More Family Court COVID-19 arrangements

Following on from yesterday's news, the Family and Federal Circuit Courts have announced changes to registrars and child dispute services procedures in response to COVID-19, effective immediately:

FROM THE FAMILY COURT OF AUSTRALIA AND THE FEDERAL CIRCUIT COURT OF AUSTRALIA Managing the health and safety of the community, Judges and staff is our priority. Due to the escalating situation regarding COVID-19, and in anticipation of any further measures announced by Government, some urgent operational arrangements will be put in place effective immediately (unless otherwise noted) across the Family Court and the Federal Circuit Court (the ‘Courts’). The aim of the new arrangements is to ensure that all urgent and priority matters are able to be dealt with safely by the Courts, whilst at the same time, ensuring appropriate social distancing is adhered to. It is important to stress that the situation regarding COVID-19 is rapidly changing and the arrangements listed below are subject to change at short notice. It is expected that additional details clarifying the matters below, and updated protocols (for example, in relation to larger lists), will be disseminated shortly (as early as later today). Registrar events Divorce Lists 1. Where attendance is required, divorces will be conducted by telephone to the greatest extent possible, effective from Thursday, 19 March 2020 to the end of June 2020. 2. Joint applications – will be done by Registrars on the papers and parties are not required to attend Court. If a party has selected to attend at Q2(a) of the divorce application, they will be advised that attendance is not required. 3. Sole applications – Court attendance is not required if there are no children of the marriage. Parties and lawyers should not attend Court in-person under any circumstance. Court attendance is required (by the Act) if there are children under the age of 18 years. Attendance should be via telephone and parties and lawyers are requested not to attend Court in-person. Applicants will be sent an email advising that they are to attend a virtual courtroom and will be provided an AAPT number to dial-in to the virtual courtroom.  Communication to lawyers/parties 4. Where there are children under the age of 18 years, and Court attendance is required for sole applications, registry staff will send emails to lawyers and applicants advising that attendance should be via telephone. 5. If the applicant is seeking orders for dispensation of service, these will dealt with by telephone. Conduct of divorce lists 6. Divorce lists will be staggered into three time slots per day. Each time slot will have a maximum of 10-12 matters listed. The list will be split between two Registrars, facilitating staggering and telephone attendances. 7. Matters will be listed to the end of June 2020, allowing for increasing adjournment slots in July and August. FCoA Directions List 8. All Family Court Registrar Directions Lists will be conducted by telephone where limited to a procedural issue. 9. Where a matter is contested, written submissions are to be filed at the direction of Registrar with orders to be made in chambers. 10. There will be no requirement to attend Court in-person, attendance will be via telephone. Conferences (FCoA & FCC) 11. All Case Assessment Conferences and Conciliation Conferences will be conducted via telephone. 12. Practitioners and parties will be sent dial-in details with relevant AAPT account numbers. 13. Practitioners and parties are still required to provide/exchange the usual documents in advance of the Conciliation Conference (where ordered by the Judge) and proposed orders to both the Court and to the other party prior to the conference. 14. There will be no requirement to attend Court in-person. Circuits 15. Where possible, Registrars will utilise video/telephone alternatives for events that would otherwise be conducted on circuits. We are in the process of reviewing all circuit arrangements and the Courts will provide further information shortly. Discrete Property Lists, PPP500 Lists and Contravention Lists 16. Discrete Property Lists and PPP500 Lists will be conducted via telephone rather than in-person. 17. There will be no requirement to attend Court in-person, attendance will be via telephone. 18. All associated Conferences are to be conducted via telephone where possible. FCoA Senior Registrar Lists 19. Parties and practitioners should attend by telephone if possible. 20. The parties and practitioners are still required to provide a short case outline, identifying the evidence they wish to rely upon together with a minute of proposed orders. Documents for telephone hearings 21. Any documents that would usually be handed up on the day of an in-person hearing or conference, must now be provided by the parties by email to the Registry at least one business day in advance of the hearing or conference by telephone. CDS events Child Dispute Conferences 1. All Child Dispute Conferences (CDCs) will be conducted by telephone. 2. Parties will be sent dial-in details with relevant AAPT account numbers or, alternatively, will be asked to provide their contact details. 3. There will be no requirement to attend Court in-person. Child Inclusive Conferences 4. Existing orders for Child Inclusive Conferences (CICs) will, subject to the views of the Judge, be serviced as CDCs. We are actively discussing with Judges moving towards more CDCs (which can be done via telephone) rather than CICs for as many matters as possible, as quickly as possible. 5. Where a necessary CIC has been ordered, it will be conducted consistent with social distancing principles as far as possible.  Child Responsive Program (FCoA) 6. Meetings with the adult parties (MIA) will be conducted by telephone. 7. Necessary meetings with children (MCF) will proceed as arranged at the Registry. Family reports 8. Family report interviews scheduled will proceed as arranged, unless the parties are advised otherwise by CDS but will be conducted consistent with social distancing principles as far as possible.  Circuits 9. Where possible, Family Consultants will utilise telephone alternatives for CDCs that would otherwise be conducted on circuits. We are in the process of reviewing all circuit arrangements and the Courts will provide further information shortly.

Family Court puts in place COVID-19 arrangements

The Family Court of Australia and the Federal Circuit Court of Australia have today with immediate effect put in place new rules to deal with the challenge of COVID-19. One of the key rules is to do away with the cattle crush that often happens on busy duty days, by listing only urgent matters, using electronic appearances as much as possible, and limiting the number of people in the court room.

Here is the statement issued by the courts today:

The health and safety of the community, Judges and staff is the Courts’ priority. Therefore, due to the escalating situation regarding the coronavirus, and in anticipation of further measures likely to be announced by Government, some urgent operational arrangements will be put in place effective immediately regarding the listing of court work across the Family Court and the Federal Circuit Court. The aim of the new arrangements is to ensure that all urgent and priority matters are able to be dealt with safely by the courts, whilst at the same time, ensuring appropriate social distancing is adhered to.
Judges have been advised by the Chief Justice/Chief Judge of new arrangements, as follows:

All family law work

List arrangements and capping of number of people in each courtroom

Any trials or hearings that can be done by telephone should be.
Any high volume lists required to be conducted in person need to be staggered to reduce the number of people in attendance in the Registry, and the number of people to attend a courtroom at any one time (other than the judge and their support staff) is limited to 8 people (‘8 person in-court cap’). Any additional people involved in matters must remain outside the courtroom, or can appear by telephone if appropriate. All matters that can be appropriately conducted by telephone should proceed in that way.

Judge work – family law

1. Summer Campaign callovers

   The balance of the Sydney Federal Circuit Court callovers are to be vacated immediately and will be adjourned to a date to be fixed. Notifications have already been sent to the parties and practitioners for the matters that were listed today. Notifications will be sent to parties and practitioners today for matters listed for the rest of the week. The situation will be assessed on a regular basis, and the parties will be notified of new callover dates when that becomes possible.
   The callovers in the Federal Circuit Court in Brisbane, Parramatta and Adelaide will be postponed until an appropriate time. The situation will be monitored regularly and judges, local registry staff and parties will be contacted shortly.
   

2. Duty lists

   Duty lists should be reduced to only urgent or priority matters. Assessing which matters should remain listed is a matter for each Judge based on the nature of the cases in question.
   In terms of structuring the list, duty lists should be staggered throughout the day to be consistent with social distancing principles, and not exceeding the 8 person in-court cap.
   

3. Trials and other contested hearings

   Due to the nature of family law work, including child related and family violence aspects, urgent and priority hearings should remain listed, and be conducted in the safest manner possible. It may be that Judges consider conducting parts of the case by telephone where appropriate.
   Non-urgent property only matters may be adjourned for an appropriate period of time, and non-urgent parenting matters will be given similar consideration. Again these matters are at the discretion of the Judge.
   Any trials or hearings that can conducted by telephone or videoconference should take place in that way.
   

4. Circuits

   Circuits for the next two months are in the process of being reviewed and it may be that some matters will be adjourned or conducted by telephone. Further communications regarding circuits will be provided shortly.
   

5. Appeals

   At this stage, appeals are likely to be conducted only by videoconference or telephone where possible to reduce travel. Parties and practitioners will be contacted in the near future regarding upcoming appeal listings.
   

Official events and gatherings

All court based events, or attendances of the judiciary or court representatives at external events, will be cancelled or postponed, or conducted by telephone or videoconference if possible.

Registrar work and CDS work

A similar approach will be taken in respect of Registrar court lists and other work, and CDS work. Urgent plans are currently being developed and communications will be provided shortly.
It is also noted that Registrar migration lists have been suspended until July 2020 by the Federal Court, effective immediately.

Enquiries for parties or the profession

General enquires about the above matters should be directed, at first instance, to Michael Raine, via michael.raine@familycourt.gov.au or (08) 8219 1641.
Urgent enquiries should be directed to Chambers in the usual way.

Australia rated 19th for women's rights in business and the law- World Bank

With all the doom and gloom that comes with relationship breakdown, it is refreshing to do a reality check- and compare how women are treated under the law in Australia, compared to overseas.

Every two years the World Bank carries out a survey on Women, Business and the Law. I have been privileged to take part in the survey now three times, and am recognised by the World Bank as a local expert. 

With all the challenges that exist under the law to ensure that men and women are equal, overall, Australia is doing well internationally. The World Bank has rated Australia equal 19th (with Hungary) after:

• Belgium
• Canada
• Denmark
• France
• Iceland
• Latvia
• Luxembourg
• Sweden
• Estonia
• Finland
• Germany
• Greece
• Ireland
• Italy
• Netherlands
• Portugal
• Spain 
•  UK

The worst performing country was West Bank and Gaza on 26.3, just behind Yemen on 26.9, Sudan on 29.4 and Iran on 31.3. The USA by comparison rated 91.3, along with Albania, Cyprus and Taiwan.

Out of 100, Australia rates 96.9. Australia rates 100 for:

• mobility
• workplace
• pay
• marriage
• parenthood
• entrepreneurship
• assets.

Australia rates 75 for pension.

It is shocking that:

• 30% of countries restrict women's freedom of movement, including our neighbour, Papua New Guinea.
•  40% of countries have laws constraining women's decision to join and remain in the labor force, the worst including Sudan, Iran, Jordan and the UAE, but also to a degree- Malaysia, Singapore, Indonesia, Papua New Guinea, Solomon Islands and Vanuatu.
• More than two thirds of countries can improve legislation affecting women's pay. 
• Nearly 50% of countries can improve legal constraints related to marriage, including Malaysia, Indonesia and the Philippines.
• Australian  expectant and working mothers receive a wide range incentives which are amongst the most generous in the world.
•  In 115 countries women cannot run a business in the same way as men.
•  40% of countries limit women's property rights, the worst countries being Muslim countries in North Africa, the Middle East and South Asia plus South Sudan and Uganda. 

Australia is one of the countries where there can be different retirement ages between men and women. 

Why I love being a divorce lawyer

I once heard from a business associate that the whole point of life is that each of us exist to serve.  When I heard that statement, I thought: “Eureka!”.  That statement adapting to exactly why I help clients undergoing a divorce.

I have seen divorce or family lawyers like me lose their passion and become burnt out.  To put it bluntly, if you don’t like what you are doing, do something else. 

I like helping clients through a divorce because I want to make sure as far as I can that my clients can get up on their own feet and move forward.  There is nothing more pleasing to my soul to see someone who has been crushed during the process of a relationship breakup then blossom and grow with new life, having that vitality pumped back into them.

The lesson was given to me many years ago by a client who happened to phone up one Tuesday morning to thank me for my efforts (which had been 7 years before).  I told her that I was rather dissatisfied with the outcome.  Her perception and mine of what had occurred were completely different.  For me, I thought that there could have been a much better court outcome.  Her impression, however, was that my intervention had changed her life.  She said:

            “You changed my life.  Nobody believed in me, not even me.  Only one person believed in me, and that was you.”

My belief in my client and the justice of her cause meant that she was able to escape a very difficult relationship, obtain employment (despite having limited education), find love again – in a very happy, stable and secure relationship – and be loved by family and friends.

Somehow my actions in standing up for her and her rights had changed her life.

When I studied family law at university, I had no interest in it at all.  I considered that family law was akin to palm tree justice.  It had wobbly concepts and uncertain rules, full of discretion – unlike black letter law such as trusts, which have a storied legal tradition. 

To my surprise, shortly after commencing as a graduate in 1985, part of my workload immediately related to family law.  I soon realised the error of my ways.  I discovered that being a family lawyer – or as a divorce lawyer as most people know us – meant that I was helping real people with real problems.  Although as a former President of the Queensland Law Society and family lawyer once described it, family law is the most difficult area to practise in, it has in my view the greatest satisfaction.  Helping people get back on their own two feet so that they can look afresh at the world and look after their children and their finances is one of the most joyful jobs anyone could ever have.

I have been extremely lucky to serve clients over that time.  I decided to specialise in family law in 1988.  It has been my dominant area of practice since then. 

When the Queensland Law Society introduced Accreditation of Family Law Specialists in 1996, I was accepted as one of the first accredited specialists.  I have remained a Queensland Law Society Accredited Family Law Specialist since 1996.

For the last five years, I have been a Fellow of the International Academy of Family Lawyers, the most elite group of family lawyers in the world.  It truly says that I have peer recognition by my international and local peers for me to have been accepted as a Fellow.

I have been lucky as a family lawyer to write articles and undertake presentations concerning family law and divorce to other family lawyers and associated professionals such as social workers and psychologists. 

Despite the joy of writing and presenting, the true joy is to assist clients and help them get on their way after their relationship has broken down.  Helping give them that sense of purpose and getting them out of their mess as quickly as possible (and hopefully without going to court) gives me a keen sense of satisfaction that I have been lucky enough in my calling to serve others.

So what is the point of the Kevin Andrews/Pauline Hanson inquiry?

Last week I had the privilege of moderating a seminar in Brisbane about the future of family law.  The keynote speakers were two authors of the recent Australian Law Reform Commission report into the family law system – President of the Australian Law Reform Commission, Justice Sarah Derrington of the Federal Court, and retired Family Court judge Michelle May AM QC.  

Those keynote speakers were joined by Jo, a woman who had been subjected to domestic violence, experienced Independent Children’s Lawyer, solicitor and mediator Rob Grant, and barrister (and former solicitor, Adult Guardian and Family Court Registrar) Dianne Pendergast.

Justice Derrington made plain that the recommendation to have State Courts undertake family law has complications (including all the Family Court and Federal Circuit Court judges who have been appointed and have tenure until the age of 70 under the Constitution).  However, as she put it, the splitting of the family law system between child protection and domestic violence under the State systems and family law under the Federal system was a failure or, in her words: “was not fit for purpose”.  

The ALRC report is enormous.  It is comprehensive.  There are clear differences of opinion about some of the recommendations (as was set out by some of the comments from Rob Grant and Dianne Pendergast) but in broad terms it contains many common sense recommendations as to how to improve family law.

Her Honour went through in painstaking detail as to each of the terms of reference that was given to the Australian Law Reform Commission to undertake its report.  She also did a compare and contrast to set out each term of reference that the Kevin Andrews/Pauline Hanson family law inquiry was required to consider.  Every last term of reference was the same, save two:

• The standard of evidence undertaken in State domestic violence proceedings.  As her Honour noted, this is a State matter and therefore outside the terms of the Federal ALRC terms of refence.

• The interplay between the Family Law Act and the child support system.   

Given what her Honour described that these two facets were relatively minor, what is the point of the Parliamentary Committee report? The obvious answer is that some politicians may not like the answers in the ALRC report, and therefore seek to come up with a different outcome.  Her Honour detailed eight cases of several hundred ordinarily people who had gone through the family law system, voluntarily telling the ALRC of their story.  The eight cases were of women who had been subjected to domestic violence and, quite frankly, let down by their lawyers, police and the courts.  The stories they tell are sad and disgusting, in which issues of domestic violence are sidelined.  It seems as though the last 30 years of action to deal with domestic violence - at least in these cases- have somehow passed by the family law system.  One must wonder therefore that this failure to adequately deal with domestic violence in the family law system might in itself be one of the causes of such high rates of domestic violence now. After all, if there are no real consequences for perpetrators of domestic violence, they can keep continuing their bad behaviour- influencing their next partners and their children. 

Her Honour in undertaking the inquiry was assisted by many family law veterans.  Her Honour being a maritime lawyer looked at the family law system with fresh eyes.  In Australia we have no unitary court system where a single set of courts (with the partial exception of Western Australia) deal with domestic violence, child protection and family law – unlike our cousins across the Tasman in New Zealand.  

The sooner that our Governments bite the bullet and enable the one set of courts to deal with all the problems facing families, the better.  After all, then Justice Dessau recommended that course 30 years ago, but nothing has been done by Governments of both sides since then – except fiddling on the sidelines.  In Justice Derrington’s view, the sooner that there is fundamental reform of the system, the better. At the least, our children deserve that.