Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
Coronavirus and Family Court Orders
People with child custody arrangements have questions about the effect of coronavirus and family court orders.
We are receiving a myriad of questions that are starting to arise in the current situation:
- In the event that a changeover with children needs to take place at a public location or a school, and there is a lockdown, where will changeover take place?
- In the event that there is a lockdown and parents are required to stay indoors, how will parents effect changeover?
- If a lockdown is announced and the parent that has the child is not the primary carer of that child, then should that parent hold on to the child during that period of the lockdown?
- Should I still follow Family Court orders while the Coronavirus is still a threat?
- If the family Court orders are breached during this period, should I file a contravention application?
- Is withholding the children during this period and breaching orders a reasonable excuse given the current threat of coronavirus?
- What is happening with my court date with the threat of coronavirus? Will it still be going ahead?
We’ll do our best to answer these questions in this article.
Update from 30 March 2020 in NSW
In the context of family law we thought we would give some clarity in relation to the new directions made in NSW today:
1. The Minister directs that a person must not, without reasonable excuse, leave the person’s place of residence.
2. A reasonable excuse for a person to leave their residence would be to continue existing arrangements for access and contact between parents and children or siblings, for children who do not live in the same household as one of their parents or siblings.
3. The Minister directs that a person must not participate in a gathering in a public place of more than 2 persons.
4. Exceptions: a gathering necessary for the person to fulfill a legal obligation.
From this, we gather that parents are still required to facilitate time with one another if the circumstances allow them to do so.
Our General Advice As Family Lawyers
The main point to remember is that court orders need to be followed.
In the event that you want to change setting arrangements in the court orders then you should try and communicate with the other party. If you cannot communicate with them, try to communicate through a third party or through your lawyer.
Use this as an opportunity to co-parent with the other party.
Do not use this as a situation to take advantage of the other parent and to increase your time with the child.
Instead, work towards a compromise that maybe both parties feel a little pain but agree on something with the best interest of their children in mind.
Absent an alternative visitation and access agreement in writing; we recommend following your order for visitation.
In the event that the orders require you to effect changeover at a school and the school is closed unless there is an agreement in place that the location for changeover has changed, you should still affect the changeover at the school.
We are currently unsure as to what the definition of a lockdown is going to be and what restrictions will be in place. The conditions of the lockdown will have a direct effect on the legal advice for the time there is still an interaction between the coronavirus and Family Court Orders
Advice from the Chief Justice of the Family Courts
Chief Justice Alstergren circulated a message on 26 March 2020 on the Family Court website. The key takeaways from the message are listed below:
- Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders.
- If an agreement has been reached and consent orders have been developed to outline new or varied parenting orders, consent order applications can be filed electronically with the Court. This process is quick and usually conducted without a hearing.
- If the parties are unable to agree to vary the arrangement, or if it is unsafe to do so, and one or both parents continue to have real concerns, the parties are at liberty to approach the Court electronically and seek a variation of the orders
- Where there is no agreement parents should keep the children safe until the dispute can be resolved. Also during this period of dispute, parents should ensure that each parent or carer continues to have some contact with the children consistent with the parenting arrangements such as by videoconferencing, social media, or if that is not possible, by telephone.
- It is imperative that, even if the 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.
Contravention Applications During Coronavirus Period
Firstly ask yourself, is what I am doing in the best interests of the children?
If I were before a family court judge, would I be considered to be unreasonable?
We strongly suggest that in the event that you are considering breaching court orders, you obtain independent legal advice.
Right now, there are no cases that we are aware of where there has been a similar situation and therefore there are no precedent cases to work off. We are entering into new territory here and it is very hard to make an assessment as to how the courts will react to this situation.
To accuse someone of contravention of an order, you must file the following documents in court:
- An application for the contravention of an order
- A supporting affidavit
- A certificate from a family dispute resolution practitioner, or an affidavit for non-filing of a family dispute resolution certificate
- A copy of the existing orders
It is important to remember that the person who has contravened the order may rely on the defence of reasonable excuse, which is explained below.
The court accepts reasonable excuses for contravention of court orders on these grounds:
- The person believed on reasonable grounds that their actions causing the contravention were necessary to protect the health or safety of a person, including themselves or the child, and
- This contravention did not last any longer than was necessary to protect the health and safety of the above person
It very well may be the case that the person who has contravened the orders may be able to establish that the current situation with the coronavirus has given them a reasonable excuse to breach the orders.
Based on the individual circumstances, they will need to establish that their actions were necessary to protect the health or safety of a person, including themselves or the child and that the contravention did not last any longer than was necessary to protect the health and safety of the above person.
Withholding children during Coronavirus
The situation becomes more serious when one parent withholds a child from visitation with the other parent.
A custodial parent may do this for a whole range of reasons.
It may be to get the other parent to pay child support, to spite their ex, or now, it could be because they fear that their child will become a risk because of the coronavirus.
A judge will frown upon a parent violating a visitation agreement for the purpose of obtaining past-due child support payments, however, we are unsure at this stage as to how a judge will view withholding a child during this situation.
What we are sure of, is that every case will be determined on the individual merit of what that ‘risk’ is. It will be up to the parent that is breaching the court orders to establish that they had a reasonable excuse to breach the orders.
If a parent withholds parenting time, the parent with no contact should record the dates and times and request make-up time. They would have strong grounds for applying for makeup time if the only reason as to why the time was withheld was because of the coronavirus situation.
Family Court and Coronavirus
The Family Court and Federal Circuit Court schedules are being updated almost on a daily basis to adjust for the coronavirus.
The initial attitude of the courts was to maintain all listing as per usual.
Over the past week, both courts have introduced new policies to make adjustments for the virus. In summary, they are as follows:
- All directions hearings and mentions will be done by telephone unless there is a reason as to why it cannot be done by telephone
- Courtrooms are going to be limited to a maximum of 8 people per room (excluding the judge and court staff). There is strict protocol in place for face to face hearings.
- If there are contentious court matters (interim or final hearings), then they potentially will run in person
- Urgent children matters will take precedent over property matters
- Parties should be ready for changes to the court schedule at any time given the current situation
- Lawyers are encouraged to agree to orders by consent prior to any hearings
- All Child Dispute Conferences will be conducted by telephone. Parties will be sent dial-in details. There will be no requirement to attend Court in-person.
- Family report interviews scheduled will proceed as arranged, unless the parties are advised otherwise by CDS, but will be conducted consistent with social distancing principles as far as possible.
- To facilitate matters being dealt with electronically, legal practitioners and parties must file all documents electronically through the Comcourts portal
- If documents are unable to be efiled, then they should be emailed to the relevant registry
- Do not post or deliver hard copies of documents. There is an exception if you are unrepresented and unable to email documents.
- Subpoena viewing at all Court registries is by appointment only. Requests for an appointment should be made by emailing the relevant registry
- Lawyers and parties should only make appointments to view subpoenaed material in limited circumstances. This means that if they have a matter scheduled for hearing in the subsequent 4 weeks.
We are entering into unchartered waters and we try to provide consistent updates.
The Courts must adhere to the restrictive requirements which are necessarily imposed by the Government.
As a result, they cannot administer justice in the usual way, and significant changes have had to be made.
The Courts will continue to conduct court work within current parameters based on the advice of the government.
Relaxing of Rules on Signatures on Documents and Affidavits
The courts have relaxed their approach to having original signatures on documents and affidavits.
Documents, including affidavits, financial statements and consent orders may be signed electronically by the deponent and/or the lawyer on the record for that party.
You may sign the document by typing your name in the relevant space in the signature block in lieu of physically signing the document.
The Courts will accept for filing affidavits (other than where part of a divorce application) and financial statements that have been signed without a qualified witness also signing the document, subject to, if the judicial officer requires it, the deponent of the document being made available by telephone or videoconference or in person, at a subsequent court event, to swear or affirm that the contents of the document are true and correct to the best of their knowledge, information and belief.