Family law – 15 tips for advising family law clients in a coronavirus pandemic - Wolters Kluwer CCH
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Family law – 15 tips for advising family law clients in a coronavirus pandemic

Jacky Campbell

By Jacky Campbell, Partner at Forte Family Lawyers

  1. Courts:– It is possible that the COVID-19 pandemic will at some stage cause the Family Law Courts to close for a while and at short notice. Presumably, they will give priority to more urgent matters, not hearings that can wait. Telephone hearings will become more frequent. Clients should, where appropriate, try to settle their cases through negotiation, family dispute resolution, mediation or arbitration and not rely on the already under-resourced courts being able to hear their cases promptly. Alternative dispute resolution is always sensible, but even more so now.
  2. Parenting time:- Parenting orders were made without pandemics in mind. They may not fit the changed circumstances. For example, if sporting activities are cancelled is there an alternative activity where the child can see the parent? Interstate travel may be impacted at some stage – how can communication between a parent and a child living in different States or Territories be maintained?
  3. Changeovers:- Many changeovers take place at locations which may close, such as schools and take-away outlets. Think about alternative venues now. If the separation was some time ago and tensions have reduced, it may be time to re-think whether changeovers can occur at parents’ homes.
  4. Family violence:- As couples may spend more time together and be more anxious, family violence may increase.  Lawyers should be alert to this and encourage appropriate referrals for police, therapeutic and other assistance. 
  5. Alternate caregivers:- If child care facilities and schools close, parents (or other younger family members) may be a better option than grandparents who may be more at risk of serious illness due to their ages. If one parent is working from home maybe they can increase their time with the children? What if one or both parents are sick and unable to care for the children for an extended period? Discuss back-up plans now.
  6. Breaching parenting orders:- A party may be held in contravention of a court order if they do not have a reasonable excuse for breaching the order. Predicting what a court will consider to be a reasonable excuse is difficult, but a complaint that one parent does not have the same standards of hygiene as the other parent is unlikely to be a reasonable excuse. What if one parent has contracted the coronavirus but has few symptoms or has been in close contact with someone who has it? Parents should try to work out how they will deal with these situations in advance. Different families will have different views and different solutions.  If a parent proposes to breach a parenting order by not handing over a child because of the risk of infection in the other household, specific medical and other evidence about the risk to the child will be required to defend any contravention application.
  7. Intervention orders:- These are unaffected by the coronavirus. If the terms of the order don’t allow parties to re-negotiate between themselves changes to parenting arrangements such as the location of changeovers, the parties should seek legal advice.
  8. Child support and spousal maintenance:-There may be grounds to seek an increase or decrease if a parent has no work, is made redundant or has a reduced income.  DHHS – Child Support may be able to assist or legal advice may need to be sought, particularly if there is a binding child support agreement.
  9. Property settlements:- Court orders and financial agreements which set out the terms of a property settlement but have not yet been implemented may seem unworkable or unfair due to changes in personal circumstances and/or the economy. It may be worthwhile obtaining legal advice as to whether the order or agreement can be reviewed, but the test for impracticability is a high one. It is not enough that it has become unjust or difficult for the order or agreement to be carried out.
  10. Superannuation splits:- These are often expressed in dollar terms. Given the volatility in the share markets, percentage splits might be preferred in the next few months. Also, if allowed by the fund, matching the operative date gives greater protection to clients. Splitting orders and agreements should be served upon the trustees of superannuation funds promptly.
  11. Business valuations:- Consider putting these on hold. Many businesses will be adversely affected by reduced demand, staff absences and the like. A valuation that takes into account the 2018/2019 financial year but not the 2019/2020 financial year may wildly over-state value.
  12. Overseas travel:- It is a parent’s decision as to whether that parent can travel overseas – subject to being allowed to do so by the relevant governments. However, if that parent wants to take the children overseas, don’t expect the court to prioritise time for hearing that dispute or that the application will be successful. The parent should also be aware that if they are not permanent residents or Australian citizens, then they may not be allowed back into Australia at all. As of midnight on 15 March 2020, if they are allowed back into Australia they will be required to self-isolate for 14 days which means not seeing the children for that time. There may be fines or other penalties for not self-isolating. Court orders already made which permit overseas travel by children may not be practical or enforceable.
  13. Changing parenting arrangements:- Any agreed changes to parenting agreements should be documented informally by exchange of SMS messages, emails, in a parenting app or letters between lawyers. In some situations the orders should be formally changed.  It is probable that even if the courts are closed, consent orders will be able to be processed by registrars working remotely.  Legal advice should be sought about the best way to document any changes.
  14. Problems of electronic communication:- Communication between parties or between lawyers and their clients that is solely by email or text message can result in misunderstandings.  If face to face meetings cannot take place, encourage calls by videolink, such as Skype and Facetime.
  15. Anxiety:- In times of uncertainty about personal health, employment, family well-being and the purchase of essentials such as food, medication and toilet paper, clients are likely to be more anxious than usual, leading to more parenting disputes. Encourage your clients to try to see the other party’s perspective, recognise the pressures the other party is under and access therapeutic help individually or as a couple.