Many parents who have been in a Parenting Dispute know the challenges that come with it. Since (what feels near pre-historic) early 2020, COVID-19 has served up a new batch of challenges that parents may encounter and need legal advice to overcome.
As we adjust to the “new normal” of COVID-19, parents are faced with the obstacles of complying with an Agreement or Order during the times of lockdown, curfews, travel restrictions and border closures which have left them asking “How does it affect me?”
NSW Health and the newly merged Federal Circuit and Family Court of Australia (the Court) has made it clear that, where it is reasonable to do so, parties with arrangements in place should continue to honour those arrangements; whether formal or informal.
There are many questions on whether travel restrictions apply to parenting arrangements – in most cases they do not apply. However, further questions often arise, for example, what if my ex-partner is self-isolating as they have returned from overseas or were a close contact? What if my child has a compromised immune system and it is not safe for them to travel? What if my ex-partner is a front-line health care worker? What if our current orders are suited to schooling? My work arrangements have changed, can I now spend more time with my kids?
Unfortunately, there is no uniform answer to the above questions, in some circumstances parties, through negotiation can come to amicable agreements with the best interests of their children in mind. Although for others this is not possible and with that in mind the Court formed the National COVID-19 List.
The Court established the National COVID-19 List (The List) to deal with family law disputes due to the COVID-19 pandemic. It serves as an avenue for parties involved in ongoing or future family law arrangements and disputes to resolve their matters in a timely and effective way suited to their circumstances.
To be eligible for the list, the court must be satisfied you meet all the following criteria:
- You’re filing an application as a result of the COVID-19 pandemic
- Your matter is urgent or needs priority
- If safe to do so, you have made reasonable attempts to resolve the issue but were unsuccessful
- Your matter can be dealt with using telephone, video link or some other electronic means.
When filing, you must also file an affidavit addressing the above criteria.
In what circumstances can I file?
The court has allowed flexibility around what matters can be dealt with in the COVID-19 List, matters eligible for the list involve:
- Family Violence – if there has been an escalation or increase in risk in family violence due to COVID-19.
- Vaccinations – if there is a dispute about a child receiving a COVID-19 vaccination.
- Medical – the parties cannot fulfil parenting obligations due to a party or child testing positive for COVID or being forced to quarantine as a close contact.
- Travel arrangements and border restrictions – where parties live in different states or are under travel restrictions
- Parenting arrangements involving supervised contact – where the contact centre is closed, or a supervisor cannot attend
- Financial and Maintenance Issues – due to financial hardship caused by the COVID-19 pandemic
- Alteration of time in accordance with family orders – where time must be suspended due to COVID-19 restrictions or there has been non-compliance.
- Employment – you are a front-line worker or have had your employment arrangements altered due to COVID-19.
When can I expect my matter to be dealt with?
If your application has met the criteria required, you can expect a first return date within three to seven business days depending on whether the Court is satisfied that the application is urgent.
If your application has not met the COVID-19 List criteria, you will be notified, and your application will be sent to the nearest court registry and dealt with in the normal process of family law matters.
Given that the Public Health Order changes on a regular basis, the Court strongly advises parties contact their relevant State or Territory authorities regarding the current border restrictions or quarantine requirements that may be in place.
If you have questions around your compliance with your current orders, feel orders need to be put in place or want to explore a pathway best suited to your circumstances, please be in contact with our family law team who will be more than happy to assist you.