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It’s not something that was canvassed as part of the various family law inquiries and reviews in recent years, given these took place prior to the onset of the COVID-19 pandemic.  But it now looks set to become an important aspect of family law reform in Australia:  Just how should the justice system operate in the new normal?  Should changes that were implemented as a response to the pandemic be adopted as standard new practices, or should we revert to pre-pandemic court operations as soon as possible? Let’s take a quick look at this new debate.

Around the world, family law systems were drastically shaken up by the pandemic and forced to rapidly adapt.  But by using cutting-edge IT and cloud-based systems, team-based and videoconferencing technologies, many court hearings were able to be successfully conducted wholly electronically.

And now that we are seeing a light at the end of the COVID tunnel, many family law jurisdictions are considering whether such changes should be now adopted as standard operating procedure for courts.

In Australia, the debate over whether court hearings should remain virtual was aired at the recent Australian Bar Association conference, where the new NSW Chief Justice Andrew Bell discussed the issue with Will Alstergren, the Chief Justice of the Federal Circuit and Family Court of Australia, and the former NSW Supreme Court judge and Crown royal commissioner, Patricia Bergin.

At the conference, Chief Justice Bell advocated against “making the law even more remote” by continuing with default remote, virtual hearings.  He said this should only continue to occur in exceptional cases. Outlining his fundamental opposition to the idea, Bell said:

“Some would advocate a position where technology will become the master and not the servant. My strong view is the opposite. It is a servant. It shouldn’t overtake the process or replace the process. It shouldn’t swamp the process.”

However it would seem that these views are somewhat at odds with the views of family law practitioners.  Here in Australia, a Law Society survey conducted of 1500 legal practitioners in NSW found overwhelming support for keeping pandemic measures in place permanently.  The survey period occurred during 2021 when much of the country was going through lockdowns.

Similarly, over in Canada recently, 1000 family law practitioners signed a petition asking that all court attendances be “presumptively virtual unless parties agree otherwise or the presiding judge has a good reason to order that a particular attendance be in-person or hybrid”.

Pros of virtual hearings

Aside from the obvious protection from the transmission of communicable diseases like COVID, the main benefits of virtual hearings are widely regarded as being efficiency gains and cost savings as well as enabling enhanced access to justice. For instance, at the Bar conference, Will Alstergren pointed out that the measures had enabled many “vulnerable women and children to attend court hearings from a safe place”, thus improving access to justice.

Cons of virtual hearings

On the other hand, critics point to issues around virtual hearings including difficulties with technology, problems with participant distraction when they are not in the formal court setting, an inability for judicial officers to assess body language and other non-verbal cues, and increased difficulties for self-represented parties when dealing with a virtual proceeding. Further, the fear is that less human interaction and more isolation for practitioners will impact on how they are able to fulfil their duties.

Critics of virtual hearings are at pains to point out that they are not simply old-fashioned technophobes and that rather they are appropriately concerned with the impact of the use of technology on the administration of justice.

Solution could be hybrid model

Ultimately, as Bell said, “we need a nuanced approach to the use of technology. It may be that in some commercial cases and other essentially ‘documentary’ cases it will be more acceptable. Or in the hearing of appeals.”

Likewise, the Law Society does not argue that contested hearings and trials should be all conducted online, but suggests that operating virtually could be a benefit in non-contested matters and for case management of proceedings.

And according to the Law Society survey, respondents felt there should “always be an opportunity for court processes to take place in person”, depending on the unique circumstances of a matter.

In the end, the hope is that the family law system will simply keep in place those measures that are found to have benefited the justice system–both for consumers and practitioners.  The Law Society notes it’s down to the various Federal and state governments to now invest in court operations “to ensure efficiencies gained through the pandemic are not squandered”.

You can read the Federal Circuit and Family Court of Australia’s current advice on virtual hearings here.

If you need family law advice, 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.


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