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Mending family ties

5 challenges Family Law practitioners will face this year – and how to conquer them

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Published 14/02/2021

Published 14/02/2021

The legal landscape has been rapidly evolving thanks to the pandemic. From different client expectations to the arrival of virtual courtrooms, keeping pace with the sector’s changes has been no easy feat – especially for family lawyers.

Based on what we’ve been witnessing over the past 12 months, we speculate on the challenges that are likely to continue and emerge in the year ahead.

 

Managing anxious clients

Family law has always been an extremely emotional arena for clients.

With custody battles for example, parents are negotiating on the most precious thing in the world to them: their children. So understandably, these types of disputes have never been easy or straightforward to resolve.

But now, thanks to COVID-19, there are a myriad of added challenges – and anxieties – for separated parents.

For instance, both parties may now question if the other guardian is practising proper hygiene or taking their child to at-risk locations where there might be an outbreak. Or one parent may live in a known ‘hot spot’ area.

Not wanting to take risks with their child’s health, parents may be more likely to break custody arrangements.

Recognising these novel issues, the courts were quick to create the COVID-19 List, dedicated to dealing exclusively with urgent family law disputes that arise as a direct result of the pandemic.

However, as time progresses, small cracks in shared custody arrangements are turning into deep fractures. Indeed, many in the legal sector predict serious and complicated matters, such as parental alienation cases, are set to rise.

 

Parental alienation – are we friend or foe?

In this address on Judges Series Session 1, The Honourable Judge Steven Middleton of the Federal Court of Australia spoke about key trends surrounding parental alienation, and how custody matters are playing out in a COVID-19 climate.

 

Navigating the virtual courtroom

Before COVID-19, no Australian court had moved beyond pilot stage for virtual hearings. But with so many hearings delayed from mid-March 2020, the country was suddenly forced to embrace them.

Thanks to social distancing, it’s safe to say that people of all ages and backgrounds now know how to use video conferencing technology. But for lawyers, transitioning to the online world presented many more complex issues beyond knowing how to operate microphones and webcam.

Translating formal, long-standing courtroom processes into a digital space without established etiquette was especially challenging.

As legal academic Joe McIntyre muses, “Will any court expect people to stand and bow when the judge turns on their video? How do seating arrangements and the framing of the webcam shot affect perceptions of the seriousness of the process? Should counsel stand to make submissions? ...If a person is being disrespectful or disruptive during an online court hearing, can the problem be solved by muting that person or excluding them from the hearing?”

Nearly a year on from the first online hearings, and legal practitioners are still navigating these questions and issues.

 

Ethics and advocacy in family law

In his address at the Judges Series Session 2, attendee's heard the judge’s perspective into what makes a good advocate in court – and how this translates into a digital format.

Speaker The Honourable Justice Richard O'Brien of the Family Court of Western Australia will discussed the ethical challenges presented in family law and the obligations of practitioners.

 

Deterring clients from a clogged court system

Filing to trial periods have been increasing over time – even before COVID-19 placed extra strain on judicial processes.

In the coming 12 months, practitioners will have an obligation to try and deter clients from litigation, and shepherd them towards alternative dispute resolution.

Yes, mandatory mediation has long played a part in families seeking parenting orders for the courts. However, for the sake of clients’ best interests – and to ease the immense workload of the courts – conflict resolution will need to be taken a step further.

Because of this, expertise in collaborative practice and mediation will become increasingly important for all types of legal practitioners.

 

Policy, case management and ADR

In this address on Judges Series Session 2, attendee's heard about case management and the court’s priorities over the next year. The session looked at the impact of COVID-19 on case management, and the increasing importance of alternative dispute resolution.

The session featured  The Honourable Chief Justice William Alstergren QC, Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia.

 

Increased business insolvencies in equity claims

Many family matters have small businesses attached.

Although no one knows exactly when the government will pull the Job Keeper safety net away from businesses, it will happen.

Once these subsidies are gone, many family law practitioners will likely be dealing with property separations involving an increasing number of insolvencies.



Blurring property’s sharp lines: equity claims, financial resources and debts in the context of family law

In this address on Judges Series Session 1, attendee's heard about the judge’s perspective into the contemporary trends in property law in 2021.

Judge Grant Riethmuller, Federal Circuit Court of Australia shared his insights into previous cases, outcomes and best practice. 

Calculating contributions becoming more complicated

In family separations, calculating contributions is both a science and an art. Practitioners assess both parties’:

  • Financial contributions
  • Contributions as homemaker
  • Contributions as a parent and caregiver
  • Support of a partner to go out and earn money
  • Assets before entering the relationship

These factors are viewed in light of precedent in this space – with any good lawyer aiming to help their client come to a resolution without going to court.

However, with COVID-19, many parents were forced to work from home while also caring for or homeschooling their children. This has the potential to affect arguments about how much each partner contributes to parenting or caregiving – a line which may have once been very clear.

While it would be hard to argue this based on just one year of working from home, the pandemic has permanently changed the worldview on how and where people work. We’re seeing many workplaces permanently embracing (at least part-time) work-from-home arrangements with staff.


What have you ever done for me? Assessing contributions in property matters

In this address on Judges Series Session 3, you’ll hear a judge’s perspective into recent changes and new developments in assessing contributions.

With insights from The Honourable Justice Robert McClelland, Deputy Chief Justice, this live webinar on Friday, 26 March 2021 will earn you 2 CPD points.

REGISTER NOW

 

The insights you need in 2021 – direct from the bench

As a lawyer, your first duty is to the court – and the demonstration of justice. Your second duty is to your client. While you hear your client’s perspective regularly, the same can’t be said for the courts.

The 2021 Family Law Judges’ Series is your opportunity to hear from six judges from across Australia in a completely different setting. You will gain an insider’s perspective on:

  • The court’s approach to resolving matters and its priorities
  • How to better run your matters, both in general terms as well as how individual judges prefer things to run

This year’s event will be delivered wholly online to a national audience. Don’t miss this rare opportunity to hear directly from the bench.

REGISTER NOW