Family Law

Baharuddin, H, ‘Parenting Styles During the Covid-19 Pandemic: A Conception of Islamic Family Law’ (2021) 5(1) Al-Bayyinah: Jurnal of Islamic Law 13–28
Abstract: The covid-19 pandemic situation has led to many changes in living conditions and various activities that are mostly carried out at home in order to reduce and prevent the chain of transmission of the corona-19 virus. This study aims to provide an illustration of the role of parents at home during the Covid-19 pandemic situation by providing the rights that must be given to children by correlating them with the concept of childcare in Islamic family law. The urgency in education studies in the review of Islamic family law is to emphasize the position of parents who are not only responsible for providing a living, including in matters of success in education. This is a conceptual study, which seeks to explore the concept of childcare that is built in Islamic family law. The findings in this study indicate that childcare according to Islamic family law in the covid-19 pandemic situation, namely: 1) teaching children to do good and keep away from badness, this is done by way of parents giving examples and accompanying children when learning, 2) Parenting with affection, this care is done by providing safety and guidance to children, 3) Fulfilling the needs of children. In the conception of Islamic family law it is known as hadanah rights or child care which is widely understood, both in terms of livelihood to children’s intelligence. The implication of this finding is that during the pandemic, parents have a significant role, in addition to living needs, parents are also required to ensure children’s intelligence through the fulfillment of education.

Bell, Felicity, ‘“Part of the Future”: Family Law, Children’s Interests and Remote Proceedings in Australia during COVID-19’ (2021) 40(1) University of Queensland Law Journal 1–26
Abstract: In March 2020, the family law courts, like other Australian courts, moved to hearing proceedings ‘remotely’, by phone, audio-visual link or software platform. This article examines the particular circumstances of family law cases that likely impact on whether it is appropriate for remote procedures to be used. Giving context to these themes, the article reports on a survey of Australian federal judicial officers about their experiences of conducting family law proceedings remotely.

Bewley, Amanda, ‘Mental Health Awareness and Suicide Prevention in the Family Justice System: A Different COVID-19 Issue’ (2020) 50(July) Family Law 795–798
Abstract: Discusses the issue of suicide prevention in the specific context of the family justice system and the need for training in how to respond to suicidal litigants. Considers the effect of the coronavirus pandemic on the well-being of both practitioners and clients.

Byars, Kaleb, ‘Coronavirus, Caregivers and Child Custody: A Pragmatic Solution for Parents Who Seek to Protect Their Children During the COVID-19 Crisis. (Cover Story)’ (2020) 56(5) Tennessee Bar Journal 28–29
Abstract: Extract from Introduction: As COVID-19 spreads, it undoubtedly carries with it a host of legal issues. This article seeks to address one of those issues. Namely, it answers the following question: What options are available to a child’s parent when the child’s other parent who has shared physical custody of the child refuses to take precautions during a pandemic such COVID-19?

Catrina, Radu, ‘Family Law: A Precedent for Unprecedented Times’ (2020) 94(12) Law Institute Journal 40–43
Abstract: How the family law courts have treated the continued operation of, and frequent non-compliance with, parenting orders in the wake of COVID-19.

Chandler, Alexander, ‘Is Coronavirus a Barder Event?’ (2020) 50(June) Family Law 701–712
Abstract: Considers whether a coronavirus-related event is a Barder event justifying the re-opening of a final financial order. Reviews the applicable principles through five ‘Barder’ cases. Looks at a range of possible Barder scenarios arising from the coronavirus pandemic. Outlines procedure for making a Barder application. Offers some thoughts on what to do regarding agreements which have not yet been made into orders.

Cooper, Donna, ‘Post-Separation Parenting During COVID-19’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)

Doughty, Julie, ‘Remote Justice: Family Court Hearings during the Pandemic’ (2020) 42(3) Journal of Social Welfare and Family Law 377–380
Abstract: Discusses Re A (Children) (Remote Hearing: Care and Placement Orders) (CA) and other cases on holding a hearing remotely or in a hybrid form during the coronavirus pandemic, noting the guidance given by the President of the Family Division in this case.

Douglas, Gillian, ‘Abduction’ (2020) 50(July) Family Law 822–823
Abstract: Comments on the approach in Re PT (A Child) (Fam Div) to the argument that ordering the return of a child from England to Spain during the coronavirus pandemic would amount to a grave risk of physical harm under the Hague Convention on the Civil Aspects of International Child Abduction 1980 art.13b.

Drventić, Martina, ‘COVID-19 Challenges to the Child Abduction Proceedings’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 631–656
Abstract: While creating a new notion of everyday life, the COVID-19 pandemic also affects the resolution of cross-border family disputes, including the international child abduction cases. The return of an abducted child to the country of his or her habitual residence is challenged by travel restrictions, international border closures, quarantine measures, but also by closed courts or cancelled hearings. Those new circumstances that befell the whole world underline two issues considering child abduction proceedings. The first one considers access to justice in terms of a mere possibility of the applicant to initiate the return proceeding and, where the procedure is initiated, in terms of the manner of conducting the procedure. The legislation requires a quick initiation and a summary resolution of child abduction proceedings, which is crucial to ensuring the best interests and well-being of a child. This includes the obligation of the court to hear both the child and the applicant. Secondly, it is to be expected that COVID-19 will be used as a reason for child abduction and increasingly as justification for issuing non-return orders seen as a ‘grave risk’ to the child under Article 13(1)(b) of the Child Abduction Convention. By analysing court practice from the beginning of the pandemic in March 2020 to March 2021, the research will investigate how the pandemic has affected child abduction proceedings in Croatia. Available national practice of other contracting states will also be examined. The aim of the research is to evaluate whether there were obstacles in accessing the national competent authorities and courts during the COVID-19 pandemic, and in which manner the courts conducted the proceedings and interpreted the existence of the pandemic in the context of the grave risk of harm exception. The analyses of Croatian and other national practices will be used to gain an overall insight into the effectiveness of the emerging guidance and suggest their possible broadening in COVID-19 circumstances or any other future crises.

Foster, David and Philip Loft, ‘Coronavirus: Separated Families and Contact with Children in Care FAQs (UK)’ (House of Commons Library, Briefing Paper No CBP 8901, 5 January 2021)
Abstract: This paper provides brief information in response to some key questions regarding the impact of the Coronavirus outbreak on separated families, maintenance arrangements and access to children.

Fraser, Graeme, ‘Family Justice Post COVID-19: The Road to Recovery’ (2020) 170(7900) New Law Journal 8
Abstract: Considers the Sixth Report of the House of Commons Justice Committee on the delivery of court services during the coronavirus pandemic. Highlights the backlog of cases in the Family Court and the need for a government recovery plan on how to reduce the backlog.

Freckelton, Ian, ‘COVID-19 and Family Law Deision-Making’ (2020) 27(4) Journal of Law and Medicine 846
Abstract: All aspects of family law have been affected by the COVID-19 pandemic. It has posed challenges for the operation of the Family Court of Australia and the Federal Circuit Court, the obtaining of expert reports, the conduct of hearings, the functioning of contact centres, and the mode of delivery of children’s schooling. In Australia and in Ontario an attempt has been made to be clear about what is expected of parents during the period of crisis. An Australian innovation has been the establishment of a COVID-19 List and communication by the Chief Justice of the Family Court about what is expected of parents by way of compliance with orders from chief health officers and safe practices to protect children against infection, especially those with particular health vulnerabilities. This column reviews such initiatives and a number of the significant family law decisions during the early phase of Australia’s response to the COVID-19 pandemic.

Harker, Lisa, ‘Children’s Contact with Birth Families: Lessons Emerging during the Pandemic’ (2020) 50(July) Family Law 929–931
Abstract: Considers how child contact arrangements have been managed during the coronavirus lockdown with restrictions on face-to-face contact. Refers to findings from Nuffield Family Justice Observatory research on the use of video calls for children in residential, foster and kinship care to facilitate contact with birth families.

Hitchings, Emma and Mavis Maclean, ‘Unprecedented Times: Some Thoughts on the Consequences of the COVID-19 Pandemic from a Family and Social Welfare Law Perspective’ (2020) 42(3) Journal of Social Welfare and Family Law 277–280
Abstract: Extract: The effects of the global health crisis and the strategy of national lockdown to ameliorate the pandemic across the globe have had unparalleled consequences for family and social welfare law. Government policies across the world have been introduced at a scale and pace that would have been unthinkable as recently as February of this year. These have been introduced in order to limit the inevitable devastating economic consequences and have resulted in unprecedented levels of government support for businesses and individuals. Other nations such as France are already in an official recession, and while the United Kingdom has not, as yet, made the official list, there is no doubt that we are on our way. According to the Office for National Statistics (2020), Britain’s economy contracted by 2.2% in the first three months of 2020 and GDP fell by 6.9% in March even though the strictest lockdown measures were only in place for nine days of that month.

Key, Aimee and Lindsey Obenhaus, ‘COVID-19 and Family Law: What Every Attorney Needs to Know’ (2020) 83(5) Texas Bar Journal 310–311
Abstract: Extract from Introduction: In addition to transforming the way matters are handled in court, the COVID-19 pandemic poses a number of new issues for family law clients and their children, which are considered here.

Leedam, Kirsty and Hannah Nicholls, ‘The Importance of Habitual Residence in International Children Proceedings after COVID-19’ (2020) 2 International Family Law 143–148
Abstract: Discusses the impact of the coronavirus pandemic on international children proceedings, including the extent to which the travel ban may have changed some children’s place of habitual residence. Details the factors determining such residence, how it is assessed, and how it may be lost.

Lessard, Michaël, ‘Coronavirus: Développements Récents En Droit de La Famille Concernant La Garde et l’accès Durant La Pandémie de La COVID-19 (Recent Developments in Québec Family Law Regarding Custody and Access During the COVID-19 Pandemic)’ [2020] (April) Repères 2983
English Abstract: The author describes the recent developments in Québec family law regarding the exercise of custody and access rights during the coronavirus pandemic (COVID-19). The developments discussed here are those that occurred between March 13 and April 13, 2020.

Lyon, Fiona, ‘The Surrogacy Journey’ (2020) 170(7900) New Law Journal 12–14
Abstract: Outlines the legal and practical steps involved in a surrogacy arrangement, including surrogacy agreements, parental orders, relevant case law, and the effects of COVID-19 on international surrogacy.

Masson, Amanda, ‘Reflections on Child Law in the Pandemic’ (2020) 166 Family Law Bulletin 1–3
Abstract: Summarises aspects of Scottish and UK child law which have been affected by the COVID-19 pandemic, including child contact arrangements and child welfare hearings.

McCosker, Alexandra, ‘Family Law: Parenting during a Pandemic: Best Interests of the Child Remain Paramount’ (2020) 66 LSJ: Law Society of NSW Journal 78–79
Abstract: Family law disputes have traditionally run the gauntlet of not only legal issues, but also the emotional and human elements that so often accompany such disputes. The COVID-19 pandemic has added an extra complication to the lives of many Australian families dealing with family law disputes. How are families to approach their family law issues during this time? The situation pertaining to the COVID-19 pandemic is constantly changing, and everyone living in Australia needs to ensure they are up-to-date with such changes as they arise. Given the evolving nature of the situation in New South Wales and the potential for significant or abrupt changes, this article is confined to providing an overview of the issues that may arise in family law matters during the COVID-19 pandemic and does not constitute legal advice.

Probert, Rebecca and Stephanie Pywell, ‘Love in the Time of Covid-19: A Case-Study of the Complex Laws Governing Weddings’ (2021) 41(4) Legal Studies 676–692
Abstract: During 2020, weddings were profoundly affected by the Covid-19 pandemic. During periods of lockdown few weddings could take place, and even afterwards restrictions on how they could be celebrated remained. To investigate the impact of such restrictions, we carried out a survey of those whose plans to marry in England and Wales had been affected by Covid-19. The 1,449 responses we received illustrated that the ease and speed with which couples had been able to marry, and sometimes whether they had been able to marry at all, had depended not merely on the national restrictions in place but on their chosen route into marriage. This highlights the complexity and antiquity of marriage law and reinforces the need for reform. The restrictions on weddings taking place also revealed the extent to which couples valued getting married as opposed to having a wedding. Understanding both the social and the legal dimension of weddings is important in informing recommendations as to how the law should be changed in the future, not merely to deal with similar crises but also to ensure that the general law is fit for purpose in the twenty-first century.

Radina, Ana, ‘The Child’s Right to Maintain Contact with Both Parents in the Age of Pandemic’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 601–630
Abstract: The COVID-19 pandemic and the accompanying extraordinary measures engaged restrictions of fundamental human rights and liberties to an unprecedented scale. Inevitably, this had implications in the family context as well. Even though children are not considered to be an endangered category from a medical perspective, they are adversely affected by the pandemic in practically all aspects of life, in the short-term and in the long-term. One of the child’s rights directly affected is the right to maintain direct contact with both parents on a regular basis. Digital means of communication can somewhat mitigate the lack of personal contact, however, not everyone has access to the necessary technologies and there might be various disagreements about exercising such indirect contact. The closure of judiciary and social services placed the burden of resolving contact related disputes almost entirely upon parents. This paper aims to examine the relevant legal framework and measures taken in relation to the child’s right to maintain contact with both parents in the circumstances of the pandemic, with particular focus on the Croatian context and the response of the Croatian authorities to the challenges arising from this extraordinary situation, and to identify actions which could be taken in order to improve the child’s unfavourable position.

Ridgway, Phillip, ‘Family Law and Evidence: Covert Recordings in Family Law’ (2020) 72 LSJ: Law Society of NSW Journal 82–83
Abstract: COVID-19 has forced families into close confines for extended periods of time, not only during lockdowns, but also as a result of the work-from-home and home-schooling arrangements which have become commonplace as we navigate life during the pandemic .In March and April 2020, the Family Court recorded a 39 per cent increase in urgent applications filed. The rate of domestic violence has also spiked, with one survey by the Australian Institute of Criminology reporting a 53 per cent increase in the frequency and severity of family violence during the pandemic.Thanks to smartphones, most Australians now have a device at their fingertips which can make audio and video recordings at the click of a button. While the use of audio and video recordings in Family Court proceedings is not new, it seems almost inevitable that family law practitioners will soon face an increase in parents seeking to rely upon recordings taken surreptitiously during COVID lockdowns. It is therefore timely to consider whether such recordings are legal, whether they may have any use in Family Court proceedings, and the various matters to consider if a client presents you with such a recording.

Robins, Imogen, ‘Financial Remedies after COVID-19: What Can We Expect?’ (2020) 50(July) Family Law 904–908
Abstract: Discusses how the coronavirus pandemic may affect litigation for financial remedies on divorce. Considers the impact of lockdown on courts’ procedure, advantages of alternative dispute resolution, valuation of investments, and the possibility of varying existing orders.

Rosenberg, Lee, ‘Love and Family Law in the Time of COVID-19’ (2020) 52(2) NYSBA Family Law Review 4–12
Extract from Introduction: As New York State gradually entered ‘Phase 1’ and then moved forward to where are standing at the time of this editorial, those who practiced ‘family law’ were, with limited exceptions, incredulously considered ‘nonessential.’ How that was even remotely possible, given the kind of services we perform for families already in crisis, is an absurdity. The bench and bar and their staffs were given short-shrift, and families, except in the most exigent circumstances, could not get their day in court nor even file new actions for a prolonged period of time. Despite the court system requiring special ‘Matrimonial Rules’ for practicing in this field and the talk of the need to protect families, for some reason, it still feels as if other areas of law take precedence. It seems rare that any matrimonial lawyers are even asked to participate and serve on those task forces empowered to offer opinions on over-arching policy matters that affect what we do and those we represent. Clients and self-represented litigants frustrated—as the bench and bar were—with the lack of access to the system, which was finally and miraculously pulled into the age of technology, could not understand how they were in limbo at home as well as in court. Through it all, lawyers, judges, legal assistants, paralegals, court personnel, with a built-in need to serve justice, still had to rightfully worry about themselves and their own families. ‘Balance,’ a repeated mantra for some time now, but rarely found and usually beyond our grasp, is now thrust squarely to the forefront– sometimes as a mandate in our own households. And so, as we have transitioned to virtual appearances, electronic filing, and with in-person matters at hand—at least to some degree, where do we go from here and how does this still on-going experience affect the practice of law and the advice we give?

Saladino, Rosa and Suzanne Christie, ‘Family Law: The Limits of the “Hague Convention” in Child Abduction Cases’ (2020) 67 LSJ: Law Society of NSW Journal 84
Abstract: In the recent decision of ‘Walpole’ [2020] FamCAFC 65, the Full Court of the Family Court allowed an appeal against orders requiring two children aged three and two to return to New Zealand. The case was brought under the ‘Family Law (Child Abduction) Regulations 1986’ which give effect in Australia to the ‘Hague Convention on the Civil Aspects of International Child Abduction’. The case is one of the first to provide guidance as to how the Family Court might handle cases in the time of COVID 19.

Smyth, Bruce M et al, ‘COVID-19 in Australia: Impacts on Separated Families, Family Law Professionals, and Family Courts’ (2020) 58(4) 1022-1039 Family Court Review_
_Abstract: Around the globe, many families are experiencing significant anxieties linked to COVID-19. These include health concerns and economic pressures, both of which are frequently taking place against a backdrop of various levels of social isolation. In addition, many parents have been juggling home schooling requirements in the face of radically different work arrangements including the loss of employment altogether. Unsurprisingly, additional challenges and stresses are emerging for separated families, family law professionals, and family courts. In this article – written at a point-in-time in a rapidly evolving COVID-19 context – we reflect on key challenges for separated families in Australia, and some of the emerging professional responses.

Tully, Matthew Brunsdon, ‘Virtual Family Courts: The Effect on Participants’ (2021) 164(7) Solicitors Journal 44-47
Extract from Introduction: The covid-19 pandemic has changed all of our lives, in ways that would not have been imaginable for most of us before the first lockdown. For most lawyers, even those involved in litigation, which would ordinarily require them to attend court for hearings, working from home has become the norm, as have remote hearings. We are all trying to work out how this will affect our working practices in the future. Are we moving towards the era of the virtual justice system – and even the virtual law firm? Or are we going to see, at some point in the hoped-for, not too distant, future, a move back to in person meetings, the court building, and to the office, and something akin to ‘business as usual’? Or is the likely outcome somewhere in the middle – are we going to retain elements of working, and litigating, from home, but ultimately retain office space and the need for some hearings or alternative dispute resolution (ADR) to be in person?

Walklett, Chris, ‘Coronavirus and the Expert Witness: Valuation Instructions’ (2020) 50(July) Family Law 909–910
Abstract: Discusses how the coronavirus pandemic has affected share valuation for the purposes of financial remedies on divorce. Considers the significance of earnings, multiples and assets.

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