Navigating the Family Court in COVID-19 lockdown

Navigating the Family Court in COVID-19 lockdown

You can continue to obtain legal advice regarding your matter if it is currently before the Court, or regarding any requirement for any future application to the Court, should that be necessary.  While our physical office at Malley & Co is closed we continue to work remotely and are available during normal working hours to assist in all aspects of family law matters.

During COVID-19 Level 4, the Court is not physically open for parties or lawyers to file documents. However, urgent applications are still able to be submitted and accepted for filing electronically. Hard copies are not to be posted or delivered to the Court.

It is requested that only urgent applications are filed in Court during this Level 4 alert.  Only priority proceedings will be heard.   This means that only extreme and urgent matters  - for example,  Compulsory Treatment Orders, Protection and custody or care Orders, applications involving vulnerable parties such as welfare guardian or property orders – in other words - Orders to protect the at-risk or vulnerable, including children.

Filing documents with the Court

When filing any application in the Family Court, an affidavit confirming the evidence must also be filed.  If parties are not able to sign their affidavits or swear them in front of an independent lawyer or registrar, as per the usual practice, they will be accepted for filing by the Court and referred to a Judge for directions.

If a lawyer is acting for the applicant, and an application is made on a without notice basis, the lawyer acting is required to sign a certificate, saying:

“The affidavit was prepared in accordance with the deponent’s specific instructions. It was read to them or an electronic version provided to them. The deponent confirmed that they fully understood the affidavit and that the contents of it were true and correct.”

This can also be used for on notice applications when time is of the essence if affidavits can’t be sworn.  Alternatively, the lawyer is required to file a memorandum with the application:

• Confirming that the document contains the same evidentiary matter as the affidavit that the intending deponent would have sworn to or affirmed had an emergency not existed; and
• Undertaking that an affidavit containing the same evidentiary matter as that presented for filing will be filed as soon as circumstances reasonably permit.

If proceeding to file an on notice application the Courts have requested very specific information is provided so that a Judge deciding the case on the papers has all relevant information to deal with the application in a timely way.

Remote hearings

If a hearing during this period does proceed, then remote participation is to be used predominantly. For telephone hearings, any other documents that would usually be handed up in Court during a hearing must be emailed to the Registrar before the hearing. If a hearing does proceed during this time (in very limited situations) and the parties are attending a face-to-face hearing, the handing up of hard copy documents is not allowed given the virus can last on surfaces for up to 72 hours.