With 2020 Hindsight:  The year in review from a Family Law perspective


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With 2020 Hindsight: The year in review from a Family Law perspective

2020 is not a year that we will forget in a hurry, although it’s one that most are happy to see coming to an end.

With only a few more business days left before we break for Christmas, I thought it might be nice to reflect on the year that was (if only for cathartic reasons).

It started off usual and well.  Plenty of work, everyone busy and looking forward to a year of growth and productivity.  By mid February the news of another SARS virus emerging from Asia was getting more air time on the news cycle, but certainly was not getting much traction from the general public.  In late February/early March, 2020 everyone knew someone who worked in the State Government Health System who was talking up this virus as likely to have an Armageddon-like impact on the Australian health system.  On 11 March, 2020 the World Health Organisation declared a pandemic.

Within days, international borders were locked down, millions of jobs were lost , the share market crashed and the Prime Minister was holding almost daily nationally televised addresses.  There was certainly a widespread level of fear which I have not personally encountered in my lifetime and which I can only imagine has previously been felt during periods of world war.  The fear was not so much about ones own health, but the uncertainty over their future, mostly in an economic sense.

Fortunately, Australia has been able to handle the economic and health crisis very well and has been a world leader, with no small thanks to our relatively small population and our geographic standing.

The above was experienced by all, but below are some of the things we experienced in family law as a result of COVID-19 :-

  • The Courts effectively shut down for a period of time.  I recall my last in person Court appearance being on 18 March, 2020.  It was a parenting matter.  I recall the Judge telling both lawyers, “go outside and work something out.  I won’t be determining anything today given the circumstances well known to yourselves“.  I recall asking the Judge, “Your Honour, it would assist knowing when the matter would likely next be before the Court so the parties know for what duration they need to turn their minds to“.  Her Honour responded, “Mr Brandon, you will appreciate that we are in gravely uncertain times and I simply cannot say when the Courts will be back running as normal“;
  • I recall the phones at the office barely rang throughout the month of April.  Homeschooling was underway for most and parents quickly learned what it was like to be a teacher.  I don’t think that anyone will ever question why teachers get so many holidays each year;
  • The Courts commenced to run its usual daily lists after about several weeks, but via telephone conferencing.  In time, Trials would recommence via the use of Microsoft Teams videoconferencing.  Whilst this way of conducting a Trial was warmly welcomed by the profession and parties seeking access to the Courts, it caused the Trial process to take longer due to issues with technology and lack of user competence;
  • A COVID-19 Practice Direction was rolled out by the Courts.  For example, there was a Direction which provided that Affidavits could be witnessed without the deponent having to be in the physical presence of the witness;
  • So as to ensure our Staff were protected and safe, there was a ban on all face to face client appointments, and Zoom Conferencing became all the rage.  Zoom was also the preferred way of conducting Mediations.  My experience of Zoom mediations were that they were as effective (in terms of reaching resolution) as face to face, but seemed to take far less time; and
  • There were plenty of memes going around the socials that family lawyers were going to be the major winners from lockdown and families being forced to spend more time together.  This has not been my experience and I was speaking with a Court Registry Staff member who said that the Court had received some requests during lockdown for the withdrawal of Divorce Applications, with the parties citing that being forced to spend time together provided an opportunity to work through relationship issues.

The biggest impact of COVID on family law is that it has caused an even greater backlog of work for the Courts.  Those months where matters were not dealt with has caused what many already considered a broken system to become even more overloaded.  Parties seeking access to the Court system are now exposed to even greater delays.

The Federal Government has announced a program called the Lighthouse Project, which is contended to be a response to cases which involve family violence, where resources will be prioritised so that less delay is experienced for those litigants.

The other initiative of the Federal Government has been a push to resolve matters via alternative dispute resolution (ADR) and the government has funded the appointment of a number of Registrars to each Registry, who will provide mediation services at very low to no cost to users.  I recently spoke with one of the newly appointed Registrars who advised that there is an abundance of work, but in the short time since being appointed, he has been able to assist many parties resolve their matters so as to be able to exit the Court system.

We sadly lost one of our Federal Circuit Court Judges this year in tragic circumstances, which highlighted the serious psychological impact on not only users of the Family Court system, but to those working within it – even Judges.  I have previously posted an article on the need to appoint more Judges to ease their workload and whilst that may be at a cost to the tax payer, I wondered out loud what are the long term costs to tax payers by having families (including children) caught up in the family law system for extended periods of time.

As I type this article, the Gold Coast (along with other parts of the Eastern Coast of Australia) is experiencing close to cyclonic conditions, with heavy rainfall, strong winds and high tides – washing away our beaches and breaching rivers and revetment walls.  I will, along with most, be happy to see 2020 washed away and I happily welcome the new year.

Merry Christmas.

relationship breakdown over the holidays
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