Going to Court in Family Law– Covid-19 & Beyond

Covid–19 has changed the way most of us work, the operation of Family Courts is no exception.

As an Accredited Family Law Specialist with over 19 years experience, it is my view the switch to online meetings will become a permanent feature and that we should all embrace this change.

What has changed

While the use of video linkup for certain procedural hearings is nothing new, during the Covid period the Family Courts have adopted the video meeting platform of Microsoft Teams to conduct nearly all hearings including some Final Contested hearings. This has resulted in hearings where Judge, Lawyers, clients and witnesses have participated from their homes or offices. Court ordered mediations have also taken place virtually.

So what’s my assessment of the “virtual courtroom” thus far. Here are a few preliminary observations on the pros and cons of virtual hearings and mediation conferences.

Advantages

• Convenience — Going to Court for Bendigonians can sometimes mean a trip 150 kilometres down the Calder to the Melbourne CBD. A long wait in a queue outside the security entrance can also follow. Regardless of the length of the hearing clients can expect a full day away from work or family. Virtual hearings however mean that you do not even need to get the car out of the garage. Once the hearing has concluded it may be back to work or other duties.
• Comfort — Physically entering a Court precinct and being in the physical presence of your ex-partner or spouse can be very intimidating. Court hearings in any forum are stressful but being in a safe and familiar environment can be very reassuring and allow parties to focus on the real legal issues to resolve their matter.
• Cost — Aside from your own costs of physically attending Court wherever that may be, the costs of your lawyer’s attendance can be significantly reduced as well. If a lawyer can appear for you from their work or home office, less time is lost on travel and waiting in court before the hearing to be called. The more efficient your lawyer can be the better it is for you.

Disadvantages

• Technology can fail — I am sure most of us have experienced plenty of Zoom conferences when the person you are communicating with has suddenly frozen. While no big deal if you are in the midst of a social chat, if such problems arise in the middle of an important court hearing, it can bring things to a grinding halt. Judges and Court officers have become incredibly adept and the use of electronic mediums but connection problems can still occur.
• Testing of the credibility of witnesses — This is no much a disadvantage but a significant limitation. Nothing replaces the ability to question and assess the credibility of what someone is saying from the witness box without being in close physical proximity to them. Most family law hearings do not witnesses to speak in court but for final contested hearings where the credibility of witness account are in issue, nothing replaces the traditional physical court forum.

• Judicial Respect and Control — While I am yet to experience any examples of participants going off the rails during virtual hearings, without the strict formalities of a Court room, professional courtesies and respect for the Judge amongst some participants may wane.

  One of the interesting things about virtual hearings is that while we have a “host” of the meeting, all participants are on the same level. There is no “Bar Table” where the advocates sit nor an elevated Bench where the Judge sits. These Court room fittings are all designed to ensure respect for judicial officers which is essential to the proper functioning of our judicial system. Developments in technology may however close the gap between the actual and virtual court room features.

Virtual hearings post-Covid will not be in place for all hearings particularly those hearings where so many relevant facts are in dispute. But for the many hearings of a procedural nature or where the most important facts are not in dispute, virtual hearings are likely to preferred by parties and experienced practitioners alike. Much will depend upon the skills of family lawyers in determining what the real issues are that the Judge needs to determine to best advise their client on the most appropriate forum for the hearing of their case.

I am proud to say O’Farrell Robertson McMahon is one of the leading firms when it comes to the embrace of new technologies to deliver expert legal services.

Sam McGee is a Director of O’Farrell Robertson McMahon and an Accredited Specialist in Family Law.