COVID-19 has upended daily life, no more so than for separated parents. As the government’s directives become more restrictive, the proper observance of parenting orders and or informal parenting agreements will likely become increasingly difficult and, in some cases, impossible.
His Honour William Alstergren, the Chief Justice of the Family Court and the Federal Circuit Court of Australia, has spoken on Triple M Melbourne, providing cogent advice to parents: https://www.youtube.com/watch?v=jqgSVmJnbu0
In summary, His Honour assures the Australian community that firstly (and most importantly) the Family Law Courts remain open to assist parties, particularly with urgent parenting applications. The Courts, and by extension lawyers, are considered essential services that will continue to operate and provide support to our community during these trying times. However, in an effort to promote social distancing and reduce the number of attendees at court, the Courts have had to modify their practices. Non-urgent parenting and property applications will likely be adjourned until later in the year and hearings that can be conducted by way of a telephone or video conference or by written submissions, will be.
Thus, to avoid the overburden of our court system His Honour, as a first port of call, urges parents to try to work things out between themselves. He encourages parents to put aside their personal conflict and try to resolve any practical issues between them, provided it is appropriate and safe for parties to speak directly and, if not, they should seek the assistance of lawyers and or mediation services. His Honour calls for parents to be reasonable, adaptive and collaborative in these unprecedented times. Parents and carers must still observe court orders and / or parenting agreements in so far as it remains practical to do so and in the children’s best interests, including having regard to the children’s health and safety as a primary consideration.
Where it is impracticable for parents to strictly observe court orders, parents are encouraged to apply ‘common sense’ and look for practical solutions. For example, if the Court orders provide for changeover to occur at the child’s school or other public venue which is no longer an appropriate location for changeover to occur, parents are encouraged to start a dialogue with the other parent and suggest alternative locations, for example an equidistant petrol station or offer to deliver the child to the other parent’s residence.
It is important that any agreed changes to parenting orders or agreements be confirmed in writing (i.e. recorded in an email or text message) in case there is any dispute about the terms of the agreement at a later date. Parents should have copies of all court orders and or agreements printed and ready to present to authorities should they be required to explain their need to travel over a considerable distance or over state borders (if possible).
Parents should not however use the pandemic as reason to unilaterally withhold children and prevent them from seeing the other parent, unless they have a reasonable cause. Reasonable cause may include if the other parent has tested positive for COVID-19 or government mandated travel restrictions genuinely prohibit changeover to occur. In those circumstances the resident parent should continue to facilitate regular and frequent communication between the child and other parent via telephone and other electronic means (unless where there are orders to the contrary). Maintaining some semblance of normalcy for children including maintaining the children’s meaningful connection with the other parent should be at the fore of parents’ minds.
In extreme cases, where parents require court intervention, they can be assured that they will still be able to make applications to the Family Law Courts, for example to seek the urgent recovery of a child, to reinstate their previous parenting orders or have new orders made in their stead.
In cases involving family violence parents are urged to call Victoria Police and or call their local Magistrates Court regarding the making of an application for an intervention order. Pursuant to section 68R of the Family Law Act 1975, the Magistrates’ Court is empowered to make orders to ‘revive, vary, discharge or suspend’ a parenting order (amongst others) provided the Magistrates Court has before it material that was not before the original Family Law Court when making the original orders. This could, for example, include government directives restricting movement or mandating social isolation as a result of the current pandemic. That is, where an application for a family violence intervention order comes before a Magistrate, the Magistrate (either on their own initiative or pursuant to an application made by any person) may make or vary an intervention order which would in effect ‘trump’ an existing parenting order or injunction (originally made by the Family Law Courts) if and only if there are new circumstances which warrant such an order being made.
Nicholes Family Lawyers are monitoring the government’s directions very closely and our lawyers are available to take phone calls or make virtual appointments to assist you negotiate new parenting arrangements or to issue urgent court applications on your behalf should it be necessary. Please do not hesitate to contact us on 03 9670 4122.