Family Law Update November 2020

Monday, 2 November 2020

Family Law Update November 2020

The Family Law Committee is pleased to introduce their new regular news update.

We would like to extend our thanks to the outgoing chair of the Family Law Committee, Andrea Evans, for her commitment and work on the committee and in representing the interests of family law practitioners in her role as chair of the committee over the last two years. Andrea has undertaken an enormous amount of work in her time as chair, with significant reform proposed by the Federal Government to the family law system, including proposed mergers of courts, Parliamentary Inquiries, and Law Reform Commission Inquiries and then Reports, together with the need to coordinate responses on behalf of the Law Society. Andrea continues to serve on the committee.

Family Court Application for Consent Orders

Registrar Crawley has requested that practitioners wishing to receive sealed Final Consent Orders prior to Christmas seek to file Applications for Consent Orders as soon as possible. Applications filed by 30 November 2020 can expect to be considered and approved or requisitions raised prior to the Christmas shutdown. Urgent applications filed after 30 November 2020 should be accompanied by a letter to the Registrar explaining any circumstances of urgency.

Registrar Crawley has been working to reduce the time between filing of applications and the applications being considered. Practitioners should expect a period of 3-4 weeks between filing and return/requisition.

New Notice of Risk form

Practitioners are reminded that the new Notice of Risk form is to be filed with all new applications and responses and by the Applicant where filing an Application for Consent Orders in parenting matters.

Court hearings, directions list etc

While the Court (Family and Federal Circuit Courts) are endeavouring to return to the preferred method of face-to-face court events, the Court continues to be subject to COVID-19 restrictions and this will continue to impact the way the Court conducts hearings, duty lists, mentions and all other court events well into 2021. The present arrangements are below but may change if circumstances require.

Final hearings in both courts will be conducted in person. Where there are multiple hearings listed before different judicial officers this might result in staggered start and finish times to manage the numbers of people in common areas. Evidence from expert witnesses and other agreed witnesses may be able to be conducted by Microsoft Teams.

In the Family Court other contentious matters (such as interim hearings and contraventions) will generally be conducted in person. In the Federal Circuit Court interim hearings will be conducted by telephone.

Directions Listings in the Family Court will generally be conducted by Microsoft Teams, and by telephone in the Federal Circuit Court.

All court events are subject to orders that may be made in those matters for different arrangements.

The Courts will issue further information in line with government health guidelines.

It should be noted that the Courts (including the Judiciary) are now operating using electronic files. We should all be mindful of this in our dealings with the Judiciary and Registry staff while they learn their new way of life!

Court Christmas Party

Unfortunately, the Court Christmas Party, which has been an institution for years, cannot be conducted this year due to COVID-19. If some other event is able to be arranged further information will be conveyed to practitioners.

Compliance with Practice Direction

Practitioners are reminded of the importance of complying with Practice Direction 1 of 2020 in relation to the length of material filed. The Court has indicated its ability to allocate time and resources to the listing, especially of interim matters, in adversely impacted by material that does not comply with the Practice Direction. The Practice Direction can be found on the Court’s website.

Documents produced under subpoena

The Court Registry has been providing documents to “inspecting” parties electronically where these have been provided to the Court in electronic form and are otherwise able to be inspected and photocopied. This practice will continue for the foreseeable future. Practitioners can deliver a ‘clean’ USB drive to the Registry staff who will copy the material onto the USB for later collection. Practitioners are reminded this does not apply to documents produced by police, medical records or child welfare authorities. Specific orders are required to copy these documents. Similarly documents that are produced in paper will require practitioners to make an appointment to inspect and copy.

Co-located AFP and CYPS representatives at Court

Representatives of the AFP and CYPS have been allocated and will be physically co-located with the Court to provide information to the Court, particularly in urgent matters. Practitioners may wish to consider seeking material by way of section 69ZW order rather than subpoena to avoid duplication and achieve a more timely response.

Legal Aid assistance to obtain Family Reports in limited circumstances

Legal Aid would like to advise practitioners that in particular matters, which will be dealt with on a case-by-case basis, there may be scope to obtain legal aid funding to pay for expert reports on the basis that such funding is repaid by the parties from their asset pool (for example with sale proceeds from a property). Matters that Legal Aid will consider relevant to an application of this sort would be things such as the size and nature of the asset pool, whether it is proposed that asset/s will be sold to reimburse Legal Aid, and the proposed timing of the reimbursement.

Practitioners should be aware that this kind of funding will not be available automatically and will be dealt with by the Grants Unit on special application in advance of parties making commitments to private experts. Any questions should be directed to Linda McGregor, Head of Practice, Family Litigation Practice, Legal Aid,

CPD for Family Lawyers

Lock in 24 March 2021 for a Family Law CPD Intensive to be held at the Boathouse. Details of the sessions and presenters will be released shortly.

Kevin Robinson
Chair, Family Law Committee
20 November 2020