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.
- 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.
- Consistent with best interests is continuing to comply with Orders for time and communication.
- 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.
- 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.
- 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.
- 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.
- Lawyers such as Hooper Mill Family Lawyers can also assist with mediation service and helping negotiate an agreement.
- If necessary, Consent Orders can be filed electronically.
- 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.
- 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.
- Act reasonably. Section 70NAE Family Law Act 1975 makes “reasonable excuse” a defence to a contravention and therefore a matter relevant to the court.
- If the strict letter of the orders cannot be adhered to, parents should ensure the purpose or spirit of the orders is respected.
- If there is some immediate danger to a child contact the police.
- 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 Mill Family Lawyers can assist you with practical advice.
We are family lawyers servicing all areas in Brisbane and on the Gold Coast.