Federal courts and COVID-19


Budget Review 2020–21 Index

Michele Brennan

Additional funding has been provided to federal courts to support more timely resolution of issues in recognition of the impact of COVID-19 on courts generally and family law and family violence cases in particular.

Federal court funding

Since 1 July 2016, the Federal Court of Australia (FCA), the Family Court of Australia (Family Court) and the Federal Circuit Court of Australia (Federal Circuit Court) have shared a single administrative body with a single appropriation. (The Federal Circuit and Family Court of Australia Bill 2019, introduced into Parliament on 5 December 2019, proposes the merger of the Family Court and the Federal Circuit Court. The Bill is currently being examined by the Senate Legal and Constitutional Affairs Committee (the Committee), which is due to report by 20 November 2020.)

Impact of COVID-19

COVID-19 is having a ‘substantial impact’ on federal and state court functions, in civil and criminal cases throughout Australia, requiring modifications to practice and procedure, including minimising in-person attendance at court premises, restricting face-to-face registry services, conducting remote hearings, staggering hearing times and suspending jury trials. The Chief Justice of the Family Court, the Hon William Alstergren, in a statement issued on 26 March 2020, recognised the special impact that COVID-19 is having on parties to family law matters concerning parenting arrangements. In particular, Chief Justice Alstergren acknowledged that ‘in the highly unusual circumstances now faced by Australian parents and carers, there may be situations that arise that make strict compliance with current court orders very difficult, if not, impossible’, which in turn could lead to increased demand for changes to previously agreed parenting arrangements. Coupled with the modifications to court processes, this increase in demand has inevitably affected the timeliness of court outcomes.

To expedite urgent matters, the Family Court and Federal Circuit Court have each established National COVID-19 court lists ‘dedicated to dealing exclusively with urgent family law disputes that have arisen as a direct result of the COVID-19 pandemic’. If a case is accepted onto the list, it is dealt with in an expedited manner—the courts advise that cases on the lists will receive a first return date within three business days of the application being assessed, or more quickly if the application is assessed as critically urgent. The courts further advise that the following are examples of applications that may be suitable for filing in the COVID-19 list:

  • Supervised contact: the current parenting arrangements involve supervised contact, and the contact centre is closed or the supervisor is unable to perform their role, and the parties cannot agree on an alternative arrangement.
  • Border restrictions: the parties live in different States or Territories and the child cannot travel between the parties’ residences due to border restrictions.
  • Medical: the parties and/or child have tested positive for COVID-19 and cannot fulfil the parenting obligations due to sickness or concerns of infection.
  • Family violence: there has been an increase in risk due to family violence resulting from the restrictions imposed on families during the COVID-19 pandemic.

Relevant to the last point, a survey of 15,000 Australian women by the Australian Institute of Criminology (AIC) in May 2020 reported that ‘two-thirds of women who experienced physical or sexual violence by a current or former cohabiting partner since the start of the COVID-19 pandemic said the violence had started or escalated in the three months prior to the survey’. The AIC notes that various factors have been identified as contributing to a potential increase in both the prevalence and severity of domestic violence during the COVID-19 pandemic, including:

  • victims and offenders spending more time together;
  • increased social isolation and decreased social movement, which may restrict avenues for women to seek help;
  • increased situational stressors associated with domestic violence (e.g. financial stress and job insecurity);
  • offenders feeling out of control due to situational factors and using violence and abuse as a means of creating a sense of control; and
  • increased alcohol consumption among domestic violence perpetrators [citations removed].

This problem is not peculiar to Australia, with the United Nations recognising:

Violence against women and girls is increasing globally as the COVID-19 pandemic combines with economic and social stresses and measures to restrict contact and movement. Crowded homes, substance abuse, limited access to services and reduced peer support are exacerbating these conditions. Before the pandemic, it was estimated that one in three women will experience violence during their lifetimes. Many of these women are now trapped in their homes with their abusers.

Budget measures

It is in this context that the Government has provided the following court-related funding:

  • $35.7 million over four years from 2020-21 in additional resources and judges for the Federal Circuit Court to assist with the timely resolution of migration and family law matters (Budget Measures: Budget Paper No. 2: 2020–21, p. 56). The Family Court and Federal Circuit Court explained that in addition to contributing to the funding of existing positions, this measure will be used for four additional Federal Circuit Court judges, two additional migration registrars and five additional family law registrars, as well as their support staff.
  • $2.5 million over two years from 2020-21 for federal family law courts  to maintain specialised court lists  for urgent matters arising from COVID-19 (Budget Paper No. 2, p. 55). The Family Court and Federal Circuit Court explained that this measure will provide funding to 30 June 2022 for four registrars and two registrar support staff.
  • $7.7 million over four years from 2020-21 for works to improve the safety and security of the Rockhampton and Launceston Federal Circuit Court buildings (Budget Paper No. 2, p. 56).
  • $5.6 million over two years from 2020-21 to the states and the ACT to support the placement of state child protection and policing officials in family law courts to facilitate information sharing between family law, child protection and family violence systems (Federal Financial Relations: Budget Paper No. 3: 2020–21, p. 71). (Note that this funding is not reflected in the graph below, as it is provided to states and territories, rather than the courts.)
  • $4.8 million in 2020-21 to support the Family Violence and Cross-examination of Parties Scheme (Budget Paper No. 2, p. 56). (Note that this funding is not reflected in the graph below, as it is provided to legal aid commissions, rather than the courts.)
  • $1.8 million over four years from 2020-21 to implement Federal Family Violence Orders under the National Domestic Violence Order Scheme (Budget Paper No. 2, p. 56). (Note that this funding is not reflected in the graph below, as it is not provided to the courts.)

The Government notes that the increased funding will be ‘partially offset by an increase in Federal Circuit Court filing fees for migration litigants’ (Budget Paper No. 2, p. 56).

Graph 1 reflects the changes in federal court funding included in the Budget.

Graph 1–Federal Court, Family Court and Federal Circuit Court

Source: Australian Government, Portfolio budget statements 2020–21: budget related paper no. 1.2: Attorney-General's Portfolio, p. 253; Australian Government, Portfolio budget statements 2019–20: budget related paper no. 1.2: Attorney-General's Portfolio , p. 141; Australian Government, Portfolio budget statements 2018–19: budget related paper no. 1.2: Attorney-General's Portfolio, p.141; Australian Government, Portfolio budget statements 2017–18: budget related paper no. 1.2: Attorney-General's Portfolio, p. 218; Australian Government, Portfolio budget statements 2016–17: budget related paper no. 1.2: Attorney-General's Portfolio, p. 228.

Stakeholder and media comment

The Law Council of Australia ‘applauded’ the additional funding for the Federal Circuit Court, considering it ‘a step in the right direction’. However, the Law Council considered that the budgeted increase in Federal Circuit Court filing fees for migration litigants ‘is likely to increase social disadvantage to those who can least afford it’. The Law Council was also disappointed that the Budget did not provide additional funding for the legal assistance sector, stating ‘a properly funded legal assistance sector, together with adequate funding for Commonwealth courts and tribunals, are essential components to the COVID-19 crisis recovery’.

While welcoming the extra funding for the family law system, which she ‘hoped would speed up hearings for families in dangerous situations’, Women’s Safety NSW CEO Hayley Foster was critical of the lack of funding in the Budget to assist women escaping domestic violence.

Journalists Kishor Napier-Raman and Amber Schultz commented ‘Australia’s chronically backlogged, under-funded Family Court system will get a much needed injection of cash’ and speculated that ‘this could represent a shift for the Coalition, which has long toyed with a complete overhaul of the Family Court system’.

 

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