The COVID-19 pandemic – Q and A about family law

The COVID-19 pandemic and its effect around the world has drastically changed the lives of all Australians.  New rules and restrictions on a State and Federal level are being introduced almost daily, changing the way we interact with others in an unprecedented manner.  In family law matters, COVID-19 has meant we are constantly updating how Orders are to be interpreted and how Court proceedings are to be conducted.

As at 1 April 2020, we can confirm:-

1. The Federal Circuit Court of Australia and the Family Court of Australia are open.
2. Matthew Love Family Lawyers is open.

We have been inundated with calls from clients concerned about the COVID-19 pandemic and its effect on the family law matters.  We answer some of the common questions that are raised by our clients:-

1. I have final Parenting Orders, but the new laws regarding social distancing and shut-downs mean that some Orders are no longer practicable.  What can I do?

On 26 February 2020, the Honourable Will Alstergren, Chief Justice of the Family Court of Australia issued a press release outlining how parties who have already obtained Parenting Orders should navigate co-parenting in the current climate.  You can read the press release here [http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/mr260320].

It is important to note that the current climate does not give a party to an Order license to unilaterally change an Order of the Court.  An Order must be complied with unless the parties otherwise agree to vary that Order or the Court has amended the Order. 

In summary, parties who have a Parenting Order that is no longer practicable must:-

• Negotiate resolution with the other party to address any deficiencies in the Orders. 
  
  If the parties’ reach an agreement, that agreement should be recorded in writing to avoid any confusion or misinterpretation of same.  While text message or email correspondence is sufficient, you should give consideration to formalising your agreement either as a Parenting Plan (which is a written agreement signed by both parties which is not binding but is evidence of the agreement reached), or as Consent Orders (which are submitted to the Court for approval and are enforceable at law).

• If direct negotiations do not resolve matters, parties should consider mediation or family dispute resolution counselling (“FDR”).  This is when the parties attend on a mediator of FDR counsellor who assists the parties to negotiate agreement. 
  
  Most law firms are offering video or teleconferencing as a solution to the social distancing rules so there is no impediment to mediations occurring.

• If parties are unable to negotiate resolution, the next step is to file an Application in the Family Court or Federal Circuit Court of Australia (whichever is appropriate) and seek the Court’s intervention.  The Courts are still operational and are hearing Applications for parenting matters where parties are unable to reach agreement.

If you are experiencing any difficulties with interpreting Orders and/or need to negotiate new terms, contact one of our solicitors today and we can help you navigate this process.

2. My partner and I have agreed how we are dividing our property matters, but we don’t know what to do. How can we record our agreement?

When parties reach an agreement dividing the assets and liabilities of the relationship, there are two options for formalising same:-

1. Consent Orders; or
2. Binding Financial Agreement.

An Application for Consent Orders is filed in the Family Court of Australia, together with the signed proposed Orders the parties request the Court to make.   The Application sets out all assets and liabilities of the parties, financial resources and summarises why the Court should make the Orders sought.  The Minutes of Consent Orders sets out the terms of agreement. 

The Court must be satisfied that the proposed Orders are just and equitable, having regard to the steps set out in sections 79  and 75(2) of the Family Law Act 1975 (for married parties) or sections 90SM and 90SF(4) (for de-facto parties).

If the proposed Orders are just and equitable, the Orders will issue and the parties will receive a sealed copy of the Orders.  Neither party will need to physically attend Court as the Application is considered in Chambers. 

Binding Financial Agreements are agreements made pursuant to sections 90B to 90D of the Family Law Act 1975  (or sections 90UB to 90UC for de-facto couples). 

Unlike Consent Orders, the Binding Financial Agreement is not submitted to the Court for approval.  Rather, for the Agreement to be binding on the parties, it must satisfy the requirements of section 90G (or section 90UJ) in that:-

1. The Agreement must be in writing
2. Before signing the Agreement, each party must be provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time the advice was provided, to that party of making the Agreement;
3. Each party must be provided with a signed statement by the legal practitioner stating that the advice set out in the preceding paragraph was provided to that party and a copy of that statement provided to the other party or their solicitor; and
4. The Agreement has not been terminated or set aside by the Court.

Importantly, parties who have reached agreement must be aware that unless your agreement is evidenced in one of the ways set out above, it is not binding and either party may apply to the Court for Orders for property division, irrespective of any informal agreement reached.  A party may bring an Application for property division at any time up to 12 months after a divorce is made final or 2 years from the date of separation, whichever is applicable.

For both Consent Orders and Binding Financial Agreements, we can conduct our consultations with you by video call or telephone and receive your supporting documents by email or post.  We can minimise the need for face-to-face meetings and as neither option involves physically attending Court, we can ensure that all interactions comply with the rules regarding social distancing and isolation.

If you and your spouse/partner have reached agreement on your property matters, we can assist in formalising same.  Contact our solicitors today and ask about our fixed-fee arrangements for Consent Orders and/or to discuss your property matters further.

3. My parenting/property Application is in Court.  How has COVID-19 affected my proceedings?

As at 1 April 2020, the Family Court and Federal Circuit Court of Australia are open and Applications are being heard.  It follows, therefore, that your attendance at any upcoming hearing is required (unless you have already been excused from same by the Court). 

Considering the COVID-19 restrictions, the Courts have adapted how family law proceedings are managed, which include:-

• The Court Registry services will be conducted remotely, by telephone or through online services.  Face-to-face communications will only occur in urgent circumstances, if it is considered appropriate to do so.

• All documents must be e-filed or e-lodged.  If they are unable to be e-filed, the documents are to be emailed to the Court registry for electronic filing.  If you do not have access to email, you will need to telephone the Registry for assistance.  There are specific directions regarding the filing of Affidavits, which can be viewed here  

• Where possible, hearings will be conducted by telephone or videoconference.

• If your matter is postponed, the Court will notify you before the Court date and/or if the attendance will be facilitated by telephone.

• If you are required to attend Court in person (which is unlikely), the Court has adopted the following protocol:-

• Listings will be staggered to reduce the number of people waiting in the foyer/registry building.
  • Matters will not be listed for more than 1.5 hours, with sufficient space in between to allow cleaning to occur;
  • No party is allowed in the Courtroom prior to their matter being called.
  • No more than 8 people (excluding the Registrar and Court officer) should be in the Courtroom at any one time.
  • Parties are to adhere to social distancing rules while in the Courtroom.
  • Parties are to promptly exit the Courtroom and building at the conclusion of their hearing.

You can read more about the Court protocols and practice directions here:-

• Federal Circuit and Family Courts of Australia Joint Practice Direction 2 of 2020 http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/rules-and-legislation/practice-directions/2020/jpd022020

• Family Court of Australia – COVID-19 Update: Information for Parents
  http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/covid-info-parents