. I have long believed that telephone duty lists before Registrars for Directions and Consent Orders would be a good idea. Primarily because this would save litigants a lot of money in legal costs. 

When your lawyer can sit in the office, do other work, and then take a call to appear and represent you, you are saving money because your lawyer is not out of office for half a day travelling and waiting to appear.

For Hearings (i.e. Final Hearing or Trial) the process will be:

  1. Callovers for each matter will be conducted by each Judge by telephone over April 2020 and May 2020. 
  2. The Judge will want to know the urgency and status of each matter to prioritise Hearings and whether Hearing by telephone could occur.
  3. Cases that are of lower priority may be referred to FDR (Family Dispute Resolution). Cases of high priority will be listed and be heard in accordance with the “face to face” protocol (discussed below).

Face to Face in Court Protocol 

There are several protocols for Court Hearings designed to limit the risk of infection to the public, Court Staff and Judges. These are:

  1. As stated above. Urgent matters will receive listings. Listings will be staggered so that people can maintain social distancing and not have to congregate in Court foyers. To reduce the length of hearings written submissions etc will be permitted. 
  2. No more than 8 people will be allowed in the Court room (excluding the Judge and Associate). Solicitors, Counsel and parties will have designated areas to maintain distance. Parties are required to exit the Court room and building immediately after the Hearing. 
  3. Additional Court room cleaning. Hearings will occur for not more than 1.5 hours at a time and will be closed for cleaning afterwards. 
  4. Security screening will be staggered for social distance to be maintained. The Court is looking into obtaining contactless thermometers to allow for non-invasive temperature measurement.  If anyone at Court displays symptoms, they need to immediately notify and leave the Court (hopefully this won’t occur during intense cross examination…).

Practice Direction PD2 of 2020 – Electronic filing annexures to Affidavits and viewing of subpoenas

All documents are now permitted to be filed electronically. If the documents can’t be filed on the Commcourts Portal, they can be emailed to the Registry to be filed. Hard copies should not be posted or delivered to the Registry except in limited circumstances (such as where a party is self-represented and has no email).

Unless total annexures are more than 2 centimetres, they should be attached to the Affidavit when it is filed electronically. If the documents is more than 2 centimetres an Application should be made to the Registry Case Coordinator who may liaise with the Duty Registrar and Docket Judge.

If the Application is successful, the documents can be emailed to the Court for filing.

Practice Direction PD3 of 2020 – Electronic filing and viewing of subpoenas:

Subpoena viewing appointments should only be made if there is a Hearing within the next 4 weeks or the matter is urgent.

Do I need a lawyer now or should I wait for the Covid 19 crisis to end?

If you are in a Family Law dispute it is always a good idea to get advice. In most situations a good Family Lawyer can assist you to find a fast and amicable solution.

If the fast and amicable solution cannot be found, there are options for FDR such as mediation or arbitration that can be utilised at this time when Court availability is restricted.

If you need a Court option, there will be delays. But bear in mind the Court system was experiencing delays (largely due to lack of funding) before Covid 19 reared its ugly head. This means when Covid 19 goes away it will be busy, and it is a fair assumption that non urgent matters will be prioritised “first in time”. 

Financial uncertainty is another factor in preventing people seeking help. At Hooper Family Lawyers we can explore options such as deferred fees, Legal Aid and fixed fees to assist with the financial burden. 

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Family Lawyers can assist you with practical advice. 

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.