The impact of Covid-19 on family law in Australia

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Stephen Page

Page Provan, Brisbane

stephen@pageprovan.com.au

The most overused word during the current coronavirus pandemic has been ‘unprecedented’. Barely a day goes by when unprecedented is used in a news article or some direction from a court or court ruling. Despite the extraordinary use of this word, nevertheless it accurately describes the impact of coronavirus in Australia at least.

Australia has been extraordinarily lucky or well-managed in its response to Covid-19. At the time of writing (21 May 2020), there had only been 100 deaths from Covid-19 out of a population of approximately 25 million. By comparison, the United Kingdom with a population of approximately 67 million has, as of 19 May 2020, had 35,704 deaths. On a per capita basis, if the deaths in Australia had occurred at the same rate, there would have been 13,322 deaths; or to put it another way, 133 deaths for every death that has occurred in Australia.

Part of the reason for the low death rate in Australia has been the quarantine actions taken by the Federal, State and Territory authorities. Some of these steps have been undertaken by regulation under relevant emergency legislation. Some has been taken by administrative action. It is hard to fathom, but there is currently a ban on Australians undertaking travel overseas with carefully proscribed exceptions, such as convincing a federal official that the purpose of travel is in exceptional circumstances based on compassionate grounds.

Similarly, Australia has taken administrative action by stopping the issuing of electronic travel authorities (visa waiver) and declared that the only people who can travel to Australia are Australian citizens, permanent residents and their dependents. In turn, apart from mercy flights allowing Australians to return home, the availability of flights, both domestically and internationally, has come to an almost complete stop. The impact of these changes has included visa holders (but not permanent residents) who have been briefly overseas and unable to return to Australia.

The two major domestic carriers, Qantas and Virgin Australia have, with the exception of those mercy flights partly funded by the government, stopped or suspended all international air travel. To put that in context, in its 100 years of operation, Qantas has never previously stopped international air travel, not even during the trying days of the Second World War. As it stands, Qantas will not be flying internationally until the end of July and it is likely that that date will be extended further. Prime Minister Scott Morrison has hinted that overseas travel may not be available this year.

For Australians seeking to travel to the United States or Canada, for example, there have been only two carriers available, being either United Airlines from Sydney to San Francisco or flying via the Middle East on Qatar Airways.

For those arriving from overseas, with rare exception, government-provided 14-day hotel quarantine is mandatory. Further internal quarantine may also be required. International travellers arriving in Sydney, for example, whose final destination is Perth may find themselves with 14 days’ government quarantine in Sydney, followed by a further 14 days self-isolation at home in Perth.

Australia is likely to fall into recession, for the first time in almost 30 years, with a spike in unemployment and a huge drop off in business activity. This has been ameliorated to some extent in the short term by an enormous Commonwealth Government bailout of businesses and the unemployed under its JobKeeper and JobSeeker programmes, which in the medium to long term may lead to a large increase in borrowings or taxes.

Direct impact on children and families

Covid-19 has had many effects on families where the parents have separated, including:

• some reports of non-compliance with changeover arrangements; and

• children being unable to travel to spend time with the other parent due to restrictions on travel within Australia such as seats on planes and government travel restrictions.

At the time of writing, the Northern Territory, Queensland, South Australia, Tasmania and Western Australia have imposed barriers of entry to that State or Territory. There have been exceptions largely made for compliance with court orders, although this varies State by State. Exceptions have not been made for children travelling, except as unaccompanied minors. A child returning to Queensland, for example, from New South Wales after spending time with the other parent would nevertheless need to obtain an exemption permit to enter Queensland and, on entering Queensland, would need to undertake 14 days self-isolation at home.

Even within States, there have been restrictions on travel. In Western Australia, which is the size of India, restrictions on travel extend to travel within that district only. This has posed difficulties for example, when the mother and children might be living in Perth, and the father is working at the iron ore mines in the Pilbara, 1,500km away.

Not surprisingly, there has been a great increase in electronic communication (such as Zoom) between parents and children.

Counselling and mediation services have moved to a remote model, using electronic means too. Children’s contact services which have involved either supervised time between parents and children or facilitating changeover arrangements have largely stopped altogether.

In international surrogacy matters, there has been extraordinary difficulty in intended parents travelling overseas to attend at the births of their children and then being able to return home with their children. The additional barriers that intended parents have to overcome are:

• Permission to leave Australia. Some intended parents have had to apply three times to be able to obtain permission to leave and on occasion have only obtained permission after their child is born.

• Finding a flight or dealing with cancellations of flights by airlines.

• Having permission to enter the other country. There have been issues with Canada, the United States, Ukraine and Georgia. In Canada, for example, action has been taken there by lawyers to ensure that intended parents of children born via surrogacy in Canada can obtain permission from the Canadian government to enter Canada relatively easily. Intended parents travelling to the US have been allowed to enter after being questioned on arrival by government officials as to their purpose of travel. Intended parents travelling to the Ukraine or to Georgia have had at times great difficulty entering.

• There have been delays in the US in particular in processing of court orders, birth certificates and passports – greatly delaying the ability of children to leave the US.

• Due to the change in Australian government procedure, intended parents need to obtain a visa from an Australian Consulate (which may involve considerable domestic travel in that country) or Australian citizenship. The Australian Department of Home Affairs has been seeking to speed up the process of Australian citizenship applications by those children.

Domestic violence

It is unclear what impact Covid-19 has had on domestic violence rates in Australia. There have been anecdotal reports of increases in domestic violence, but also reports by police of a reduction in domestic violence callouts. Time will tell.

Impact on property settlements

Experienced forensic accountants are now putting disclaimers on their business valuation reports about the impact of Covid-19 on the valuation. In the current business environment, they – like everyone else – do not know what economic impact the virus might have. Experience teaches us that most property settlement matters settle and are not resolved at a hearing. It may be very difficult to settle matters when the property pool is uncertain. Experience from previous recessions is that parties may often wait to resolve so that there is some clarity about the economic landscape, and therefore the value of the business.

Similarly, there is an expectation that real estate values may decrease considerably. It is still early days to see what impact there might be.

How the courts have reacted

When the first wave of Covid-19 restrictions came in, appearances in the Family Law Courts were adjourned, often to dates to be fixed. Physical appearances at these courts suddenly stopped.

A series of directions were issued by the courts as to how to respond to Covid-19.^[1] These included:

• In-house assessments at the courts by family consultants of families to occur electronically.

• Conciliation conferences and other appearances before Registrars to occur electronically.

• Appearance before judges to occur electronically.

• No documents were to be filed physically, but all documents were to be filed through the court’s portal. Previously, some documents could not be filed through the portal and there was always the ability to file physical documents. The courts have given latitude as to the execution of affidavits, in particular.

• The Family Court of Australia and the Federal Circuit Court of Australia have created a Covid-19 list for urgent matters arising from Covid-19.

Most appearances before the Family Law Courts are now by telephone. Of the relatively few trials that have been proceeding, these have been heard on Microsoft Teams. Judges have been operating remotely. All documents that judges now see are electronic ones. Times at court have been staggered.

The process of only using electronic documents has been slower for judges and therefore parties. Rather than having a physical file in front of the judge where the judge can pull apart documents and grab them fairly quickly, the judge then has to locate an electronic document (often using only one screen) to view it before moving to the next.

Tendering documents in the middle of a hearing has been undertaken by use of the portal or by emailing the judge’s associate.

There has been a steep learning curve for many judges and lawyers, including that they have the right software on their system, that their phone is not placed on hold (by lawyers) and that while they were waiting their turn to speak, that their phone is on mute.

In the words of the Courts to the profession^[2]:

‘The Courts’ operations have had to be substantially adjusted since the beginning of March this year. Like many institutions and large organisations, the Courts have had to engage in a long term digital transformation. Microsoft Teams has been rolled out to each Judge, Registrar and Family Consultant. Each Judge and Registrar is now able to conduct hearings electronically from each Registry. Whilst urgent matters will be given priority, Judges now have the ability to continue to hear defended applications, trials and appeals.

‘This technology was rolled out at great speed to 101 judges, 35 registrars and servicing up to 40 different locations. It is a great credit to all involved including the IT department, the judges, registrars, court staff and the profession for their cooperation.

‘A number of interim and final matters have been heard in the Courts over last two weeks using Microsoft Teams across the nation. These were both family law and general federal law cases. The rapid implementation of new technologies has not been without issues, however, the problems have been dealt with as they unfolded and generally speaking, the hearings went well. There were also a number of appeals heard via Microsoft Teams last week in Sydney. To assist the profession, the Courts will be uploading some general guidance to the websites for participating in virtual hearings and other Court events, and using Microsoft Teams.

‘The Courts will also be moving to a Digital Court File (DCF) by 14 April 2020. The ability to conduct hearings remotely and the DCF will not only assist the Courts during the Covid-19 pandemic, but will also greatly enhance the Courts’ flexibility to hear trials and appeals electronically in the long term. It allows judges to hear cases from any registry or even in remote locations. It also provides an extremely safe and less stressful forum for vulnerable parties to attend hearings and give evidence.

‘Practitioners should also note that most interviews conducted by family consultants will now take place by telephone or video. However, in very limited circumstances, family consultants may also need to conduct face-to-face interviews.’

Proceedings in state courts concerned surrogacy applications have either been dealt with on the papers in chambers or by electronic appearances.

Requirements of the Covid-19 list

The filing of urgent applications is done by email. The applicant must file:

• The application;

• A supporting affidavit of no more than six pages using the Covid-19 template affidavit;

• A cover letter for urgency. There is a template letter that is expected to be followed.

• The required document setting out risks of child abuse or family violence.

The application and affidavit may be signed electronically. The affidavit may be filed without a qualifying witness also signing the document.

The affidavit must address the following criteria:

1. why the matter is urgent;

2. how the dispute has arisen as a direct result of Covid-19;

3. details of any current allegations of risk to children or parties, such as a risk of child abuse or family violence;

4. details of the parties’ reasonable attempts to resolve the dispute through negotiation, or details of why it was not safe to attempt to resolve the dispute by negotiation;

5. details of how it is proposed the respondent can be provided with a copy of the court documents, including information about the respondent’s current email address; and

6. if applicable, annexing (or attaching a copy or photo of) any current family law orders, parenting plans, or family violence orders, eg, an intervention order or domestic violence order.

Unless it is not safe to do so, the applicant must copy the respondent into the email when emailing the documents to the court to put them on notice of the proceedings. The registrar may require the respondent to file answering material on short notice on the urgent issue only. If the registrar or judge requires further material to be filed to be able to deal with the urgent application, that will be conveyed at the first return date.

The courts have given examples of the types of matters that might be on the Covid-19 list:

• Supervised contact

The current parenting arrangements involve supervised contact, and the contact centre is closed or the supervisor is unable to perform their role, and the parties cannot agree on an alternative arrangement.

• Border restrictions

The parties live in different States or Territories and the child cannot travel between the parties’ residences due to border restrictions.

• Medical

The parties and/or child have tested positive for Covid-19 and cannot fulfil the parenting obligations due to sickness or concerns of infection.

• Family violence

There has been an increase in risk due to family violence resulting from the restrictions imposed on families during the Covid-19 pandemic.

Impact on the profession

There has been a steep learning curve for lawyers who did not previously adapt to technology. In addition to media reports of thousands of employees in the airlines, accommodation, and hospitality sectors being stood down from their jobs, the same has been said about lawyers. Some lawyers who specialised in appearances as town agents have found with electronic appearances that their practice has dried up overnight. Many counsel who have relied on trials have discovered that with the adjournment of those trials that their practices have dried up overnight. Given that it is estimated that almost half of the Australian workforce could be on the Commonwealth Government’s JobKeeper programme, with more than 500,000 businesses having registered, covering more than three million employees, including those who are self-employed, it is likely that lawyers will be on that programme like everyone else.

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