This has certainly been a difficult time for many of us, and there has not been a person who is not affected in some way by COVID-19. This is also true for families who are separating.
At the best of times, the family law system can be tricky and confusing. Do you need help signing Court documents? Are you facing issues regarding contact with your former partner? Do you want to resolve your family law dispute but do not know how to go about it?
To assist you, Doolan Wagner Family Lawyers have prepared a few ‘Frequently Asked Questions’ about family law processes during the COVID-19 pandemic.
- What if I don’t want to go to Court? Is there anything else that I can do?
In some cases, parties are required to seek Court intervention. However, for most separating couples, the Court system feels intrusive, deliberately litigious, and likely to damage any goodwill that parties have enjoyed with one another.
As such, the Courts have urged parties who have encountered issues with respect to their parenting arrangements to try, in the first instance, to reach a fair and reasonable compromise which still ensures that any Orders are complied with but also ensures that (as far as it is reasonably possible) they stay healthy and comply with social distancing requirements.
At this time, more than ever, it is critical for parents to come together and find a suitable compromise for any parenting arrangements for their children. Delays in the Court system are inevitable, and while they are attempting to mitigate those delays with the implementation of strategies mentioned above, it is up to the parties to resolve and reach a fair compromise where possible.
- How can my former partner and I attend mediation or resolve our matter without having to attend Court?
The best way a family law matter can resolve is by negotiation and consent. This not only promotes a better relationship between you both but means that you and your former partner can resolve your matter on your terms, and not be dictated to by the Court.
To assist many people who wish to undertake mediation, many mediation services, such as Relationships Australia, are offering mediations by telephone, zoom and other electronic means.
3. Do I have to sign in person? Can’t I just sign electronically?
With the exception of a few legal documents, the Court has released a Practice Direction (Practice Direction 2 of 2020 – Special Measures in Response to COVID-19) which provides that Court documents such as Affidavits, Financial Statements and Applications can all be executed electronically. In order to execute a document electronically, a party simply has to ‘type’ their name in the relevant space provided – often times where it states “signed by the deponent”.
This means that if you and your former partner have agreed to a family law settlement by consent, you are both able to electronically execute the settlement documents known as an Application for Consent Orders and Consent Orders.
Further, sworn evidence such as Affidavits and Financial Statements have traditionally been required to be executed in the presence of a Qualified Witness (such as a Justice of the Peace or Solicitor). However, the Court has also waived this requirement, thereby allowing these documents to be filed without a qualified witness also signing the documents. Given the significance of sworn evidence, the judicial officer may require the deponent to be made available by telephone or videoconference, to swear or affirm that the contents of the documents are true and correct and the best of their knowledge, information and belief at the appropriate Court event.
- Does this include ALL Court documents
Unfortunately, the executing exception does not include Divorce Applications. Meaning, the Affidavit of eFiling and all other subsequent documents relating to an Application for Divorce are required to be signed physically.
- Okay, so I can electronically execute family law documents. That’s great, but what about private agreements like a Binding Child Support Agreement. Does that still need to be executed in person?
As advised previously, the COVID-19 pandemic has had a tremendous impact on many long-standing institutions, including Services Australia. Fortunately, private Agreements with respect to Child Support Agreements can also be electronically executed by parties. However, there are a few minor requirements which will need to be included on the bottom of each page, namely:
- The parties’ full name;
- Date the document was executed; and
- The following statement – “please accept this as my electronic signature”.
If you do not comply with the above requirements, then Services Australia may not accept your Binding Child Support Agreement.
- Okay, I have filed an Application with the Court. What happens to my Court mention? I was supposed to attend the Court in person but now I am not so sure?
In an effort to ensure the safety and wellbeing of everyone, the Court has transitioned to a digital platform to conduct Court mentions and hearings. All Duty Lists are being conducted by Microsoft Teams or by telephone. The hearing times are likely to be staggered to alleviate congestion. Usually, you or your lawyer will be provided with updated hearing times prior to the Court event.
There may be a very small number of exceptional matters that will be dealt with face-to-face; however, these hearings will only be conducted with the leave of the Court. Of course, this process is not without its problems, and unfortunately, some non-urgent matters have had to be vacated due to technical issues. In the event this occurs, the Court will try and re-mention those matters in the next twelve (12) weeks to ensure that the case is managed appropriately.
- What about my final hearing – will that still be face-to-face? And realistically, how will my hearing be conducted by telephone?
In short, it is very unlikely that your matter will be face-to-face. Again, it is only with exceptional cases that a face-to-face hearing is conducted. Since the pandemic, the Court (which is famously stubborn to change) has conducted many interim and final hearings using Microsoft teams across the nation, whilst there may be some issues – they are largely dealt with as the hearing unfolds and generally speaking, the hearings are progressing reasonably.
To assist the Court in conducting these hearings in the future, the Courts have also transitioned to a Digital Court File (as from 14 April 2020). This means that Judges will have access to the Court file to ensure that the hearings can be conducted remotely. This is not only beneficial in the short term to ensure continuity and afford procedural fairness to all parties but it will also assist the Court in conducting these types of hearing long term.
Any matter that is currently listed for hearing with the Court will proceed electronically. If your case does require a face-to-face hearing, then it will be placed in a national pool and will be listed as soon as the Court permits ‘in-person’ hearings.
- What about other Court services – like the Child Dispute Service and a Conciliation Conference
In many cases, parties are ordered by the Court to meet with a family consultant to conduct a Child Dispute Conference or a Child Inclusive Conference. Just like the Courts, this service is also transitioning to a digital platform.
Interviews with adults are now being conducted by telephone and/or video link. For assessments that have a child inclusive element, the Family Consultant will consider whether this can be done remotely or ‘in person’.
An ‘in-person’ conference is only to be considered if the case is considered urgent and critical and only where a remote interview is not possible nor appropriate. This decision will be left to the Family Consultant to determine.
Other services, like mediation or a Conciliation Conference, are also to be conducted by telephone or by visual link. It is important to remember that even though these services are conducted by telephone, the Court rules and procedures must be followed.
- What happens if my case is urgent?
The Family Court of Australia and Federal Circuit Court of Australia have established a Court list dedicated to deal exclusively with urgent parenting-related disputes that have arisen due to the COVID-19 pandemic. This commenced on 29 April 2020.
The list is designed to quickly identify and deal with cases that require urgent attention due to the COVID-19 crisis. Usually, applications which deal with issues of risk and family violence will receive immediate attention and will be triaged by a Registrar who will assess the needs of the case and list the matter before a judge within seventy-two (72) hours of being assessed.
Initially, the COVID-19 list will operate for a period of three (3) months but will be assessed, as and when required.
- What is the criteria of the COVID-19 List and what sort of cases does it relate to?
The criteria of the COVID-19 list is quite simple. The Application must demonstrate that it has been filed as a direct result of the COVID-19 pandemic and that the matter is urgent. Parties are also required to make all reasonable attempts (if it is safe to do so) to resolve the matter without Court intervention.
Some of the matters which fall into the category of ‘urgency’ will be:
- Family violence – where there has been an increase in risk due to family violence resulting from restrictions imposed on families during the COVID-19 pandemic.
- Supervised contact – if the current parenting arrangements involve supervised contact and the contact centre is closed or the supervisor is unable to perform their role and the parties cannot agree on an alternative arrangement.
- Border restrictions – if the parties live in different states or territories and the child cannot travel between the parties’ residences due to border restrictions.
- Medical – the parties and/or the children have tested positive for COVID-19 and cannot fulfil the parenting obligations due to sickness or concerns of infection.
- I filed a Subpoena and now I want to view and/or photocopy the materials. What do I do?
To control the spread of COVID-19 – Subpoena viewing at all registries of the Court is by appointment only. Requests for appointments can be made by emailing the relevant registry.
Parties and/or legal representatives will be required to adhere to social distancing rules, including sitting 1.5 metres apart from one another. As such, only a limited number of people are provided with appointments to inspect Subpoena material.
It is also important to note that appointments to inspect subpoena materials should only be done if the matter is critically urgent. This means that if you are seeking to inspect documents at Court and your matter is not listed until December 2020, it is unlikely that you will receive an appointment on an urgent basis.
If you or someone you know is facing difficulties with their family law matter, please do not hesitate to contact us on (02) 9437 0010 or send us an email at firstname.lastname@example.org to discuss your matter in complete confidence.
Doolan Wagner Family Lawyers offer specialist family law advice, conveniently located in St Leonards on Sydney’s North Shore. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.
These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.