During this time when government legislations and personal situations change quickly, it’s important for legal practitioners to keep on top of things – and to know what they need to know.
We spoke to accredited family law specialist and College of Law family law practice leader Kathryn Kearley, who shares her insights on the key pandemic-induced changes in family law.
Enter the virtual courtroom
Throughout the pandemic, the Federal Circuit and Family Court of Australia has continued to perform their duties. But most hearings and mediations occurred via videoconferencing or telephone.
Family law specialist Kathryn Kearley, an adjunct lecturer at The College of Law, emphasises the need to be abreast of these changes.
“Legal practitioners must be up to speed with the way hearings are conducted,” she says. “These practice directions are not frozen. They’re constantly changing. And it’s incumbent on the practitioner to make sure you know the latest practice directions.”
So what’s different in the virtual courtroom – and what’s the same?
The principles of procedural fairness still apply. And you still need to adhere to the rules of court etiquette. You’re also expected to properly prepare for the hearing and have all your client documents in order.
Basically, you are to conduct yourself as if you were in a face-to-face hearing.
But of course, there are some small differences. For starters, you don’t need to stand up (since you’re at your laptop). You should also be familiar with the technology and how it works – and importantly, know when to mute yourself.
Kathryn believes there are huge benefits to online court proceedings. “It saves money and time. But you do need to be aware and know how things are run.”
Special COVID-19 list to fast-track urgent cases
The Family Court has established a national COVID-19 list to address urgent applications caused by the pandemic.
To be eligible for the list, the application must satisfy five criteria:
The matter must be a direct result of (or have a significant connection to) COVID.
The matter is urgent or a priority.
It must be accompanied by a special COVID template affidavit that addresses all the criteria.
The applicant must have unsuccessfully attempted to resolve the issue (if safe to do so).
The matter can be dealt with through videoconferencing or telephone.
Many issues and circumstances can fall under this list.
For example, vaccination-related disputes are a common one, especially in cases where one parent chooses not to vaccinate themselves – or might not want to vaccinate their children.
Other typical issues include:
Parenting arrangements or compliance with orders are affected by COVID-19-related employment (i.e. a parent is a frontline health worker).
An increase in risk due to family violence associated with the pandemic, including a breach of a court order.
A party is experiencing financial distress due to COVID-19 and requires urgent court orders for financial and maintenance issues (such as an application for occupation or sale of a property).
If your client’s application comes under this list, you can get a return date issued within 3 to 7 days – instead of having to wait months for a hearing date.
Parenting arrangements in a limbo
COVID has brought on unusual circumstances that may make strict compliance with court orders challenging. And in some cases, impossible.
Some orders require a parent to make contact at a designated contact centre. But the centre may be closed due to COVID restrictions.
A parent, or a close contact of that parent, has been exposed to COVID. And this means the child can’t safely move from one house to another.
Because of state border closures, the parent or the child cannot move in or out of the state.
Border restrictions, especially, have complicated shared parenting arrangements. It’s crucial that you and your client understand your state requirements and how they affect your client’s ability to comply with court orders.
In some cases, some families may try to change their parenting arrangements through the special COVID list. But Kathryn acknowledges that this is a difficult situation.
“You can’t change the circumstances. And you can’t argue that someone’s in breach of the orders if the kids can’t go into the state because the state won’t let them in.”
What family lawyers need to remember
Through it all, as a family lawyer, your role is to problem solve and be collaborative and conciliatory – while keeping costs proportionate to the matter. You need to help your clients navigate their issues and find a solution.
If the child can’t go in or come out of the state due to border closures, what are the other options? Can they spend time with the parent through FaceTime instead?
Or if your client can’t come to your office due to social distancing or self-isolation rules, what are the alternatives? Perhaps a tele-conference when they’re out for a walk?
Remember, dispute resolution in family law is mandatory. So it’s important to communicate with your clients clearly, ensure they engage with dispute resolution services, help them reach an agreement where possible – and document that agreement.
As Kathryn puts it: “Our role as family lawyers is to help the parties pinpoint the issues and come up with options. Then we help them reality test these options and finally, assist them to move to a workable solution that meets their children’s and their own needs.”
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