Podcast: The Children’s Court and COVID-19

Charlotte:

Hello and welcome to the Nicholes Family Lawyers podcast series. My name is Charlotte Wyles and I am an Associate at Nicholes Family Lawyers.  Today I am joined by fellow-Associate Alastair Noakes, to discuss the operations of the Children’s Court and the advancement of children’s matters during COVID-19, specifically looking at the recent Victorian Stage 4 lockdown. Today we are fortunate to be joined by Maureen Green who is a barrister specialising in all facets of family law and child protection.  Maureen has conducted trials in the Childrens’ Court and Family Court and has also appeals in the County Court.  Her extensive experience in counselling positions has enabled her to treat children’s matters sensitively and in a manner that is informed by practice and experience.  She has also held a position as a resident tutor at Newman College in Family Law and Constitutional and Administrative Law.

Thank you for joining us today, Maureen, to share your insights into the pressing matters which have arisen with respect to children and how these are being dealt with in the current climate. While the Family Court has been prioritising urgent matters, and often adjourning matters due to COVID-19 and associated restrictions, it is important that children’s matters are afforded the same urgency and attention as they always have been, irrespective of physical or core presence.  So welcome Maureen and Alastair.

Maureen:

Thank you, Charlotte for that lovely introduction.  It’s good to be here and to talk about what has been happening during the pandemic and in Stage 4 in particular.

Charlotte:

To kick it off, Maureen, I guess we could talk about the current stance of the Children’s Court regarding children’s matters and what is being classified as urgent and what is being adjourned to a later date.

Maureen:

Yes, well there have certainly been practice notices which have been sent out to all practitioners to really describe what is that, and I suppose the urgent matters ….first of all it is the Protection Application, obviously, by Emergency Care which hasn’t really changed, these are still happening and are going ahead, so if there is an Emergency Care application for maybe an unborn child or the breach of an Order, that will come in on the day; there is no change to that; and when I say come in on the day,  obviously it is not face-to-face at the moment, so that is a big change.     The other one – Breach by Emergency Care, so there might be a condition on an Order that might have been breached, there might be specifically family violence so that is going to come in, there is really no change to that.

There may be an application for a new Interim Accommodation Order which is due to placement breakdown, which would also be considered to be an urgent matter and obviously has to be addressed on the day that this occurs, and that will be brought in as well.  Applications for an urgent Interim variation for a Family Reunification Order. Often those sorts of applications will relate to contact, usually, and the other one would be any proceeding where a child is proposed to be placed on an Interim Accommodation Order to a secure welfare service, so that might be a child who is in residential care.  So these are really the five main urgent matters, that continues to be the case, and there will be submissions hearings in relation to those, so these would happen on the day.

Charlotte:

Maureen, you spoke about “on the day”, so obviously things are a little different at the moment.   Yourself, Alastair and I have experienced that it is now on a digital platform; how does that change things, especially for those urgent applications when you are not physically present at the Court?

Maureen:

Yes, you are not physically at Court but you have got the team of CPLO’s so the Child Protection barristers who might be briefed on the day and who are doing the Mention, so that would be in the Mention list so they are allocated that case, and then everyone is provided with the Form B, so what are the issues we are looking at,               so they will be forwarded onto whoever is representing the mother, father, child on the day so that everyone will be provided with the material online.  So it’s certainly more difficult but it seems to be working, I think it is ….there have been teething problems with it, making sure that everyone has got the material that they need.  You must be able to print out your Form B or have capacity to look at your computer and it actually helps to have two means of doing that, whether it is on the phone with your computer or with an IPad and a computer.  So that is how the process seems to be working.

So with the CPLO, they are allocated a certain number a day so if it is an emergency, that is allocated out for those who are appearing for the Department on the day and you might have duty lawyers in court, so it is more the solicitors who would be doing the Emergency Care Applications who are being allocated on the day.  They are ready to go straight away if an application is made by the Department.  Every attempt is made for parents to be involved so whether it is video and audio or perhaps just audio, but certainly, there is every attempt made to have everyone involved or all the parties to be able to have access to the process.

Alastair:

I have quite enjoyed the move to the digital platform, not only because you can do it from the comfort of your own home but because it has afforded clients that same opportunity.  I have a number of matters where parents are interstate or otherwise would only be involved in the proceedings or what I am able to explain to them over the phone but now they are actually able to be present in the virtual courtroom; they can be called upon by the court if needed, to provide explanations of issues in contention, or they can simply just feel that they are more of a presence in the decision-making process.

Maureen:

I think that is right.  It has certainly been my experience that if whoever is the presiding magistrate wants to speak directly to the client, they will respectfully ask if that is all right and always it is, so they are able to be joined in. I think that is a positive outcome for those concerned and certainly for those who would find it difficult to physically get to court, now they are finding that they just dial in and they are there.

Alastair:

I had a young man who joined the proceedings the other day on his smoko at work, so he did not need to take the day off to be part of the proceedings and also a young mother who had the child in her care and who did not have to arrange transport to court or find someone to take care of the child, she could just dial in at a convenient time while the child was asleep.

Maureen:

Yes, you talk about a convenient time, it is all …we are allocated time now, so whether it is 10.00 am or midday or 2 pm, so we know when we are to be dialled into Court, so we are not waiting around, generally, there might be a 5 minute wait but that is all.

Charlotte:

From an accessibility perspective, in the past, where you might have lived in a rural location and you try to find a lawyer, it might be hard, specially in a children’s court practice, a slightly smaller area of law, we are getting clients now who are not actually in Melbourne or even close to Melbourne.  In the past where they had to jump in the car, or get on the train, we can now see them and regularly meet them from the comfort of everyone’s home, as Alastair said, during breaks at work, so I think, we talk about access to justice.  One thing that this pandemic has shown us is that we can actually make it far more accessible than it has been in the past.

Maureen:

Yes, you raise an interesting point.  We talk about “COVID normal”, the whole system is going to look at whether or not we can use some of this moving forward as in this won’t change, will we be able to access this more often particularly with clients who have found this beneficial and who are some distance away and can find this of benefit by just linking in by way of a Zoom connection.  We have does this historically, particularly with witnesses in a hearing and for those who might be in custody – we have certainly does this in those instances as well but it might be the case that we can broaden the scope of it now.

Alastair:

I would be very disappointed to see the infrastructure and the training that has gone into having these hearings so readily available and able to occur virtually, I would be really disappointed to see that go, and just a return to the status quo once COVID normal has passed.

Charlotte:

I agree.

Maureen:

Well I think that with conciliation conferences, I think that they have worked particularly well. Often in the past I would find a parent for whatever reason and sometimes for no fault of theirs, they just haven’t been able to get to the conference, and we go nowhere.  But if we have the facility of having them dial in and even have the visual contact so they can feel more present in the conciliation conference, I think that is something that should be used a lot more moving forward.

Charlotte:

I think in the Children’s Court jurisdiction, which is arguably a touch more informal than other jurisdictions, it is the perfect space to try and get it off the ground just from an accessibility point of view, as Alastair said, it would be a real shame to see everything that they put into place now go by the wayside.  We would all like to see some things go back to normal, but there are definitely things we have learnt and developed in this time that can be used into the future.

Maureen:

Yes, I would hate to think that we would just use the digital platform only moving forward, rather than face-to-face.  From my perspective at the Bar, and I’m sure yours as well also, in a firm of solicitors, it is good to have those face-to-face times, and whilst you can do that on a digital platform it is not nearly as …..

Alastair:

Yes, it would be nice to see other people, even if it is for a day here and there!

Maureen:

Yes, as good as these changes have been, I think there is a disconnect too – you  don’t get that same closeness in that relationship that you had.  For each of us, particularly if you are running a contest you really do form quite a strong connection and relationship with your client.  Whilst you may do this through the Webex connection, it is not quite the same.

Alastair:

Speaking of things that have been introduced and we would hate to see lost when we return to normal life, how have you found the implementation of the readiness hearings and the special mentions which are currently being used?

Maureen:

Well, special mentions were introduced when we all became aware that the pandemic was real, it has hit us now, what are we going to do with our cases, so they introduced the special mentions to deal with the cases which had been set down for contest, so the urgent ones were being adjourned off for four weeks, the not-so-urgent ones were being adjourned off for six weeks. That’s been good because they are being run like directions hearings, so the magistrate is able to look at it and form their own view, and then whichever Counsel is appearing in the readiness hearing is able then to provide by way of submissions how they feel that the case ought to progress and talk about what has been happening in the case.  So I actually think that they have been quite good.

If there is an issue around contact, or if there is a burning issue normally with a mention, pre-COVID, it would be a discussion had between Counsel and with the lawyers in the case, but now there is a lot more input from the magistrate which can help to focus on the issues at hand to sort out what should be done moving forward.  So that is the special mentions.  As far as the readiness hearings go, they are a sort of combination of the judicial resolutions conferences and directions hearings; I have found these quite helpful as well.

Alastair:

I have always found the judicial  resolutions conference to be a woefully under-utilised hearing that you never really actually get to experience, and it can be so useful for, if not resolving a matter, at least for narrowing all the way down,  what is going to be disputed in a contested hearing.

Maureen:

Yes, when I did them it was almost like having the conciliation conference but for a magistrate. The benefit of that would be: if you had formed a view of it yourself as Counsel in the case and you were attempting to perhaps get your client to come along with you to understand where you felt they were at, and they weren’t getting it, when you had input from the Bench, from the magistrate, it did make a difference.  They could hear: well if someone hearing this case has formed this view and they are saying to me: before I am going to be able to get my children back in my care, I need to do x, y and z, I better do x, y and z; it really does clarify the issues and concentrates the mind, so they have that greater understanding and acceptance that this is what we need to do to progress the case. The readiness hearings I see as a little bit of a combination, they are not quite the same – some of the judicial resolution conferences can go for 2 or 3 hours, and the readiness hearings tend not to be quite so long, but it is a shorter version of that and if it does appear that there is not going to be any resolution, then it turns into the other side of this, a directions hearing side of it, where we look at who are the witnesses and who might be called in potential contest, and then have it adjourned off.

Alastair:

The additional paperwork that has come in line with that, where it is not just a negotiation on the day about who is going to be a witness and what particular weight they are going to bring to any evidence, the requirement for all parties to provide that in advance of the hearing, not only to the other parties but also to the Court, I have found is a great way to streamline the actual hearing on the day.

Maureen:

I agree, there is no question about where all the parties stand at that point in time.  So I think both of those, two new hearings, both the special mentions and the readiness hearings have been good, and it would not surprise me if they continue, moving forward to when we finish this pandemic or whatever COVID-normal is.  I think they will continue.  I think they have been a favourable addition to the whole Children’s Court process, and certainly at this time they have been quite necessary and helpful as well.

Alastair:

I agree and I would love to see that efficiency preserved.

Charlotte:

Moving away from the process and to what we see at the Children’s Court, Maureen, do you think there have been any issues that have arisen in relation to children’s matters that the Court has not dealt with before or are slightly different due to COVID?

Maureen:

I think there are concerns around family violence – there is a heightened awareness that during this period, there are additional risks.  There are certainly concerns around that, which I think are coming more from Child Protection, there is an awareness of that and they allocations of whether you are considered to be in the high-risk category; has there been a history there? So Child Protection has to be aware of that.

Coming before the Courts, I think the issue now that has certainly arisen is the provision of things like counselling and men’s behavioural change, family violence counselling, psychology counselling; all of those and those assessments;  how they have been impacted, there has certainly been an impact there because most of those services have gone onto the digital platforms. If you are doing counselling, then this is no longer face-to-face in most instances, so the question then arises:  how effective is that, if it is to do with the parents. I think that is quite different to maybe that with the children – how are they impacted with the digital counselling – is that effective?  I think for some it has been, but it has certainly been different and differently impacted. Have you yourselves found differences in the practice with that?

Alastair:

We know that schools are mandatory reporters, and that there has been a noticeable decrease in the amount of information that has come from schools purely because we are now in that home-schooling process and there is not the availability for a child to reach out to another adult in person, so easily, to confide in them, if they need help or if there is an issue going on at home.  I have seen a noticeable decrease in such matters coming through.

Maureen:

Yes, the schools have mainly not been open of course, only some of them are, I think for emergency service workers. Over Stage 4, child care may have been closed as well?

Alastair:

I think it is the same – I think some essential workers have been able to access child care, maybe not in the frequency of daily availability but there has been that added capacity for them to be able to utilise that.  I would share your views that there has been that increase in the family violence aspect of the cases that have come through because people are quarantined at home, so there is less of the availability for them to simply take themselves out of that environment, rightly or wrongly, whether they perceive that they are able to do that. Obviously all family violence services are still available – women’s refuges, shelters, counselling, Safe Steps, they are all still there, but I have come across clients who have just assumed that they are not, because of the lockdown so they haven’t pursued that.

Maureen:

Yes, I guess that needs to be put out more – the community needs to be aware of the fact that they have continued, but a lot have not continued not face-to-face, it’s on the digital platform.  I don’t know whether this has been your experience but I think sometimes for some parents it has been more difficult to demonstrate progress under the Orders; that they are actually progressing from supervised to unsupervised to monitored, during that time.

Alastair:

I think what you gain in the availability of the virtual platform, you lose in the human aspect of it, and when you engage in counselling processes, whether it be family violence, drug or alcohol or just general mental health counselling, in fact it is that human element that is just so important.

Maureen:

I think that is right, and some of the assessments….I think the Children’s Court clinic is still conducting assessments but on the digital platform, so I think there are things that are missed, particularly one huge thing, a parent’s interaction with a child who is placed in out-of-home care, so they do not have the opportunity of going to a clinic, face-to-face, where the child can run to the parent and demonstrate that the bonding and attachment seems to be really good. So they don’t get that opportunity, so there are things that are missed because of that process which is unfortunate.

Charlotte:

As we were discussing before, whilst there are some elements of this new digital space which are fantastic and make it more accessible, you then look to parents who were having supervised contact at a service or through a third party who are now having contact via Facetime or via Zoom and it is not the same.  It can be extremely difficult for both parent and child, especially for younger children – trying to maintain some kind of connection with a young child via a screen definitely is not ideal.  As you were saying, Maureen, that can also mean that when they are being assessed it can be hard to demonstrate that connection and that improvement especially if you are trying to show that bond between parent and child; it is incredibly hard via a screen and it can be quite detrimental in that respect.

Alastair:

And the same goes for that parent-craft, which is often the big assessment for children two and under, where if there is supervised contact, you cannot underestimate the importance of a parent sitting there and just holding their child, bonding with them, settling them if they become upset, feeding them, changing them, demonstrating all of that learning, there is first of all no capacity to assess that now and also no opportunity for a parent to really develop that.

Maureen:

That’s right, hopefully that might change sooner rather than later. We are talking about things that might change from Sunday on.  Certainly in 4 weeks’ time, here in Victoria, hopefully there might be a progression in that area.  But in terms of a priority, it is certainly the current position that any infants under the age of three, they are given priority as far as contact is concerned, so for the new-borns, there is priority given to contact going ahead.  If it is a supervised contact, those workers in the field who can do those contacts, it would be the newborns, too, to make sure those contacts happen.  We are at a time where if you have someone within the family, maybe a maternal grandmother or grandfather, they are the ones that will go ahead and they will happen. So they are the pluses.  So the under-threes are given an absolute priority as far as contact is concerned, which is as it should be.  Within the system, of course, there are other things that need to be looked at, and there is a rider, all of this, the prioritisation will go ahead where it is safe to do so.  If it is deemed not to be safe to do so, where health checks need to be undergone and where a family-safe assessment has to be done…..

Alastair:

A commitment to the quarantine….

Maureen:

Yes, all of that, a lot of things which are protocols which the Department looks at and which form part of their assessment as to whether or not the contacts can go ahead, and if there are issues around that, then discussions and negotiations can then occur between the various representatives from the Department and those representing the parents and children involved.

Alastair:

At the start of COVID, I saw an unfortunate knee-jerk reaction which was that even if contact was being facilitated by a family member, it would then have to revert back to video-contact and there was obviously that disagreement between families to say that we are able, we are willing, we want to do it, we are all adhering to the quarantine, but sometimes there was that pushback to say, no, it had to be done digitally, which meant that matters had to return to court to argue that exact point.

Maureen:

Yes, and there is a case which we are probably all aware of which I think occurred around April where there was a grandparent who was prepared to supervise contact and I think the Department came to Court to say, well this is an older person, there is an increased COVID-19 risk, so we are not agreeing to it.  So the Counsel for the mother said, we have spoken to the grandfather in question and he is prepared to supervise the children, he’s confident that he is able to manage the location and the timing of the contact. But the magistrate in question said: no, I rule in favour of the parent, I think there is no issue if the grandparent has turned his mind to it, which he had, and felt that he was fit and able to do the supervision, which then went ahead. So that was a positive outcome.

I think there was another case which came before the Supreme Court around the same time, I don’t know if you are aware of that one. It involved an 18 month old child and the judge described any contact that could have taken place over a Webex or a video setting as “illusory” which was the term that the judge used in that instance.

Alastair:

Was this a shallow attempt at actually complying with a contact requirement?

Maureen:

Correct. So I think now the Department has moved to the position of saying that any child under the age of three, there is an acceptance that any Webex contact or Zoom or Skype contact is going to be just that: it is going to be illusory, which we can all understand. The ability to concentrate and recognise that this is a mother and dad and we are to be focussed on this screen is nonsense. So there is a recognition on everyone’s part that any child under the age of three will struggle with any digital platform for contact.  So I think every effort is still being made to have face-to-face contact.

Alastair:

One important thing which I think people didn’t quite consider at the start but have now adapted quite well to, is the requirement that a parent who might have been the victim of family violence to facilitate a digital contact session with the offending parent.  There was not a lot of thought put into this originally, a victim of family violence, to maybe not see the perpetrator but to hear the voice, to know that they are on the other end of the phone, they can see what is happening in the house.  I saw a quite stark impact on victims of family violence as a result of that.

Maureen:

Yes, and from a psychological perspective, it just should not be happening at all. As you say, it is probably one of those things that we are all getting used to – playing catch-up – and so after hopefully not too long, there was a realisation that we cannot go down this path given the impact that it has on the victim, so alternatives had to be sought, and sought quickly.

Charlotte:

During this time obviously mental health has been a bit of a buzz phrase, we have all been quite cognisant of the impacts of isolation and the broader ramifications of COVID on our mental health, and as we were discussing before, contact with a child via Zoom or Facetime has been incredibly difficult and one thing that was overlooked was the impact upon the mental health of the parent who is only able to see their child once or twice a week via a screen. It is an incredibly difficult thing to imagine having to do, and I think prior to the direction being made that young children in particular need to be seeing their parent, obviously the best interests of the child are what’s in the forefront and them seeing their parent is obviously the goal, and what is important but to consider what is on the flip side are the parents who are only seeing their children through screens – to have that as the norm – is one of those things in this time that is very difficult.

Maureen:

None of us have experienced this global pandemic so we don’t have any measures to look at regarding the psychological impact on children, but there are those now who are looking at it and who are saying that none of us are immune to the stress that comes with the pandemic and related quarantine, but for children who are at risk and that’s who we are talking about here, they are going to be far more greatly affected by it and depending on how they see our world, whether it is in pessimistic terms well then that will heighten their anxiety.  So we don’t really know the effects as yet as to where that might be seen moving forward but what we probably do know and what most psychologists will say is that there will be an effect and what that will be precisely we cannot say as yet, and it will depend from child to child, but for a child who is at risk and is not with their own family, this will be an issue.

Charlotte:

What will play into that is that the children who are at risk are also now being isolated from the support services, whether it be school or a local sporting club which is so important or even to the extent of their engaging services … we are aware of a matter in which young children are engaged with a support service and it is evident that doing it via a screen is just not the same and to try to get those children back to seeing that person or engaging with that service on a face-to-face basis is so important.  Not only does it play into the mandatory reporting but also the mental health aspect for young children who cannot even grasp why these things are being taken away or why they are not in their routine – it’s a really tricky one.

Maureen:

And also in relation to that, I think are our indigenous brothers and sisters – I think that they need particular care at this time because some are not placed in kinship placements so that can be a difficulty in terms of culture and what it might mean for them. I think there is some awareness of the importance of this, but it is heightened at the moment and I think it is something that needs particular care and attention as well.

Charlotte:

Absolutely and for a child who is placed at home with their parents, not being able to see their closest aunt or perhaps the eldest sibling who is not at home any more but who was a great support, those children are now just so isolated.

Alastair;

And the indigenous children who are missing out on the cultural celebrations with border closures, don’t have the opportunity of a return to country.  It is very disappointing to see the children who have been so vulnerable for their entire lives, missing out on that opportunity to really strengthen and maintain their cultural connections.

Maureen:

Yes, and one would hope that would resume soon, particularly with the border closures which may soon be opening up but we will see how that goes and where that might lead. And on the emotional side, that will probably present itself somewhere down the track but we can see that already there are really issues as a result of what has been happening. Hopefully, those who are carers of children and parents are mindful of kids who are at home and what they see on TV. There is a lot of stuff on TV that just keeps getting churned around and around about the numbers of cases on a daily basis and if you are looking at that all the time, that would no doubt have its own impact so there should be limitations to that.

Alastair:

If it is having an effect on adults about the number of deaths on a daily basis, then you know it is having an effect on the children as well.

Maureen:

We are all probably all a bit tuned into the number of cases per day and what it all looks like and so if you have little ones at home, it would be good to try to quarantine them from such news and even thinking about it.  I guess there are ways and means of dealing with it. Younger children might find it a good thing because suddenly mum and dad are at home on a daily basis and for some that is a plus!

Alastair:

A bit of shameless cross-promotion:  there is actually a Nicholes Family Lawyers podcast which deals with how to speak to your children about COVID and how they are coping, so I would recommend listening to this, if only because it features myself!

This may be a hard question to answer, Maureen, but where do you think we go to from here?

Maureen:

In terms of whether we continue with our special mentions and readiness hearings and whether they will be maintained?  Is that what you are asking?

Alastair:

Well, across the board, really, what do you think we can take from the COVID experience and what we can apply to the Children’s Court practice moving forwards?

Maureen:

I think some of the practices which have now been introduced will probably continue in some form, moving forward.  I think the time will come when we are safely able to go back to Court probably wearing masks – I would guess that we might be wearing masks in public places for some time and a Court environment would be such a place.  So moving forward into 2021, I think some of the practices like the readiness hearings and the special mentions I think will continue.  Whether they will continue using a digital platform or using that in Court, maybe practitioners only, using that ability to be able to consult with clients either visually or on your phone or auditory contact, I can see that continuing. What do you think?

Alastair:

I think that despite all the doom and gloom of the COVID situation, there have been positive developments.  The efficiency of running cases, the understanding that people cannot always come into Court, which are always important, but often parents have been given such an extensive to-do list, whether it be drug and alcohol counselling, family violence counselling, attending every contact, doing drug and alcohol screens three times a week; there is such a burdensome to-do list that to take a day off from all of that to unfortunately in reality sitting around a court room for several hours when there is very little happening when they could be spending that quality time with their children or they could be engaging with professionals, to have such a streamlined way where you are told: you have a court hearing at 11.15 which is estimated to last for 15 minutes, all the work can be done between lawyers in the background if they need to, in advance of that mention, but then the mention itself takes place at the time, at the place where it is required and a parent can just dial in virtually; I would love to see this remain.

Maureen:

Yes, agreed. One thing that has not been mentioned are the contests which are being run – sometimes a contest can be listed for 10 days, or 5 days or being adjourned off until next year, although they might be given a listing and a court date for next year; there might be a special mention before that, to see how the matter is progressing, but any cases that are to be run beyond three days are not being listed in 2020. Some parents are finding this hugely disappointing because they wanted their case to be heard – they might have felt that they have reached a point where they are going to get their children back in their care, not being able to run a contest to demonstrate that by way of evidence, is not a satisfactory outcome.  What that has done – to have a limitation on the number of days – we have had to be very focussed on the number of witnesses that are required…

Alastair:

Also the witnesses that are necessary, and whose evidence can simply be a report that is not going to be challenged by any of the parties.

Maureen:

Exactly, do we really need to cross-examine this person?  If no, then we will just admit the report into evidence and then we don’t need to call them.  In so many ways, this is a plus as well, though it does not guarantee that the case is going to be on sooner rather than later, and I think they are starting to list cases for next year, because of the number of cases that are there. The other thing with the contests that are being listed, they are very specific days so if you know that your case is listed for a particular day, you know that that contest will be on that day.  Previously, you might have gone to court and there might be five cases listed before one magistrate, so obviously only one of those will get to be heard.  It is all worked out beforehand which case will be given priority and can we list this case before a particular magistrate on a particular day.  This has streamlined the number of contests and when they are going to get heard.

But there is a limitation: any more than three days, if it going to run for four days because of the number of witnesses that parties feel are necessary to be called, then it won’t get heard in 2020 and this is not a desirable outcome for any client.

Alastair:

A question without notice – what are your thoughts about the COVID-19 Omnibus Emergency Measures and Other Acts Amendments Bill which has recently been passed?

Maureen:

Are you referring to the Criminal Law matters or to the Family Division matters?

Alastair:

The Family Division matters and in particular the extension of that 24-month timeframe?

Maureen:

Yes, this has to happen.

Alastair:

I think it is a piece of common-sense legislation to see the understanding that there have not been these services available and this might be negatively impacting families, it saves us from having to go into that uncertainty of a child being placed on a Care By Secretary Order with a Family Unification Case plan, as this takes it out of the sight of the Court sometimes and it can be very difficult to move around the sort of power that this Order gives to the Department.

Maureen:

Absolutely, and there are a significant number of parents whose contact has been impacted because of COVID, and that will affect their ability to be able to demonstrate to the Court that they will be ready within that two-year time frame.  It was one of the first things I thought of: surely this will have to change. Then we all became aware that there was a Bill before parliament which has now been ratified. I hope we will all be turning our minds to the fact that it does not necessarily follow (in my opinion) that if the lockdown is for six or seven months, that may not necessarily translate into the same amount of time between the parent and the child because the impact of not being able to have contact, or very good contact, reduced contact with the child during COVID, that then brings them back a few steps so they have to work a bit harder to get that attachment or that bonding working again.  It probably means that they need a little more time in fairness for parents ….

Alastair:

Perhaps no more than a six-month extension, I think.

Maureen:

We are at the six-month now, it was about the 23 March that the restrictions came in and some of these were really quite rigorous at the time, some have been relaxed but now we have been placed in Stage 4 restrictions, they have tightened them up again, so perhaps it could have been for a bit longer.  Is that a final six month extension on it? There is no other option?

Alastair:

No, the amendment specifically says that extending the Order will not have the effect of placing the child in out-of-home care for a cumulative period that is more than six months longer than would otherwise have been permitted.

Maureen:

Yes, correct, so it is a strict six-month period. It is not open-ended.  For me, I would have preferred to have more flexibility around that because on a case-by-case basis, some parents are inevitably going to be affected more so than others.  I would have liked to have seen a greater amount of time. Within that period of time, it falls to both the Department and to parents to demonstrate why they should be permitted that extra amount of time.  It can always be argued by way of submissions or by way of evidence with that extra period of time, what did you actually do within that time to give effect to the conditions on your Order? Did you do anything to progress your case to the best of your abilities, given the limitations that you were working under.  Hopefully, there will be many parents who are able to say what they did with those limitations and such parents may need some more time to demonstrate such progress.

Alastair:

Given the fact that we are about six months in at this stage, when we are not clear of any deadline as to when things will change, do you think it might have been premature to place that six month time-frame on the amendment?

Maureen:

As an absolute time, yes. All the other states and territories other than Victoria, they are all doing quite well.  It looks like we are also doing quite well, but you never know.  I don’t know whether the six months necessarily equates with a direct amount of time that ought to be extended.  It has the psychological impact of, perhaps, of more time being necessary if there has been some sort of break with the attachment or bonding, then you are going to need more time.  All of us can see the possibility of that occurring; if for example it is a mum who has had a baby which has been placed some distance away, that is clearly going to have an impact.

Charlotte:

On the back of that and the difficulties and the dissatisfaction that might be experienced by a lot of parents or people in the Children’s Court, do you think we will see an increase in the number of people appealing decisions made in this time?

Maureen:

It is hard to say, this is a hypothetical, but it is certainly possible.

Alastair:

Any amendment which introduces uncertainty into the legislation usually results in a further appeal down the track. This new amendment which says that if the court believes that re-unification has been negatively impacted, obviously this is introducing a subjective element into it, whereas the court might believe one aspect and the client may believe another and the solicitors may have a certain view as to whether or not something does justify an extension.

Maureen:

This may need some sort of assessment done as to the impact of that as well. There is only one thing that we haven’t touched on: the hearings in the Court at the moment. In some instances, the Court is introducing court books for the hearing.  We are all aware that these hearings are not done by way of affidavit, unlike the Family Court, so this does raise that as a possibility moving forward that if there are no exhibits that people want to have tendered into evidence that this can be provided into court books ahead of time so we all know what is going to be tendered to support whatever point is being made to the Court.  I see this as a positive – I don’t know whether this will continue but I hope it does.

Charlotte:

I agree, anything which streamlines the process is a tick in my book.

Alastair:

Thank you so much for joining us today, Maureen.  Where can people find you if they need your excellent legal mind?

Maureen:

Thank you, Alastair.  Well people can find me on my list which is Holmes List.  They should look up barristers’ clerks and they look up Maureen Green, they will find me there.

Alastair:

Thank you everyone for joining us in the latest Nicholes Family Lawyers podcasts series and if you have any questions about any of the matters that you have heard discussed today, do not hesitate to contact Nicholes Family Lawyers in Melbourne.

Disclaimer: Nicholes Family Lawyers intends the information provided in this podcast as general information only, please contact Nicholes Family lawyers if you require specific information and advise in relation to any family law matter.