Coronavirus (COVID-19) and Family Law – Your rights and responsibilities
In light of the evolving directives and recommendations from both Federal and State Governments to keep abreast of COVID-19 (coronavirus), you may have questions about how these changes might affect your family law matter including: –
– Do I have to comply with a Parenting Order or Parenting Plan?
– What happens if a parent is exhibiting symptoms, tests positive or is hospitalised due to Coronavirus?
– What effect might this have on my obligations under a Property Order or Financial Agreement
– Do I still have to pay child support?
We have set out below some general advice and information, however urge you to contact us for advice particular to your circumstances if you still require any clarification or are unsure what you should do.
Firstly, if you are able to, attempt to communicate with your former spouse to reach a common-sense resolution. These are difficult and anxious times for everyone. Now is a time to try and work together if you can. We appreciate however this is not possible in all circumstances. Please contact us if you require assistance with any negotiations.
If you do reach an agreement about a change in your current arrangements, it is important to document that agreement. How that should be done will depend on your particular circumstances – for some an exchange of text messages/emails which clearly state the agreed changes will suffice. In other situations, the agreement may need to be captured in correspondence passing between legal representatives, a Parenting Plan or you may need to amend your existing Court Order or Financial Agreement. Please contact us for further advice about what you might require.
Do I have to comply with our Parenting Order or Parenting Plan?
Firstly, you should comply with all directives issued by Government. Read those carefully as there may be an exemption for complying with Court Orders. For example, in relation to the directive in relation to the Queensland border, there is an exemption for Court Orders, including Family Court Orders. A practical example of this is when a parent is required to travel across the border to effect a changeover in accordance with a Court Order. The exemption is not likely to apply to Parenting Plans or informal parenting agreements. As such, you will need to try and reach an agreement with your former spouse about alternative arrangements.
While retaining a child contrary to a Parenting Order might result in a technical contravention of that Order, these unprecedented circumstances may be a relevant consideration for the court to consider, if that was to occur. The Family Court has issued a statement confirming that in its view, “it is imperative if an Order cannot be strictly adhered to and is varied by the parties, the parties ensure that the purpose or spirit of the Orders are respected when considering altering arrangements, and that they act in the best interest of the children”.
To avoid a possible contravention of an Order, if you and your former spouse reach an agreement on alternative arrangements, it is preferable to formally document this agreement in a Parenting Plan.
A Parenting Plan cannot be enforced by a Court. As such, there are no formal consequences for non-compliance with a Parenting Plan.
What happens if a parent is exhibiting symptoms, tests positive or is hospitalised due to COVID-19 (Coronavirus)?
It is reasonable to suggest that if a parent is exhibiting symptoms, tests positive to coronavirus, is required to self-isolate or is hospitalised, that a child should go into the care of the other parent, provided there is no court Order prohibiting contact between the child and that parent, and no risk factors such as family violence or abuse. In that instance, the parent should make alternative arrangements for the care of the child, for example with a family member or friend.
If there is a period of time when a child is not able to spend time with a parent, then you should consider increasing communication between the child and that parent, whether by phone, face-time or email – whichever might be more convenient and age appropriate for your child.
What effect might Coronavirus have on my obligations under a Property Order or Financial Agreement?
COVID-19 (Coronavirus) may impact upon your ability to implement the terms of your Property Order or Financial Agreement. For example, to effect a transfer and/or refinance of property/assets, cash payment to your former spouse, sale of a property or make payment of spousal maintenance.
Again, it is imperative you discuss any change in your circumstances and any concerns you might have about your ability to comply with an Order or Financial Agreement with your former spouse if you are able to. If not, please contact us immediately so that we can enter into negotiations on your behalf.
Non-compliance with an Order or Financial Agreement may lead to enforcement proceedings and/or interest penalties, which are costly and time consuming. To avoid this, it may be that your Order or Financial Agreement has to be varied or set aside by a court. This should be done without delay and you should contact us for further advice.
Do I still have to pay child support?
Your obligations to pay child support as determined by the Child Support Agency (‘an assessment’) or as agreed to in a Limited Child Support Agreement or Binding Child Support, Agreement will continue.
If there has been a change in your income and/or employment, then in the case of any assessment, you should contact the Child Support Agency as soon as possible to advise them of that change.
If you have a Limited Child Support Agreement or Binding Child Support Agreement, you should obtain further advice from us as to your obligations under those Agreements and whether they can be varied to take into account any change in circumstances, or if you have grounds to cease your obligations or terminate the Agreement.
Our family law team at Rostron Carlyle Rojas Lawyers are here to help you navigate this unprecedented situation and answer any queries you might have. Please contact us on
(07) 3009 8444 or the following email addresses:
Tuskeen Jacobs, Partner & Accredited Family Law Specialist – [email protected]
Renee Kinman, Senior Associate & Accredited Family Law Specialist – [email protected]
Alana Pointon, Lawyer – [email protected]