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With the Family Court remaining open during Covid-19 lockdowns, a pivot to electronic hearings has actually led to greater efficiencies and a gentler process for the parties involved. By Sarah Price.

How remote hearings have changed the Family Court

In August, as Sydney approached its ninth week of lockdown, Chief Justice Will Alstergren issued a statement to clarify that as an essential service the Family Court would remain open. Balanced against current restrictions and public health directions, the court would continue to provide separated families access to justice. Soon after, on September 1, the Family Court merged with the Federal Circuit Court and began operating as the Federal Circuit and Family Court of Australia.

When Covid-19 reached Australia last year, courts in affected areas had to pivot towards remote work and electronic hearings. Those courts are now heavily reliant on technology: applications are filed electronically; subpoenas and documents are viewed online; most trials and other hearings are conducted remotely, via telephone or Microsoft Teams.

Some of this adds to the strain of court, and some of it relieves it. Sydney-based lawyer Lou Kyle, of KMJ Family Law in Ultimo, says change to the family court system is one of the “positives” to come out of the pandemic. Speaking to The Saturday Paper from a farm near Nowra, where she is working remotely, Kyle says that after initial delays the system is now actually functioning above its usual capacity. “Suddenly we were in lockdown and dealing with something like a bushfire … but everyone’s tried really hard. There have been great efforts made to get on top of things.”

Travel time is not billed and so costs are contained. There is less waiting around. Lawyers can easily appear in other jurisdictions. There is less stress on clients. Instructions can be sent by text. “There are,” Kyle says, “some real advantages to everyone being remote.”

Still, a virtual courtroom comes with its challenges: in contested hearings there are practical issues around technology. When a person is cross-examined in a remote location via video link the space around their body cannot be seen. “Really, you have to rely on the person to do the right thing,” Kyle says, “to not look at prepared notes and not take advice from anyone else who might be present off camera. We feel a lot more confident about the testing of evidence through cross-examination when we are face to face with the person sitting in the box.”

In an electronic court sitting there can be up to 30 people in one Microsoft Teams meeting or telephone conference. People are asked to turn off their microphones and videos until their matter is called, Kyle says, but many don’t. There is significant distortion: sighing, occasional swearing, the sounds of children in the background. A virtual courtroom also comes with its surprises: “Recently, when a barrister was in the middle of his submissions, a huge white fluffy cat jumped in front of his camera and he had to say, ‘Excuse me, Your Honour, I just have to remove my cat from the desk.’ Another story circulating is that of a barrister who didn’t realise he was on video and sat through the whole proceedings smoking cigarettes.”

 

In April last year, in an attempt to resolve issues that arose due to the pandemic, the Family Court introduced a special “Covid list”. The list deals exclusively with urgent disputes related to Covid-19: family violence escalation during lockdown; financial and maintenance issues due to the impact of the virus on people’s livelihoods; disputes over a child being vaccinated; non-compliance with parenting orders; and movement during state and international border restrictions.

Kyle’s colleague at KMJ, Amy McGowan, speaks to The Saturday Paper from her home in Sydney’s inner west where she is working and, with the help of her partner, homeschooling three children under the age of eight. McGowan is the director of advocacy for Rainbow Families, a charity that supports queer parents and their children. Under normal circumstances, she says, a “gorgeous part” of her job is assisting people to create a family – including through surrogacy. Even before the arrival of Covid-19, overseas surrogacy involved a complex administrative pathway back to Australia. Since the pandemic, that process has become almost impossible. “People were halfway through the surrogacy process when Covid struck and they had to negotiate the difficult task of bringing their child home during international border closures,” McGowan says. “It required intervention by ministers to bring the family back home.”

Where possible, Kyle says, she advises against parenting orders due to the rigidity they impose on people’s lives. During lockdowns, though, parenting orders are an advantage for some families. In the case of a same-sex family – perhaps with two mothers, two fathers, three children, separated geographically and without orders in place – there is an “extra layer of anxiety” in travelling between homes. “If they get stopped by the police, there is always a risk the individual officer will suffer homophobia. How do they [the parents] say, ‘We are the fathers and we are going to see our kids’? That is the layer of disadvantage same-sex families face – it is there and present. It is in their mind because they are gay men. Parenting orders would take that anxiety away. Having a piece of paper with a court stamp on it is a bigger authority than the homophobic cop that might stop them.”

The principle and law for same-sex families is about equality and non-discrimination, “but I don’t think that is the reality because everyone working in law enforcement and the family law space is a human being who has been socialised in our society. Historically that is a terribly homophobic society. For some it is difficult even to conceptualise a family with two mums or two dads, or two mums and two dads.”

 

This year a national survey of domestic and family violence agencies revealed a rise in the incidence and severity of family violence in Australia throughout the pandemic. Researchers from the Queensland University of Technology Centre for Justice revealed that more than two-thirds of service providers reported an increase in domestic abuse during lockdowns. Reports of more controlling and coercive behaviours have also increased. McGowan says stay-at-home orders have created a “pressure cooker” for some families, resulting in a significant rise in the number of urgent applications filed in the courts.

Kyle says that for people with a history of family violence, court attendance is often traumatic and can be disempowering. Safety concerns are magnified. There is “nervous energy” just in waiting around outside the courtroom. “When you put couples with high levels of acrimony in the same physical space there are all sorts of triggers. If somebody is fearful or intimidated by the other party, it can affect them in so many ways, including their ability to think clearly. It can completely shut people down.”

A litigant whose matter in the family court has entered its second year tells the The Saturday Paper the court process is “unimaginably hard … incessantly stressful … it really is another layer of trauma compounding the actual events which led me there in the first place”. During a recent mediation from home she says she felt safer, more relaxed and able to “find my voice and say the things I needed to”.

McGowan says: “The courts are tasked with making significant decisions about people’s family and future. While they provide opportunities to avoid imposing decisions on people’s lives, processes such as alternative dispute resolution are complicated when there’s a history of coercive control. When mediation does not succeed, there can be an underlying indication that the court is perplexed the parties have not agreed on seemingly straightforward decisions. That can be very overwhelming for clients.”

When she prepares a client for a court appearance in their own home McGowan talks to them about creating a comfortable space: using hot water bottles, having pets nearby, playing with fidget toys. “Whatever strategies they have in their toolkit to stay grounded. It is crucial they not only survive the courtroom experience but engage in it in a meaningful way. The process requires a lot from people. It’s vital to have trauma-informed practice when preparing them for court.”

To be able to attend court in their own home and have distance from the courthouse and from the other party offers real respite for many clients, McGowan says. There is now hope that as society opens again, some matters will still be dealt with remotely. “Surely this distance is a reasonable adjustment – no different from the ramp out the front of the court. I really hope that when the world opens up again, some of the efficiency and gentler approaches to litigation that have emerged during the pandemic will remain.”

This article was first published in the print edition of The Saturday Paper on Oct 2, 2021 as "Remote learnings".

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Sarah Price is a Sydney-based writer.