Living in a remote community can have its challenges, particularly if you are involved in a matter before the Federal Circuit Court or Family Court. Unlike the Magistrates Court which has numerous Country Circuit Court locations around South Australia, the Federal Circuit Court and Family Court sits in Adelaide with the only circuit being in Mount Gambier. COVID-19 restrictions has added another layer of complexity.
If I’m from the country, do I have to attend Court in person?
In accordance with the Family Law Rules 2004, there is a requirement that you attend Court events in person, regardless of where you live.
If you have a lawyer, it is also required that they attend. Your lawyer may suggest that a barrister is instructed to attend Court events on their behalf. Barristers are lawyers which specialise in an area of law and attend Court events on a day to day basis. Their specialised skill and knowledge is useful if there is a level of complexity to your matter and also if negotiations or arguments before the Judge are required.
There are occasions, however, where the lawyer or barrister attends Court without the client. It is becoming more commonplace for Judges to accept non-attendance by clients if they are otherwise represented by a lawyer and/or barrister, particularly if the client lives a significant distance from Court. Some Judges however, may make an Order requiring you to attend a Court event with your lawyer and/or barrister.
If you do not have a lawyer, or your lawyer/barrister is unable to attend in person, then a Telephone/Video Link Attendance Request may be provided to the Court at least five days prior to the Court event. There is no guarantee, however, that the Court will approve the request.
There are some Court events, such as appointments for a Family Assessment Report, that require your attendance in person, as the nature of the event is not compatible via telephone/video.
Will I miss out on anything if my lawyer/barrister attends without me?
If you do not attend a Court event with your lawyer/barrister, it is likely that they will telephone you to obtain your instructions when necessary, particularly if there are negotiations occurring between them and your ex. We therefore suggest you be available by telephone during your Court event.
Your lawyer is also likely to give you a summary of the Court event and what the outcome was.
Even if you speak with your lawyer/barrister on the telephone or receive a summary of the outcome, you may feel somewhat disconnected from the Court event. You will also not have the benefit of seeing the process unfold which may aid your understanding of what transpired and the ultimate outcome.
Whilst we understand that it may take significant time and costs to travel to Adelaide, we sometimes suggest clients make every effort to attend Court in person. This will ensure that you feel fully involved in the Court event and outcome, and will also ensure that you are complying with the requirements of the Family Law Rules 2004.
How has COVID-19 affected attendance at the Federal Circuit Court and Family Court?
Apart from appointments for Family Assessment Reports, the Courts currently do not require attendance in person and the majority of Court events are proceeding by telephone.
The Court events are therefore being conducted in a teleconference setting, so all parties can speak/hear each other together with the Judge/Registrar. Prior to the Court event, the parties will be sent an email with the contact number and passcode to the teleconference and request the parties dial in at the allocated time.
Whilst it is unclear when the Court will return to its usual practice of attendances in person, the teleconference system is particularly beneficial for country clients as they can avoid the time and money spent in travelling to Adelaide to attend Court in person. Perhaps COVID-19 will be a blessing in disguise and pave the way for teleconferences becoming more acceptable.
What if I don’t attend Court and there is no one to represent me?
This is a very undesirable outcome and may have a severe impact on your matter.
If you are the applicant, there is a risk that your application may be dismissed i.e. “thrown out”. An Order could be made requiring you to pay your ex’s legal fees associated with preparing for the Court event and instructing a lawyer/barrister to attend Court on their behalf.
If you are the respondent, your matter may be proceed undefended and Orders may be made in your absence.
There has been a recent case in the Family Court between a husband, Mr Fazarri and wife, Ms Hsiao in relation to property settlement and spousal maintenance orders; Fazarri & Hsiao  FamCA 446 (19 June 2018).
On the first day of the trial, the wife attended by herself without any legal representation. The wife previously had a lawyer however they had chosen to no longer act for her. The wife made an application that the trial be adjourned.
When the Court considers an application for an adjournment, there are five questions to consider:
- Why the applicant is not ready;
- If not ready, when will they be ready;
- What explanation (if any) is there for the lack of readiness;
- Would there be a prejudice to the person applying; and
- Would there be a prejudice to the other litigant.
The Court will also be mindful that litigants have a right to have the Court determine their matter expeditiously, and if any delay will be considered a waste of the Court’s resources.
The Court found that the wife did not have satisfactory answers to the above. The adjournment was dismissed and the trial therefore continued.
On the second day of the trial, the wife did not attend nor did she have any legal representation. The trial continued on an undefended basis, and final property orders were made in the absence on the wife.
Six months later, the wife appealed the final orders and made an application to produce more evidence to support her case. The Court dismissed her application, as they found that the evidence could have been provided during the trial, but she chose not to attend.
The wife’s entire appeal was dismissed and therefore no variation was made to the final orders.
It is therefore important to speak with your lawyer and obtain their advice about attending Court events, as non-attendance can have unfortunate results.
Mia Chenoweth is a family lawyer from our Port Lincoln office. Mia lives in Port Lincoln, and is familiar with the difficulties her clients face with a Court located 650km away. Get in touch with Mia so she can help you with your Family Law issues including divorce, property settlement and children’s matters.