It is important for families to know that, despite the COVID-19 pandemic, the Family Court of Western Australia remains open. As matters currently stand, hearings and conferences continue to be listed and take place. Wherever practicable, they are being conducted by telephone. Our committed and experienced family lawyers are able to represent you at court hearings and mediations in relation to parenting issues (as well as the range of other family law matters, including child support, property settlement, spousal maintenance and divorce), whether in person or via the phone.
Undoubtedly, the COVID-19 pandemic presents some unprecedented challenges for parents throughout Australia, with particular issues arising for those parents who have separated and whose care arrangements in respect of their children are governed by orders of a family law court. For example, a party may be confused as to whether and in what circumstances parenting orders may be departed fromdue to risks associated with implementing the current care arrangements (such as where a parent either has, or has been in close contact with someone who has,COVID-19).
In consideration of these potential issues, on 26 March 2020, the Honourable William Alstergren, who is the Chief Justice of the Family Court of Australia, released a statement to provide some guidance for parents in relation to parenting orders during the COVID-19 pandemic (a copy of the full statement can be accessed here). The statement sets out the following key points (among others):
- Upholding the best interests of the childrenParents and carers must continue to act in the children’s best interests, including continuing to ensure the children’s safety and wellbeing.
- Compliance with court ordersParents and carers are expected to comply with parenting orders, including in relation to time spent by the children with each parent or carer.
- Circumstances in which parties may wish to agree to a variation of the ordersDue to the current pandemic, it may be almost impossible for parties to comply with a court order (for example, an orderwhich stipulates that contact with a parent or handover arrangements of children occur at a designated place, such as a park or school, which has been closed due to COVID-19).
There may also be legitimate concerns regarding the children’s health and safety in complying with a shared-care arrangement if, for example, a parent either has, or has been in close contact with someone who has, COVID-19.
In such circumstances, the parties may wish to vary the parenting orders.
- Reaching an agreement
The Court recommends that parties communicate with each other and attempt to agree to new or revised arrangements to solve the difficulties they face in complying with their current orders. This should only be done in circumstances where it is safe to do so.The parties are encouraged to look for practical solutions and to act sensibly and reasonably in considering them.
Parties must consider the safety and best interests of the children but also have regard to the concerns of the other parent when negotiating a variation of the parenting orders.
- Documenting an agreement
Any agreement for new parenting arrangements reached by the parties by mutual consent should ideally be in writing (by email or text message, if it is not possible to document it formally). This is important to show the agreement reached, should there be any future court hearings.Consent orders can be produced by your lawyer to outline new or varied parenting arrangements. These can be filed with the Court electronically and, in most circumstances, orders can be made by the Court without a hearing.
- Unable to reach an agreementParties may be unable to reach an agreement to vary the parenting arrangements(for instance, because it is unsafe for them to communicate with each other in relation to the matter). In such circumstances, either party may approach the Court electronically and seek a variation of the court orders.
Subject to some exceptions where this requirement does not apply, parties must make a genuine effort to reach an agreement through family dispute resolution before filing an application with the Court seeking either new parenting orders or a variation of existing parenting orders.
During the period the parties are in dispute, the parties should keep the children safe. They should also ensure that both parentshave some contact with the children, consistent with existing parenting orders (for example, by telephone or, preferably, videoconferencing).
- Obligation to act reasonably
Parties must act reasonably at all times. Ultimately, it will be for the Court todeterminewhether or not a party has a reasonable excuse for not complying with court orders or has otherwise acted reasonably.It is also essential that during communications to vary the parenting arrangements, parties ensure that the purpose and spirit of the court orders are acknowledged and respected. The interest of the children must continue to be upheld.
This article provides general information only. We recommend seeking professional legal advice from our experienced family law team in regard to your specific circumstances.
For further information, or to discuss:
- how we may be able to assist you to negotiate with the other party to varyyour current arrangement outlined in your court orders; or
- preparation of consent orders to outline new or varied parenting orders,
please do not hesitate to contact us on 9335 9877 or email@example.com to arrange an appointment with one of our lawyers.
Appointments can currently be arranged in person or by voice or video call.