How COVID-19 Encouraged Innovative Thinking in Australian Family Court Judgements
Written By Emma Hann
It’s no secret that we all had to learn how to “survive’’ being around our families (or just ourselves) 24/7 during the covid-19 lockdowns. Although the likely skyrocketed divorce rate statistics won’t be available for some time, internet polls and surveys from around the world show that couples seeking separation advice went up a whopping 314% during 2020. In order to meet the new and increased demands presented by covid for couples mid-separation or already separated - such as no longer having access to supervised contact, increased rates of family domestic violence, vaccination disputes and border restrictions - the Australian Courts were forced to be innovative and creative in their approach, an example of this being the development of the National COVID-19 List. Although, generally speaking, covid-19 wasn’t considered a reasonable excuse for non-compliance of court orders (see Salmet), some exceptional cases are explored below.
One of the inventive judgements by the Federal Circuit Court was by Justice Rees in Banham. Here, court orders were temporarily altered during lockdown - allowing for the use of AV communication methods such as facetime and houseparty to satisfy ‘meaningful’ visitation requirements amidst border restrictions. Whilst travel exemptions were permitted in the circumstances of this case, the primary consideration of the parents was the health risk posed to the children by frequent interstate travel.
The judgement given in Gayner was yet another depiction of the volatile and unpredictable economic environment presented by covid. The level of variation in the valuations of the assets done in this matter as a result of covid, meant that both parties consented to temporary adjournment of the matter entirely as a matter of safety and fairness. A somewhat similar issue was presented in Martyn - where significant reduction in revenue of the husband’s international business (due to covid) was held to be an exceptional circumstance under the Child Support (Assessment) Act 1989. This resulted in a binding child support agreement being set aside indefinitely - as the courts considered the absence of evidence as to the likely duration of the impact of covid on international business.
Although the world is slowly moving forward from lockdowns and the like, a pertinent issue that maintains relevance in the Courts is vaccination. A recent judgement given late February this year, in the matter of Kafler, was a key identifier as to the court's position on vaccination. Here, both parents had alternate opinions on whether or not to vaccinate their child. The courts, evident in this judgement, have identified a clear alignment with the Australian Government and health officers, in that they support vaccination against covid, stating that they ‘place weight on the overwhelming scientific evidence’ in support of covid vaccination.
It is evident upon analysis of these case examples that covid has truly lived up to its ‘unprecedented’ reputation. Covid has produced innovative judgements within the Australian Courts, and broadened thinking surrounding the nuclear family being the contemporary norm.