COVID rocks the family law system
The Australian family law system has suffered seismic shock with onset of the Covid-19 era. There has been a significant increase in work-load but the courts have taken the opportunity, too, to revolutionise their modus operandi, and institute long overdue reforms. These have improved the experience of many litigants, including those who are self-represented, though the challenge of meeting the technology remains for others. There have been major process and resourcing changes, and it is expected that the best of these will be retained, developed and broadened in their application into the future.
What are the trends in family law cases?
Since the commencement of lock-down, applications to the family courts are up by about a third and urgent applications are up by a whopping 70%.[1] Services report that the incidence of COVID-related family violence has spiked significantly too, although, worryingly, fewer victims are applying at the courts for protection orders. New issues in parenting cases include: health-related concerns around change-over, children being withheld, and closed border issues. Family lawyers anecdotally report, however, that many parents are trying to work through problems more cooperatively, trying to find creative responses to the extraordinary circumstances. Even the lawyers are being nicer to each other!
How have the family courts adjusted?
Firstly, it is important to note that the family courts and the associated services, like Legal Aid and community legal centres, have not shut down. But much more of what they do is now delivered online. At an early stage, the courts moved to get the majority of court events into an entirely online mode, using video conferencing and electronic filing. The court has also gone truly national, so that judicial resources can be allocated more efficiently. If there is a judge with some capacity in, say, Townsville, they may now be allocated to hear a case by video conference where the home registry is, say, Canberra. Mediation, Independent Children’s Lawyer and family consultant processes have also moved onto video conferencing platforms.
There is now a new fast-track process for urgent parenting matters, called the ‘The COVID-19 List’. This list addresses urgent parenting problems that have been exacerbated by the virus and lock-down conditions. This includes problems with supervised contact, medical conditions, family violence, cross-border or other restrictions caused by lock-down. The fast track process includes: video conference hearings for all eligible matters within 3 days of application (and 90% of applications are apparently eligible), shortened affidavits and easier witnessing requirements and template emails for writing to the registrar of the court outlining the conditions of urgency. Read all about the new process, including access to the templates and guidelines, here. The list is available for both new and ongoing cases. Interestingly, roughly 80% of the applicants to the new COVID-19 list are self-represented.[2]
Have there have been changes that affect property cases?
The move to electronic hearings and mediation events rather than face-to-face events, where this is possible, affects property cases as much as parenting, which is likely to improve the efficiency of pre-trial processes. There is still the problem however of the ridiculously lengthy delays before a final trial date, which arguably impacts a property case more greatly (because interim orders affecting property are less representative of final orders than in the parenting sphere). Even before COVID-19, the courts were issuing much stronger recommendations for couples who could afford the private fees, to agree to take their property cases off the public court lists to a registered private arbitrator for a binding decision on their settlement. Arbitration is a much quicker process. Additionally, now however, there has recently been a new National Arbitration List created. This will enable arbitrating parties to use certain litigation tools to smooth procedure even more, and will feature case management, to ensure that the potential efficiencies of arbitration are properly realised.
Ramifications for the future
Well, it looks like video conferencing in the family courts is here to stay. It is convenient and safe for litigants, and the courts are finding efficiencies using it. There will always be some face-to-face court action, however. Many people do not have digital expertise or hardware to manage preparation for or appearance at entirely electronic court events and the courts are conscious that the trend to new technologies should not disadvantage more vulnerable parties. But the court will continue its moves towards being a truly nationalised, agile court system. There will be continued creation of specialist lists and new numbers of court registrars performing strategic functions within cases that were previously managed by a judge.
There is a new and complex workload, and new efficiencies in the family law system, and yet not so much on the horizon in the way of funding increases that might have real impact on the time delays to final hearings, or to provide additional resources for self-represented parties. If anything, the existing services, like Legal Aid, will be even further stretched in the post-Covid environment, with the pressure likely to result in reduced services and tightened eligibility. But on the plus side, the courts seem increasingly and more effectively focussed on protection of children and the vulnerable, and in responding in more creative and contemporary ways to management of the caseload. And this is how it should be, as we emerge from lock-down into a world of new separation stress, the increased family violence risk that flows from that, and more mental health and difficult financial issues than ever.
[1] Chief Justice Alstergren, FLS Webinar for the legal profession, 21 May 2020.
[2] Registrar Brett McGrath, FLS Webinar.