19 May 2020

Progressing family law disputes through Covid-19 in Australia

Portrait of Amanda Humphreys

Amanda Humphreys

Amanda Humphreys reports on how Australia's family courts and lawyers are coping with lockdown

Covid-19 was first confirmed in Australia in late January.  From 16 March 2020, unprecedented declarations of states of emergency were made by Australian states.  On 18 March a human biosecurity emergency was declared nationally.  On 20 March, Australia’s borders closed to non-residents.  

Since that time, Australian family law practitioners have been seeing families grappling with:

  • Implementation of parenting arrangements, parenting plans and orders, in the context of:
    • Increasing community protection measures, social distancing, social isolation and quarantine requirements
    • Extension of school holidays
    • Parents working from home
    • Children learning from home
    • Reduced access to childcare, contact centres and other supervisory services
    • Parents and children unable to travel to spend time with one another due to travel restrictions, state and federal border closures and quarantine requirements
    • Heightened anxiety and stress experienced by parents and children
  • Property and financial issues, including:
    • Loss of employment
    • Economic consequences for businesses and business valuations
    • Market changes impacting investments and superannuation
    • Changes in the real estate market and restrictions on auctions and open for inspections
  • Partners living separately under the one roof, unable to physically separate
  • Family violence (with an increase in number of family violence reports) and breaches of intervention orders
  • Child support issues, including the need to revisit child support obligations due to changed income and parenting arrangements
  • Contravention of existing court orders, agreements and longstanding arrangements
  • For some, the need to revisit previous court orders, agreements and arrangements, which may no longer be appropriate
  • Changed access to courts and other services

Most family law practices adapted their practice immediately, arranging for staff to work from home and continuing to assist clients by phone and email and using video conferencing facilities.   

On 17 March, the family law courts building in Sydney was closed upon receiving information that a person diagnosed with Covid-19 had attended the building the previous week. The court was cleaned thoroughly and cleared to re-open the following day.

Thereafter, Australia’s family law courts responded quickly. Initially changes to the courts’ operations saw urgent and priority matters prioritised, adopting social distancing measures.

On 26 March, the Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia issued a statement, Parenting orders and COVID-19, recognising the enormous impact of the pandemic on families and the Australian community.

The statement confirmed the courts remain open to assist parties, conducting hearings by videoconferencing and by telephone.  A protocol was also issued for face-to-face hearings, to be  accommodated in exceptional circumstances.

The statement provided guidance for families, making it clear that parents are expected to comply with court orders but recognising situations may arise that make strict compliance with orders very difficult, if not impossible.

The Chief Justice encouraged parents to communicate with one another and consider sensible and reasonable practical solutions to these difficulties, recommending family dispute resolution and mediation.

The Australian family law courts have continued to conduct virtual hearings, mostly by telephone and using Microsoft Teams. Instructions are issued in advance of the hearing by email, with dial in or videoconferencing details. The court has published a Practitioner and Litigant Guide to Virtual Hearings and Microsoft Teams.

On 31 March, a practice direction was issued by the Chief Justice, Special Measures in Response to COVID-19, implementing processes to supplement existing electronic filing and lodgement of documents and manage the inspection of subpoenaed and other documents.

The direction enables documents required to be signed (including affidavits, financial statements and consent orders), to be signed electronically, including by typing the signatory’s name. This relaxation is subject to a requirement that a deponent may be required to swear or affirm the content of such a document by phone or videoconference.

Amplified pressures on the courts as a result of Covid-19 has seen practitioners and litigants give greater consideration to arbitration, promoted as an alternative to long court delays. On 16 April 2020, the Chief Justice announced establishment of a new specialist list to support the development and promotion of arbitration for property matters, the National Arbitration List. National arbitration judges were appointed and a coordinating appeals judge for arbitration appeals.

On 28 April, the National Covid-19 List was announced, dedicated to deal exclusively with urgent family law disputes arising as a direct result of the pandemic. A practice direction was issued detailing the criteria for applications, operation of the list and providing specialist forms. 

Examples of cases suitable for the Covid-19 list include families impacted by border restrictions, parents or children testing positive for the coronavirus and increased risk of family violence due to Covid-19 restrictions.

Mediators and practitioners have been quick to adapt to mediation conducted by videoconference (Zoom being a popular platform), with many mediations being conducted effectively in this way to achieve negotiated outcomes.

The Family Law Section of the Law Council of Australia has responded well to support Australian family law practitioners, circulating news and information in regular email bulletins.

In March, the Section released a guide for practitioners to share with parent clients, Top Ten Guide for Separated Parents during Covid19.  A new ‘vlog’ from the section, The Duty List, features short videos from senior practitioners sharing case and practice updates with the aim of keeping members engaged and in touch with one another as they work in a virtual work space.

Many family law practitioners report heavier workloads as they support clients through existing family law disputes and new (frequently urgent and emotionally charged) Covid-19 related issues.

Some practitioners have responded with great agility, conducting their practices with the assistance of remote desktops, electronic files and various forms of electronic communication.

Others, unaccustomed to working with the technologies now required, report that they have struggled terribly. Many working parents are also impacted by the need to share their home office with and support children learning remotely from home while schools remain closed.   

The upsides of working remotely?  A short commute, Friday afternoon team drinks and trivia by Zoom, and every day is casual Friday (save for when appearing before the court by video!).

Amanda Humphreys is a special counsel at Taussig Cherrie Fildes in Melbourne

This article is part of the Family Law During Lockdown series. Click here for more commentary on how courts around the world are adapting to the impact of the pandemic.

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