Debunking Family Law Myths – Part Two

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MYTH: COVID-19 means you can keep your children from spending time with their other parent

This is a new issue facing the Family Court and Federal Circuit Court in recent months. The Court has now published clear guidelines regarding parenting orders and parenting arrangements during the COVID-19 pandemic. The Court has directed that unless there is a specific reason why a parent (or other guardian) is at risk of COVID-19 and as long as both parents adhere to Government rules, then the parenting agreement between the parties should continue as normal. COVID-19 in general does not warrant an Order being broken and children not spending time with their parents in accordance with usual arrangements. Further, state and territory governments have exemptions in relation to border closures when it comes to travel for the purposes of care arrangements.

Additionally, to assist the volumes of parties to legal proceedings that have been affected by COVID-19, the Court has actually set up a special COVID-19 list to ensure that Family Law issues which are specifically linked to the pandemic can be heard as quickly as possible.

It is important to remember that of course every case is different. It is possible to seek a suspension or variation of your parenting arrangements (or orders) if your individual circumstances warrant it. In fact, our office has in recent weeks successfully assisted clients with suspending the operation of parenting orders due to impact of the COVID-19 pandemic.

MYTH: Litigate everything!

This is an unfortunate myth that affects all areas of law: that you must be litigious to succeed. This is simply not true.

It is absolutely possible to obtain a good outcome without the need to resort to litigation. Indeed, even in the event that litigation is the appropriate course for your matter, it is possible to be effective and successful while remaining amicable and collaborative.

At Elringtons, we support our clients with a focus on early and amicable resolution of both parenting and property matters where possible.

We encourage clients to explore alternative dispute resolution and treat litigation as a course of last resort. In the first instance, parties can negotiate between themselves and check in with lawyers for specialist advice. There are graduated levels of assistance that can be provided from this stage, including lawyer-assisted negotiation or conferencing, or formal mediation (with or without lawyers). Ultimately, if the parties are unable to resolve their dispute outside of Court, with or with the assistance of their solicitors.

Of course, should the matter be unable to be resolved through these means, we provide our clients support and expert representation in Court. It is important to note that alternative dispute resolution does not stop upon the commencement of proceedings in Court. It is possible, and in fact often required, by the Court that additional forms of alternative dispute resolution occur even once the matter is in Court. For example, parties in a property matter are likely to be required to attend a Conciliation Conference of a private Financial Mediation at some stage before their Final Hearing.

FACT: You have to do counselling before litigating in parenting matters, unless it is urgent or there is family violence

The Family Law Act required that prior to commencing proceedings in parenting matters (unless it is an emergency) the parties must attempt to mediate. The mediator will issue a “section 60i certificate” to parties for attending mediation or to indicate that one party has attempted to schedule mediation and the other party has not attended or agreed to attend.

The most exemptions pursuant to Section 60i of the Act are:

• If the Orders being applied for are to be made with the consent of all parties to the proceedings;
• If there has been abuse of the child by one of the parties to the proceedings;
• abuse of the child if there were to be a delay in applying for the order;
• family violence by one of the parties to the proceedings;
• family violence by one of the parties to the proceedings;
• made in circumstances of urgency; or
• proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason).

As noted above, the Family Law Act stipulates that, unless it is an emergency (such as a child being in danger) then parties involved in either a property or parenting matter must attend either counselling or mediation prior to filing in Court. This is a sensible approach as most matters can resolve at mediation and the length of time a matter takes to come before the Court for final determination can be years, so it is a far better idea to mediate and try and reach an agreement!

This Article is part of the series Debunking Family Law Myths. Visit our website again for further information soon. If you have a particular family law question you want clarified as a fact or myth, please email our family law team at cturini@elringtons.com.au