COVID appeal: It was anticipated that the family courts would begin seeing appeals come through wherein litigants argued that they were not afforded a fair trial due to limitations caused by the court’s response to the COVID-19 pandemic. And now, a father who wanted to reopen parenting proceedings based on “technological issues” during his trial hearing has had his “COVID appeal” application summarily dismissed, with the courts saying the technology worked fine. Let’s have a quick look at what happened in this matter.
In the case of Khadem & Penk (court-appointed pseudonyms), the mother and the father were disputing matters relating to parenting of a 10 year old child. The father wished to appeal final parenting orders and filed an application seeking leave to reopen the hearing of the appeal “due to the appeal being impacted by technical difficulties from being heard remotely”. The father asserted that he was denied procedural fairness and a fair hearing as a result of aspects of the use of technology.
The father argued technology failed during his hearing and this had prevented his lawyer from making full submissions on his behalf, because the counsel couldn’t access the court book properly.
What was the problem with the father’s case?
If you want to argue there were technological problems during your trial, you need to be able to show that such technological problems were actually apparent to and noted by the technology users at the time. It’s very hard to argue later down the track that the technology didn’t work, when at the time nobody raised it as an issue.
In this case, neither the father nor his counsel alerted the court to any kind of technological failures or issues during the 1 hour and 20 minutes that the father’s submissions were being made. While the counsel did take “numerous pauses” during the arguments “whilst he apparently sought to access information from his own computer, on each occasion, counsel for the father was afforded such time as he apparently needed or sought in responding to any questions raised by the court.” At the time, there was no indication those pauses should be interpreted as struggles with technology.
“At no time did counsel for the father complain that he could not see the Court nor did counsel for the father apply for an adjournment, nor request the matter be stood down to attend to any technical difficulty from counsel for the father’s end.”
Can’t see the Bench
There was an attempt to argue that because the father’s counsel could not see the Bench (the judges) at all times, there was a denial of procedural fairness. However, there was no suggestion the counsel could not hear the Bench at all times, and that’s what actually matters. After all, as the appeal judges pointed out, plenty of hearings are conducted by telephone only.
Didn’t like having an electronic appeal book
Complaints about the electronic appeal book were dismissed, with the appeal judges noting that the family courts have “been conducting hearings of appeals using electronic documents for a substantial period of time commencing well prior to the current pandemic”. Any “discomfort” the father allegedly had with the use of the electronic appeal book or electronic transcript could have been avoided by printing out a hard copy or the whole or parts of it.
Use of Microsoft Teams
The Full Court of the Family Court of Australia has been using this technology in hearings (as have all Federal Courts) since the beginning of the COVID-19 pandemic in Australia.
From the point of view of the courts
“This Court’s experience was that the Microsoft Teams technology worked faultlessly during the hearing of the appeal. We could see and hear both parties’ counsel. There was comprehensive and socratic dialogue with counsel for the father.”
The appeal judges surmised that the father was only making the “COVID appeal” application asserting technology issues in order to get the chance to reargue his case and “to permit that to occur would be grossly unfair to the mother”. The father, being completely unsuccessful in his applications, was handed costs of $20,000.
You can read this case in full here.
You may also like to read our article on whether you could vary property orders due to the pandemic.
And you can find the Family Courts’ dedicated webpage for the COVID-19 pandemic here.
For family law help, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
