The Family Law Process – COVID-19

It is trite to say COVID-19 has affected the whole world and almost every industry.  The Family Law system in Australia is no exception.  When the Commonwealth government started rolling out restrictions in response to COVID-19, the Honourable Chief Justice and Judge of the already under resourced, under-financed and overworked Family Court and Federal Circuit Court of Australia, William Astergren, made it clear that the court’s processes must continue through the crisis.  As later expressed by the Chief Justice in the 2020 Annual Report:

…given the essential service the Court provides to Australian families, it was simply never an option for the Court to close or reduce its operations beyond what was absolutely necessary.”

What followed was the introduction of a suite of initiatives designed to address the need to reduce community transmission of COVID-19 while facilitating the continued operations of the court.  The first of those measures came in the form of the Joint Practice Direction 2 of 2020: Special Measures in Response to COVID-19, which, amongst other things, allowed parties to sign legal documents, including affidavits, electronically and without a witness. 

The courts, steeped in conservative tradition of black-and-white ink; face-to-face discussions, were quick to adopt and embrace digital filing of all court documents and the use of telecommunication technology to facilitate all manner of court-events. The Chief Justice highlights the Full Court of the Family Court:

…was the first appeal Court in the country to begin hearing Full Court appeals with a bench of here judges all sitting remotely, sometimes from three different locations around Australia.”

A simple mention before the court, which pre-COVID might have taken several hours including travel and wait times at the courthouse, could now take place in a matter of minutes, without the parties or their representatives leaving their home or offices.

The solicitors of Edwards Family Lawyers have prepared and run numerous court-appearances virtually since March 2021, ranging from those ten-minute mentions, to interim and final hearings requiring the cross-examination of parties by counsel.

To ensure the uninterrupted functioning of the court, it was forced to modernise processes.  Some of the benefits of those changes might and should survive the pandemic. 

Family Law Issues – COVID-19

With the pandemic came new issues in Family Law requiring careful navigation.

Considering the court is required to ascertain the content and value of matrimonial property, including real property and businesses, as at the date of the property settlement, the various lockdowns throughout the country rendered expert valuation reports outdated; and the new values were problematic.  For example, pre-COVID a café business might have been worth $500,000; but how much would a willing but not anxious purchaser pay for a café business in the middle of a lockdown?  Those matters are dealt with on a case-by-case basis, and adjournments might be sought where necessary.

But it is the realm of parenting disputes that a pronounced impact has been felt.  At the brink of the pandemic, solicitors were faced with parents contravening court orders by withholding a child from spending time with the other parent for the sake of minimising the child’s exposure to risk of contracting the virus.  While some of those contraventions stemmed from a genuine concern in the face of a disconcerting and developing crisis, for others, COVID-19 was used as an excuse for non-compliance.  

Perhaps most distressingly, serious issues emerged with respect to Family Violence.  Not only did the prevalence of allegations of family violence increase as a result of the various lockdowns throughout the country, but the pandemic provided fertile ground for a perpetrator to exert further violence and control.  Chief Executive Officer of Engender Equality, Alina Thomas, was reported to have said in an ABC interview:

When perpetrators were able to work from home and victims also had to work from home … or the perpetrator was able to use coronavirus as an excuse to make them work from home, stop seeing family, stop seeing friends, it meant that avenue of support of being able to access services was taken away from them.”

Social isolation is a tactic that is used by family violence perpetrators before coronavirus … [officially sanctioned] social isolation, endorsed by the authorities, definitely brought in a new layer of abuse.”

In April 2020, the court established the “National COVID-19 List”.  That list was established to deal with urgent matters filed as a direct result of, or with a significant connection to, the COVID-19 pandemic.  Such matters might include the need to address Orders which were frustrated by the pandemic, such as parenting orders governing parents living interstate, or requiring the use of a professional supervising agency; or seeking financial relief where a party is experiencing financial distress related to the impact of COVID-19.  After filing, the court internally assesses the eligibility criteria and then allocates a first return date within three business days if urgent, or seven business days if not urgent. 

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