Remote Family Hearings: Are They the Same?
Nadine Udorovic speaks about how the pandemic has impacted family law in Australia, whether remote hearings are the same as in-person hearings and if COVID-19 will change the way in which law will be practised in the future.
- What impact has the pandemic had on the legal sector in Australia?
The COVID-19 pandemic has had a significant impact on almost every aspect of the legal sector in Australia. In terms of legal practice, the profession has had to adapt to meet the needs of clients during this uncertain time. For instance, the Courts have changed their ordinary processes and have implemented new digital solutions to deal with the challenges presented by COVID-19. Hearings at the Family Court and Federal Circuit Court (which deals with less complex Family Law matters) are now being conducted virtually through either Microsoft Teams or AAPT Teleconferencing. Further, the COVID-19 Courts List was established on 29 April 2020 and is dedicated to dealing exclusively with urgent Family Law disputes that have arisen as a direct result of COVID-19.
The pandemic has also had an impact on the day to day practice of lawyers and barristers. Pursuant to the Practice Directions issued by the Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court, the Hon William Alstergren on 3 August 2020, all practitioners are now required to e-file and e-lodge all Court documents in order to facilitate the move to electronic management of matters.
Even ordinary working conditions have changed, with the majority of staff in almost every firm now working from home.
- Are remote hearings equally fair and just as in-person hearings?
The only difference between an in-person hearing and a remote (virtual) hearing is that the remote hearing is conducted via electronic means with the parties participating through digital platforms. The same strict rules of evidence and procedure still apply to remote hearings and all Court formalities are still expected to be complied with.
In this way there should, at least theoretically, be no difference in the fairness of the hearing. However, the new method of participation in Court hearings will be unfamiliar to litigants and may be particularly confusing for older, less technologically intuitive individuals. This is why the Family Court and Federal Circuit Court have published a practitioner and litigant guide to virtual hearings and Microsoft Teams to ensure everyone understands how to join the hearing. Prehearing preparation by the Court is also vital in ensuring that remote hearings provide a fair and just process.
- Many parents and families expressed concerns about remote hearings; what are common concerns and are they justified?
The most common concerns expressed by litigants relate to difficulty accessing or using the technology necessary for involvement in the remote hearing. Many people do not have easy access to computers and for some their poor internet connection renders a smooth hearing almost impossible. Linked with this concern is the concern that they will struggle to follow along with proceedings and participate in a meaningful way if their online connection is tenuous.
Given the nature of remote hearings, there are a number of barriers to natural justice that are presented.
Further, it has been argued that the lack of face-to-face contact in remote hearings create conditions in which hearings are not conducted with the same level of empathy that typically marks Family Law hearings. There is also the difficulty for litigants to give instructions to their lawyer during the hearing as there is often no facility on the video platform for a separate private chat, unless a separate Zoom meeting or telephone conference is established for clients and their legal teams. So often there is the challenge of having to move between Zoom meetings, phone calls and the Court hearing on multiple platforms which can be confusing and unsettling for litigants who are already under immense pressure.
These concerns appear to be justified and could reasonably have been expected with the move to remote hearings. Similar concerns have been raised in the UK (Nuffield Family Justice Observatory Report 2020).
- What barriers do remote hearings present?
Given the nature of remote hearings, there are a number of barriers to natural justice that are presented. As previously mentioned, the technological issues on the digital platforms can make the efficient running of matters next to impossible. Remote hearings also present significant issues for witness examination. It is very difficult for the Judge to read the body language of witnesses over video conference. Judges and Magistrates will usually take note of the witness’ body language when assessing the truthfulness of their evidence, so the limited visibility of the parties in remote hearings will make it much harder for them to get a feel for the evidence given. Additionally, the emailing of Court documents to witnesses during cross-examination and ensuring that everyone is looking at the same document can break the momentum of questioning and cause general confusion.
- How do you overcome these?
Due to the number of remote hearings currently taking place as well as the imperfect nature of modern videoconferencing it is likely that technological issues will persist as long as remote hearings are in use. Yet we are still in the early stages of their mainstream operation. Although the system will never be flawless, the supporting technology will continue to improve the more it is developed and issues presenting a barrier to a fair hearing will become less and less prevalent. The Court can also refine its processes so that remote hearings run more smoothly. Part of this involves the Courts preparing the parties for their remote hearing by sending them comprehensive guidelines as well as testing the platform before the trial.
Overcoming the difficulties in remote witness examination may prove quite difficult without significant improvements in the videoconferencing technology. Obviously, trials conducted via teleconferencing will remain an exception.
Online hearings are not without their shortcomings and careful thought should be put into deciding on their ongoing use for sensitive matters.
- Alternatively, how have remote hearings positively impacted family law proceedings?
There have certainly been positives that have come from the use of remote hearings. The flexibility of the Courts in opting for virtual hearings and allowing for urgent matters to be triaged has prevented the backlog of cases from becoming unmanageable during lockdown. As the parties are unable to hand paperwork to the Judge in Court there are greater efforts made to ensure all paperwork has been submitted well in advance of the hearing which has increased the efficiency of the trial. This saves litigants both time and money.
It can also be argued that attending Court virtually is less intimidating than attending physically, as although the formal rules of Court still apply the situation is quite different with each party in their own comfortable environment. It may also work better for those with young children at home who would have found the need for a carer difficult or expensive, not to mention for those not familiar with the Melbourne CBD or other built up areas, being able to remain in the comfort of your own home or familiar surroundings may be of assistance to some litigants.
- Do you think the pandemic and the temporary changes its brought will have a lasting impact in your area of law?
There have been calls throughout the profession to maintain the benefits of remote hearings in a post-COVID-19 world. If remote hearings can be seen as streamlining cases and resulting in a more efficient system for all parties it would seem stubborn to not embrace them in the future.
Yet what must be remembered is that any new mechanism should not be favoured at the expense of the proper process. Online hearings are not without their shortcomings and careful thought should be put into deciding on their ongoing use for sensitive matters. The judicial officers responsible for the running of the matter will ultimately be in charge of deciding what, if any, new technology will be used.
Nicholes Family Lawyers
Phone: + 613 9670 4122
Fax: + 613 9670 5122
Address: Level 12, 460 Lonsdale Street, Melbourne, Victoria, Australia 3000
Languages: English, Croatian
My name is Nadine Udorovic and I am a Partner at Nicholes Family Lawyers in Australia. Nicholes Family Lawyers is a leading specialist provider of Family Law services based in Melbourne with clients throughout Australia and internationally. I have practised exclusively in the area of family law for over 17 years with experience in a range of different areas including complex children’s and property matters, Intervention Orders, international child abduction and relocation matters, the preparation of binding financial agreements and child support agreements and adoption and surrogacy matters. I am also a qualified Collaborative Law Practitioner.
At Nicholes Family Lawyers, our practice is underpinned by a commitment to avoid litigation through the courts, where it is possible and preferable for our clients. In pursuit of this commitment, we utilise Alternative Dispute Resolution, specifically Collaborative Law, to assist clients with the arduous and often challenging nature of Family Law matters. Our lawyers, Managing Partner, Sally Nicholes, Partner Nadine Udorovic and Partner Rebecca Dahl are all qualified Collaborative Law Practitioners and are committed to pursuing its benefits in resolving Family Law disputes for those clients for whom it is an appropriate approach.
Collaborative Law is a process in which parties and their lawyers commit to resolving a family law dispute outside of litigation. Parties and their lawyers focus on reaching the best outcomes and solutions for the parties, rather than positional based negotiations. This has provided a positive for clients who choose to take that option. A key benefit of Collaborative Law is its accessibility and informality compared to traditional litigation.
The main distinction between Collaborative Practice as opposed to the usual methods of family dispute resolution is the avoidance of litigation, and the commitment to negotiation that does not operate in the shadow of the Court. Whilst clients opting to engage in Collaborative Practice could technically choose to abandon the process at any point, the nature of Collaborative Practice is such that if they choose this option they will not be able to retain the same legal team as this would go against the initial agreement.
All negotiations are confidential during the Collaborative process, and advice is given openly to both parties during a series of meetings involving both parties, their lawyers, and usually a neutral psychologist and financial expert. Further, we find that the legal costs associated with the Collaborative process are far less than when litigants are negotiating between lawyers and/or in the Court system. As such, this form of dispute resolution may be favourable to those undergoing a divorce or separation in the current legal climate. Indeed, due to the COVID-19 pandemic there has been a 39 per cent increase in urgent applications in the Family Court, and a 23 per cent increase in the Federal Circuit Court of Australia.
At Nicholes Family Lawyers, our lawyers are motivated to preserve peace, enhance good communication and assist couples reach a settlement without court intervention. To help clients achieve this one of the services we proudly offer is Collaborative Practice.