A Sydney mother stuck in lockdown recently successfully obtained an adjournment in her matter. In a “very difficult decision”, Brogden & Brogden (court ordered pseudonyms), the original final hearing date was vacated, with a new date now slated for January 2022. Since the onset of the pandemic, the courts have shown an unwillingness to grant adjournments specifically due to COVID-19-related reasons. So, why was this particular mother successful? Let’s take a look at seeking adjournments due to COVID.
[Seeking adjournments due to COVID – continued]
The courts have shown a preference for continuing with virtual hearings to get through matters and avoid adding to the existing court backlog. As we noted last year, many court hearings are now entirely electronic, using cutting-edge IT, cloud systems and team-based video conferencing technologies. While there have been numerous applications to courts to adjourn virtual hearings until they can be held in person in the old-fashioned way, many are embracing the new normal.
At the start of the pandemic, the Federal Court issued a “Special Measures in Response to COVID-19 Information Note”, in which it detailed operating arrangements for the Courts during the pandemic. The note specifies that remote hearings will continue except in genuinely exceptional circumstances.
But the pandemic itself has repeatedly been found not to constitute an “exceptional circumstance”. Rather, as noted, it has been framed as the new normal. As such, many matters seeking adjournment have found that there’s a very high threshold to meet in order to ask the court to adjourn a virtual hearing.
There are various reasons why people seek adjournments in their matter specifically because of COVID-19.
When might a COVID adjournment be allowed?
Some instances may be valid reasons to adjourn and matters are assessed on a case-by-case basis. For example (again according to the Court’s Pandemic Information Note), an adjournment might be allowed if there is a danger that continuing would result in a “second rate or substandard” hearing. Or, if parties might be exposed to unfair prejudice or procedural risk.
When will an adjournment probably not be allowed?
The court expects parties to help facilitate the delivery of justice during the pandemic, by being more flexible and willing to make accommodations to assist the courts. So, arguments about the impracticability or unreliability of electronic court books and the like have been unsuccessful.
Factors that have been rejected also include arguments about a court’s inability to assess the demeanour of witnesses as accurately as it could in an in-person hearing. But allegations that judges can’t properly assess credibility via virtual means have been dismissed, with courts pointing out that “the judge often has a clearer view of the witness on a screen than across the room in the witness box”.
But what if you simply want your matter adjourned so you can wait it out until the country opens up enough for you to have an in-person court hearing? It really depends on the reason why you feel you need to wait.
In the Brogden matter, the mother and her children are currently in lockdown and she would have had to participate electronically in her parenting matter’s final hearing. The fact that the mother would have had to attend virtual hearings while confined to the home alongside her children was enough to persuade the judge that it was inappropriate. The Independent Children’s Lawyer in the matter agreed it was not in the teenage children’s best interests to be present and in earshot of the mother’s vitual hearing, due to their inability to attend school during lockdown.
The court decided to change the dates til next January in the hopes that “by that time, all the indications are that it is likely NSW will be out of lockdown by reason of its population achieving a higher level of vaccination”. This increases the “possibility of a face-to-face hearing taking place”.
A second reason given by the court was that it would have been necessary for the judge “to form a view about the father as a witness”. However, this was posed as being of benefit to the father, rather than being about the court’s ability to assess his credibility:
“It seems to me that it would be fairer to him if that process was undertaken in a face-to-face trial, as opposed to leaving him at the mercy of the deficiencies of an electronic hearing”.
This last comment indicates an acceptance that substituting virtual hearings for in-person ones may be less than ideal.
Yet, as the pandemic continues to disrupt processes, it has also been noticed over the past year that there are benefits to virtual meetings over in-person ones. For instance, the Commonwealth Courts (including the FCFCOA) have adopted online dispute resolution solutions designed and delivered by Melbourne company Immediation. Processes mimic real life mediation and hearing sessions, but utilise video conferencing and other software developments. Experts believe there are actually benefits to virtual processes, for particular groups of vulnerable people. For example, those in situations involving family violence can potentially be kept safer through special features of the virtual mediations. Having witnessed firsthand the intimidation tactics sometimes used by participants in in-person mediation sessions, which can impact both on clients and on legal practitioners, our principal Cristina Huesch welcomed those developments.
Parties confined to their homes due to lockdowns and facing virtual parenting hearings may have recourse to seeking an adjournment if the children subject to the court hearing would have to be present too. If this situation applies to you, you should urgently speak with a family lawyer about how best to proceed.
You can find this judgment here.
Read more about seeking an adjournment in a family law matter generally.
And you can find all court-related COVID-19 updates at the dedicated FCFCOA page.
Do you need any help with a family law matter? Please contact Canberra family lawyer 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.