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COVID-19 – The Family Law Side Effects

Mar 19, 2020

Carr & Co

By Jorja Brady

The impact of COVID-19 on an individual’s health has been publicised extensively in the media. Some less widely publicised side effects of the pandemic are those which it will have on a party to a family law case. The specialist team at Carr & Co are focusing on those effects to ameliorate symptoms and to improve the prognosis for our clients.

Some of the effects of the COVID-19 pandemic are likely to impact all parties to a family law case and others will only affect a party to a parenting case or be experienced by a party to a financial matter.

General Side Effects – Changes at the Family Court

The Family Court of Western Australia notified the Family Law Practitioner’s Association on 19 March 2020 that it has made changes to its operations to accommodate social distancing.

This will impact all parties currently involved in or who become involved in a case in the Family Court.

In particular, the Court:

  1. Has restricted entry to its precinct and buildings by any individual experiencing flu-like symptoms or who has travelled overseas in the last 14 days.
  2. Recommends that only legal practitioners, parties, their support person (if applicable) and witnesses attend court hearings.
  3. Is still maintaining its registry services, including facilitating inspection of subpoenaed documents and providing procedural advice. However, those services are currently under review.
  4. Will be conducting directions hearings and interim hearings by telephone wherever possible.
  5. Has noted that personal attendance at conferences is at the discretion of an individual judicial officer.

It is possible that the Court may need at some stage to close for a period of time and more than likely, at short notice, just as the Sydney registry of the Family Court and Federal Circuit Court in Sydney had to close this week as a result of a legal practitioner testing positive for COVID-19.

Should the incidence of applications being filed as a result of COVID-19 issues or, the Court being required to limit or cease its operations temporarily, I expect that the Court may have to undertake a triage exercise to determine which matters require an urgent listing and those that can wait and as would be appropriate, priority will be given to those matters assessed by the Court as requiring urgent attention.

I anticipate that there will also be some longer term impact to the delay in the progress to trial of family court matters as a result of COVID-19. Although, at present it is difficult to predict what the complete extent of that impact will be. I have confidence that the Court will do what it can to minimise the impact of the pandemic on litigants.

Parenting Cases

Parties to a parenting case may encounter the following side effects:

  1. International travel

The Australian government has advised Australians not to travel overseas and for those Australians presently overseas to return as soon as possible by commercial means. In addition, the government has imposed on all individuals who have travelled overseas and returned to Australia a mandatory 14-day period of self-isolation. Any individual who does not adhere to the government’s directive, may incur a fine of $50,000 or suffer other penalties.

The quantum of the fine clearly demonstrates the government’s view about the seriousness of the virus and the importance of isolation on ‘flattening the curve’ and preventing wider societal contamination in Australia.

In a recent statement, the Chief Judge of the Family Court of Western Australia, Gail Sutherland said the court had not seen an increase in applications for parenting orders arising from concerns about COVID-19 as yet.

The Chief Judge said it would be wrong and potentially confusing for the public if the Family Court were to produce general guidelines about any impact of concerns about COVID-19 on parenting cases.

“When the court is deciding a parenting dispute, the best interests of the child are the paramount consideration,” she said.

“In any case, the determination of those best interests can be multifaceted and complex and will depend on the individual circumstances of the particular family.”

“Like all members of the public, parents with cases before the Family Court should pay careful attention to information and guidance provided by Government and the health authorities.”

Given the current recommendation of the Federal Government, the Family Court will more than likely only allow applications for parenting orders to permit children to travel internationally in circumstances where it can be demonstrated that it is clearly in the child’s best interests to travel. I expect that it will be difficult to demonstrate that international travel is in a child’s best interests given the current international climate and parents should be aware that any application which seeks non-essential international travel for a child for the time being, may not be prioritised for hearing by the court and if a hearing is allocated, the application may not be successful.

Factors which may assist an applicant, I expect, would include that:

  • the destination is not included on a current DFAT ‘no-travel’ list;
  • measures have been taken by the applicant parent to protect the subject child or children from exposure to unacceptable risk whilst in airports, in transit and in any anticipated large crowd situations whilst overseas; and
  • the impact on the child or children of not being able to attend school, extra-curricular activities and spend time with the non-travelling parent, including upon their return during their isolation period being addressed.

Applicant parents will need to include in an affidavit sworn in support of their application, evidence about these issues, proposals for make-up time should the non-travelling parent’s time with a child be affected and how they propose to facilitate a child’s relationship with the non-travelling parent during any period of travel and isolation upon return, for example, by proposing regular telephone and Skype or Facetime communication.

Parents should also consider the prospect that if they are not a permanent resident in Australia or an Australian citizen that they may not be permitted to return to Australia if they travel overseas.

  1. Interstate travel

WA Premier Mark McGowan, has recommended that West Australians reconsider the necessity to travel interstate and avoid non-essential travel.

Whilst there is presently no requirement for an individual to enter a period of self-isolation after returning from interstate travel, this may be where the regularly changing COVID-19 situation is heading.

Carr & Co have very recently successfully opposed an application by a parent for a parenting order to permit interstate travel for a child on the basis that the court was aware of the government’s recommendation regarding interstate travel and in light of its awareness, the risk the travel posed to the child, the lack of necessity of the travel and the fact that Western Australia was the child’s home state, the court could not be convinced by the applicant parent that the proposed travel was in the child’s best interests.

As with international travel, an applicant parent seeking parenting orders to permit interstate travel should be aware that their application may not be prioritised or ultimately successful. In order to increase the chance of success, it will be necessary to include in a party’s affidavit sworn in support of the application, evidence about how risk issues are proposed to be managed, why the proposed travel is necessary, proposals for make-up time should the non-travelling parent’s time with a child be affected and how the party proposes to facilitate a child’s relationship with the non-travelling parent during any period of travel.

  1. Handover locations

Existing parenting orders are likely to have been made in circumstances when COVID-19, or indeed any other pandemic, was not an anticipated issue. A handover location specified in an existing parenting order may be a public place, such as a child’s school, extra-curricular activity facility, restaurant/café, park or playground.

Parents should contemplate early alternative options for a handover location, as it is possible that some or all of the public locations mentioned, in the not too distant future, will close or it will pose an unacceptable risk to a child to take them there.

It may be necessary for the handover location and time specified in a parenting order to be adjusted by agreement, for example, for the location to relocate temporarily to parent’s homes and for handover times to be amended as a result of increased travel time which a new handover location may involve. Parents should be pro-active about sensibly proposing options to the other parent to ensure the best interests of their child are promoted.

  1. Breaching parenting orders

A parent who has existing parenting orders which govern with whom their child lives or the time which their child spends and communicates with the other parent may be held to be in contravention of a court order if they do not have a reasonable excuse for breaching the order.

We are unable to predict how the court will view a breach to a parenting order as a result of COVID-19 concerns, particularly in the absence of any specific guidelines issues by the court. However, given the court is suggesting parents follow official health guidelines, I expect that if a parent is purposefully not following health guidelines and exposing a child unacceptably to risk of contracting COVID-19 and the other parent breaches an existing parenting order to prevent their child being exposed to that risk, this situation will be viewed pragmatically and with some level of sympathy.

If a parent proposes to breach a parenting order by refusing to hand over a child because of a concern about the risk of the child being exposed to COVID-19 in the other parent’s household, if they must defend themselves in relation a contravention or recovery order application by the other parent as a result, they should be prepared to provide evidence to the court about the specific risk(s) to the child which they are concerned about, including specific medical evidence, which would likely need to be given by a medical professional.

As with changes to existing parenting orders in relation to handover location and times, I recommend that parents consider early how these types of situations may be addressed and any adjustments to orders are attempted first by sensible proposals being made to the other parent in advance.

Financial Effects

Parties to a property settlement case may encounter the following side effects:

  1. The value of the asset pool
    An integral part of the process undertaken by the Family Court in deciding a property settlement case is to identify and value the property of the parties available for division.This involves an assessment of all of the assets, liabilities and superannuation of the parties, including, assets that were owned prior to a de facto relationship or marriage, those accumulated during and those acquired after separation.I expect that COVID-19 will have a significant impact on the value of the property of parties to a property settlement case in at least the following ways:

    1. The value of any shares held by parties in publicly listed companies will have plummeted, following the decline and the present volatility in global markets caused by the pandemic. This will likely also have affected the value of superannuation interests of parties, where their superannuation or a component of it is invested in shares.
    2. Any valuation which is prepared of a business in which a party has an interest on the basis of 2019 financial year end accounts and does not have regard to the 2020 financial year is unlikely to take account of the inevitable business interruption, reduced demand and supply, employee absences, cash flow issues and other economic impacts of COVID-19 and as a result, be an inaccurate and overstated representation of the value of the business.
  2. For parties that are in receipt or making payment of child support or spousal/ de facto partner maintenance, there may be a basis to seek a reduction or increase to entitlements on the basis of changes to personal circumstances arising from COVID-19 issues. For example, is a payer is made redundant or otherwise loses their employment or experiences a reduction in their work hours, it may be possible to vary, at least temporarily, their obligation to pay child support or maintenance.
  3. If you have very recently agreed to finalise a property settlement on the basis of an asset pool which is now markedly different as a result of value variations caused by COVID-19 and the agreement has yet to be implemented, it may be possible to seek to vary the agreement reached if it is now impracticable or manifestly unfair. You should seek legal advice if you are in this situation, although, it should be noted that demonstrating impracticability can be difficult and simply because something is unfair now may not be sufficient.
  4. Superannuation splitting orders included in agreements prepared now should take into account the volatility in the economy and resulting impact on member entitlements and rather than utilising a fixed sum superannuation splitting arrangement, look instead at whether expressing a splitting order as a percentage may be a more equitable approach.
  5. As businesses struggle in a declining economy the incidence of insolvency and bankruptcy I expect will increase. The interplay between issues of insolvency and bankruptcy in a family law matter can be complicated and specialist advice should be sought from a family lawyer if these issues arise or look likely to impact you.
  6. There may need to be some adjustments made to interim arrangements regarding assets, for example to ensure equity positions are maintained, leveraging issues are managed, cash flow of a business is ensured or expenses to maintain assets continue to be met. If possible, before these issues become urgent, detailed proposals should be provided to any other relevant party to try and manage such situations in a considered and strategic way. It is, after all, in all party’s interests to try and maintain the value of their assets.

Just like the COVID-19 pandemic continues to change daily, the effects of it in a family law context are likely to also continue to grow and develop. If you have any specific concerns or queries regarding the impact of COVID-19 on you or your family, you should contact the specialist family lawyer’s at Carr & Co for tailored advice.