April 14, 2020

Navigating the impact of COVID-19 on Family Law Issues


By Josephine Sergi

All of us have been inundated with information about the impacts of the COVID-19 pandemic on every aspect of our lives, from where to find basic life essentials to the question of whether life will ever return to normal, economically, socially or otherwise.

For separated families, who already face challenges navigating and adjusting to significant life changes, the additional complications arising from the COVID-19 pandemic adds another layer of difficulty to what is usually, and already, the most difficult time of people;s lives.

Pandemic-related complications are arising across all areas of family law, no matter at what stage of the process parties may be at. These include:

Property Settlements

Valuations are uncertain, share markets have dropped, incomes are affected, and there is no way to know how long before any certainty is regained in relation to financial matters. How then do parties negotiate a property settlement in this climate?

Courts are continuing to hear matters, and make decisions, notwithstanding these uncertain financial times. Valuations still need to be obtained. There maybe benefit to one party to delay, while the other may want to progress things to resolution as quickly as possible. There are still options available to parties in these circumstances and each case needs to be individually assessed before assumptions are made that a property settlement cannot proceed until the pandemic is over.

Please see here for court practice directions indicating new procedures.

 Parenting arrangements

Self-isolation can be difficult when children spend time between two households. Parties have been strongly encouraged by the Chief Justice of the Family Court of Australia, His Honour Chief Justice Alstergren, to adhere to parenting arrangements and ensure children are able to continue spending time with both parents. However, there are inevitably situations where this cannot occur, including where one parent is at high risk of exposure, distance issues and other barriers. In these circumstances, parents are strongly encouraged to work together to achieve practical solutions to these issues which may include maximising  electronic communications and make-up time when it safe to do so.

Where a practical solution is not able to be reached, parties are able to make application to the court to find a resolution, but this should always be a last resort and legal assistance should be sought before embarking on this course. It is also still necessary, if agreement cannot be reached, for parties to engage in family dispute resolution to try and negotiate a resolution. Most family dispute resolution providers are still available to facilitate this via electronic means.

Please see here for information by the court on parenting orders during COVID-19.

Child support

The loss of income for either one or both parents will necessarily have an impact on child support payments. These changes in circumstances should be communicated to the Department of Human Services (Child Support) (‘the Child Support Agency”) without delay, and the parent receiving payments should also contact Centrelink to ensure they maximise any family law benefit they may be entitled to as a result of the changed circumstances.

These issues may be more difficult, however, when parties have an existing binding child support agreement which can only be terminated in very specific circumstances, or when child support payments include school fees and other expenses paid on behalf of children. In these circumstances, each case needs to be assessed individually to see whether there are options which maybe available to deal with the problem. It is possible that the current circumstances are so exceptional as to provide grounds to apply to the Court to set aside the binding child support agreement. Given the costs associated with such a course, however, and the possibility that the change will be temporary only, the parties may wish to see if they can negotiate some interim, alternative arrangements.

Family violence

It seems inevitable that as a result of the “pressure-cooker” environment arising out of financial difficulty and social isolation- essentially being physically cut-off from extended family and friends and even school, who may otherwise have been an outlet for parties and children experiencing family violence- that incidences of family violence will escalate. Escaping family violence is an express exemption from “stay at home ” restrictions and the Government has taken positive steps to ensure victims still have somewhere to go. However, the victims may feel they do not have the same opportunities available to leave such an environment, when the perpetrator is always at home. Persons experiencing family violence who may feel they have limited options in the current restrictions should ensure police are called and/or they communicate to family or friends or other available services to ensure their safety.

Please click here to resources for persons needing assistance with family violence

Where to next?

As the pandemic and the consequences of it evolve, so will the difficulties separated families face. The team at Kennedy Partners are able to discuss your personal situation and advise as to the options available and what may be the  most appropriate way forward and how to get there.