As the world adapts to its new normal – staying 1.5 metres apart; working from home; sharing a coffee over Zoom rather than in the café – the Family Law Courts are making their own adaptations as to how trials are conducted in light of the COVID-19 pandemic.
The Court has been clear to confirm that trials will continue; however the manner of how the trials are conducted will be different, and the Court will need to prioritise matters involving the most vulnerable, especially those impacted by family violence and children at risk.
Most trials will be conducted by Audio Visual Link. The Judge, barristers, solicitors, parties and witnesses will all be part of the link; however may not all be visible on the screen at all times. The Judge and advocates (usually a barrister at a trial) will be visible. Where possible, the parties will be visible, except if their place needs to be taken by a witness in their case (giving evidence at that point in time).
There may be instances where the Court deems the case unsuitable to be conducted by Audio Visual Link. In these circumstances, the case will be conducted by telephone; with all parties part of the telephone link.
In the very rarest of cases, Judges may elect to hear the case (or parts of the case) ‘in person’, in which case the matter will be heard for up to 1.5 hours. At the conclusion of this time the court will close and be thoroughly cleaned. It is currently unclear whether the court will allow the matter (or other matters) to resume after this time, or whether the limit of 1.5 hours is a daily limit for ‘in person’ appearances.
Of course, conducting trials by audio visual link and telephone present challenges to the Court and the advocates such as:
• How documents are handed up to the Judge and witnesses (and shown to the other advocates) during the trial;
• How the solicitors and / or parties communicate with, and convey instructions to, the barristers during the hearings;
• How to ensure that children (who are home from school, and largely homebound) are not exposed to the contents of the hearing; and
• How to ensure that other members of the household, especially those who are witnesses in the proceedings, do not hear or become aware of the evidence that has been given by others in the proceedings.
The Court and local practitioners’ associations are working together to develop innovative ways to address these challenges to ensure that family law trials can continue as far as possible and avoid delays to families who need their matters heard and determined.