With people being encouraged to observe social distancing and isolation during the coronavirus outbreak, family lawyers are being asked how best to manage shared custody arrangements.

Key points:

• Family lawyers say parents still need to follow court orders amid the outbreak
• But they can still agree to vary them amid social distancing and isolation
• Parents are urged to put emotions aside and keep their children safe

Legal Aid NSW family law director Kylie Beckhouse said common questions included whether people needed to comply with court orders during the pandemic and how to manage changeovers if schools were to close.

She said people would still need to comply with court orders.

“Talk to the other party, and if you cannot talk to them, try and communicate via a third party to work out a sensible resolution,” Ms Beckhouse said.

“These are really stressful, unusual times and children are under enormous stress, and the best thing people can do right now is keep things as conflict-free as possible.

“Try and work it out with each other, or if they can’t work it out with each other, use a third party or a mediator.”

Family lawyer Rebecca Bunney said people might feel torn between breaching parenting orders and wanting to limit their children’s movements.

She said parents should try to have a combined approach to keeping the children away from crowds and older people.

Outbreak ‘not an excuse’ to cut another parent out

Ms Bunney said even if there were court orders in place, parents could still agree to vary the orders while social distancing and isolation was being encouraged.

“It is possible that people might use this opportunistically to deprive the other parent of time with their children,” she said.

“This is a public health emergency, this is not an excuse to start messing around with your parenting orders just because that is what you want to do.

“The advice to clients would be make sure the other parent is not missing out on time and they get make-up time, so if they miss two nights this week then say to them: ‘It is a credit, you will get to spend that time with them once this self-isolation is over.’

“They [should] get telephone calls with the children — FaceTime is a great option.

“It is not about cutting that other parent out, it is about keeping everyone safe.”

Parents self-isolating children may be shown sympathy

Ms Bunney said she believed in the event a parent contravened court orders, the court may take a sympathetic approach to those that wanted to isolate their children during the pandemic

“Any parent that is isolating their children due to health concerns should be making every effort possible to continue to allow the child to have a relationship with the other parent, even if it is not face to face,” she said.

“What I would be recommending to people is to put everything in an email, have everything in writing, set out your concerns really clearly and do your very best to have a sensible, practical discussion about this.

“If the matter then came before the court, you need to be able to show what you were thinking at the time and that you did your very best to communicate that to the other parent.”

Ms Bunney also urged people to put their emotions to one side.

“Do your very best to put all of your past hurt and concerns about your former partner to one side and really just focus on where is the best place for your children to be to have their movements limited as much as possible,” she said.

No increase in applications, WA Chief Judge says

In a statement, the Chief Judge of the Family Court of Western Australia said the court had not seen an increase in applications for parenting orders arising from concerns about COVID-19.

Chief Judge Gail Sutherland said it would be wrong and potentially confusing for the public if the Family Court were to produce general guidelines about any impact of concerns about COVID-19 on parenting cases.

“When the court is deciding a parenting dispute, the best interests of the child are the paramount consideration,” she said.

“In any case, the determination of those best interests can be multifaceted and complex and will depend on the individual circumstances of the particular family.

“Like all members of the public, parents with cases before the Family Court should pay careful attention to information and guidance provided by Government and the health authorities.”

The Family Court of Australia has responded to the COVID-19 pandemic by making changes to court operations to accommodate social distancing.

Urgent and priority trials including child-related and family violence matters will remain listed and will be conducted “in the safest manner possible”.
Non-urgent property-only trials may be adjourned, and non-urgent parenting trials will be given similar consideration at the discretion of the judge, while trials or hearings that can be done by telephone will be.

With thanks and acknowledgement to ABC.net.au

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URGENT NEW ARRANGEMENTS FOR THE LISTING OF MATTERS IN THE FAMILY COURT OF AUSTRALIA AND FEDERAL CIRCUIT COURT OF AUSTRALIA (COVID-19)

10AM 18/3/20

The health and safety of the community, Judges and staff is the Courts’ priority. Therefore, due to the escalating situation regarding the coronavirus, and in anticipation of further measures likely to be announced by Government, some urgent operational arrangements will be put in place effective immediately regarding the listing of court work across the Family Court and the Federal Circuit Court. The aim of the new arrangements is to ensure that all urgent and priority matters are able to be dealt with safely by the courts, whilst at the same time, ensuring appropriate social distancing is adhered to.

Judges have been advised by the Chief Justice/Chief Judge of new arrangements, as follows:

All family law and general federal law (GFL) work

List arrangements and capping of number of people in each courtroom

Any trials or hearings that can be done by telephone should be.

Any high volume lists required to be conducted in person need to be staggered to reduce the number of people in attendance in the Registry, and the number of people to attend a courtroom at any one time (other than the judge and their support staff) is limited to 8 people (‘8 person in-court cap’). Any additional people involved in matters must remain outside the courtroom, or can appear by telephone if appropriate. All matters that can be appropriately conducted by telephone should proceed in that way.

Judge work – family law

1. Summer Campaign callovers

The balance of the Sydney Federal Circuit Court callovers are to be vacated immediately and will be adjourned to a date to be fixed. Notifications have already been sent to the parties and practitioners for the matters that were listed today. Notifications will be sent to parties and practitioners today for matters listed for the rest of the week. The situation will be assessed on a regular basis, and the parties will be notified of new callover dates when that becomes possible.

The callovers in the Federal Circuit Court in Brisbane, Parramatta and Adelaide will be postponed until an appropriate time. The situation will be monitored regularly and judges, local registry staff and parties will be contacted shortly.

2. Duty lists

Duty lists should be reduced to only urgent or priority matters. Assessing which matters should remain listed is a matter for each Judge based on the nature of the cases in question.

In terms of structuring the list, duty lists should be staggered throughout the day to be consistent with social distancing principles, and not exceeding the 8 person in-court cap.

3. Trials and other contested hearings

Due to the nature of family law work, including child related and family violence aspects, urgent and priority hearings should remain listed, and be conducted in the safest manner possible. It may be that Judges consider conducting parts of the case by telephone where appropriate.

Non-urgent property only matters may be adjourned for an appropriate period of time, and non-urgent parenting matters will be given similar consideration. Again these matters are at the discretion of the Judge.
Any trials or hearings that can conducted by telephone or videoconference should take place in that way.

4. Circuits

Circuits for the next two months are in the process of being reviewed and it may be that some matters will be adjourned or conducted by telephone. Further communications regarding circuits will be provided shortly.

5. Appeals

At this stage, appeals are likely to be conducted only by videoconference or telephone where possible to reduce travel. Parties and practitioners will be contacted in the near future regarding upcoming appeal listings.

Judge work – General federal law (GFL)

Although the volume of matters is less than in family law, the same principles as noted above apply in respect of GFL matters. This includes the staggering of multiple listings and the 8 person in-court cap.

For migration matters, any matter currently listed which can be conducted appropriately by telephone or videoconference should proceed. If the matter requires a hearing in person, it should be postponed subject to the urgency of the case (e.g. detention matters).

In regard to other GFL matters, if the matter can proceed safely in person, and subject to the 8 person in-court cap, the matter may proceed at the judge’s discretion.

Official events and gatherings

All court based events, or attendances of the judiciary or court representatives at external events, will be cancelled or postponed, or conducted by telephone or videoconference if possible.

Registrar work and CDS work

A similar approach will be taken in respect of Registrar court lists and other work, and CDS work. Urgent plans are currently being developed and communications will be provided shortly.
It is also noted that Registrar migration lists have been suspended until July 2020 by the Federal Court, effective immediately.

Enquiries for parties or the profession

General enquires about the above matters should be directed, at first instance, to Michael Raine, via  or (08) 8219 1641.

Urgent enquiries should be directed to Chambers in the usual way.

Regards,

The Hon. Justice William Alstergren
Chief Justice
Family Court of Australia
Chief Judge
Federal Circuit Court of Australia
03 86004355

Do you have an ex whose favorite pastime is bad-mouthing you? Take the high road!

Although most divorced people occasionally say something less than kind about their former spouse, some turn ex-bashing into an Olympic event. These are usually high-conflict individuals (HCIs) who defend against the pain of divorce by blaming their ex for everything. HCIs have distorted ways of thinking, and cannot see their part in problems. They need a target, and if you’re their ex, that’s you! Don’t expect them to ever change their behavior, and do develop strategies for deflecting their drama.

Dealing with the bad mouther

• Don’t defend yourself. When someone twists reality to spin outrageous, inflammatory tales about you, it’s natural to want to defend yourself. Resist the urge! You will just give your ex another opportunity to climb onto his or her self-righteous pedestal and tell you 97 more terrible things about yourself. Yes, your ex’s slanderous statements are hurtful, but they are distortions. The next time you’re tempted to defend yourself, repeat this mantra: “What my ex thinks about me is none of my business.”
• Use disarming statements. Politely decline your ex’s invitation to a verbal or email/text bloodbath by using disarming statements: “you may be right;” “I’ll think about that;” “I’m sorry you feel that way.” Your ex is expecting you to get upset. Responding in a calm, non-reactive fashion may seem like you’re “giving in,” but the opposite is true. You’re not agreeing with your ex; you’re taking your power back by ending a fight.
• Don’t match your ex’s intensity. Imagine that your ex is a toddler having a tantrum. What’s the best way to handle that situation? By having your own tantrum? Or remaining calm and setting limits? You don’t have to respond to every hostile text, email, or voice mail. Or, you can choose to respond by stating: “It sounds like you’re upset. I don’t think we’re going to have a productive conversation right now. When you’re done being angry, I’ll be happy to discuss this.” If your ex counters by slinging more barbs, hold your boundaries and don’t respond.
  
  

There are some situations where you may need to confront the bad-mouthing: your child’s school staff or doctors have been told you don’t have custody, and other parents are declining playdate invitations because they’ve been told you’re evil. Here are some sane ways to address the crazy.

• Don’t counter-attack your ex. Launching into an emotionally charged, detailed explanation of why your ex is actually the crazy one will confuse people, confirm their misguided notions about you, or make them feel pressured into choosing sides. Don’t do this!
• Present your side of the story calmly and factually. Pretend you’re a reporter; address the bad-mouthing by delivering facts to the contrary. If your ex has told school staff that you’re an unfit parent who lost child custody, show them the custody agreement. Give your contact info to medical staff so they know you exist and are an involved parent. Without going into a lot of details, tell parents of your child’s friends that your ex’s allegations are distorted or untrue and you’re sorry they’re being exposed to drama. Urge people to contact you directly if they have a question or concerns.
• Don’t get emotional. It’s natural to feel angry and upset when people say bad things about us. But if you comer across as volatile or capable of whatever your ex is saying about you, then people may believe what they’ve heard. You can’t control what others think, but you can control your own behaviors.
• Detach. Your ex’s comments and others’ faulty beliefs have nothing to do with your worth. They may not even have much to do with reality. Hitching your self-esteem to other people’s transient opinions will just make you miserable. Focus on being the best person you can be and let go of the need for approval.

Talking To Your Kids

If your children have bought into your ex’s propaganda, you need to address it. Pretending everything is fine is like pretending the elephant in the room isn’t really there. Your ex is attempting to damage your children’s relationship with you, and their ability to think critically. While you cannot stop your ex, you can do things to present your side of the story.

• Acknowledge the bad-mouthing. Name bad-mouthing as a problem but don’t respond with your own bad-mouthing, i.e., “your father’s a nightmare and is out for revenge.” Instead, acknowledge that your ex says bad things about you and focus on the impact on your kids: “What you’ve heard may have scared you, or made you angry.”
• Confront distortions with facts. Contrary to popular divorce wisdom, saying nothing won’t make the problem go away. Your ex is emotionally abusing your children by trying to damage their bond with you. The antidote to gas-lighting is presenting facts. For instance: “I arrived for visitation, but you weren’t there. I texted and called your mother, but she didn’t respond. If there’s an emergency and I’m not able to see you, I will always let you know and tell you when the next visit will be.”
• Teach your children self-agency. Your ex is trying to control what your kids think, so give them permission to think for themselves. Tell them to talk to you directly if they have concerns about you. Don’t pressure them to believe your side of the story; instead, let them know they have a right to their own feelings and opinions. Not only are you teaching your kids how to think independently, but you are also showing them that you’re safe to talk to.
  

Remember: what your ex says is a reflection of them, not you. You can choose not to take it personally. The best way to respond to bad-mouthing is to behave in ways that make you feel good about yourself.

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