FCFCOA Special Measures Information Notice: COVID-19 Hearing protocol

(SMIN-COVID-HEARINGS)

1. Introduction

1.1 This protocol will apply to all hearings and other court events in the Federal Circuit and Family Court of Australia (Division 1) and (Division 2) (the Courts) from 23 May 2022 in the ACT, NSW, NT, QLD, SA, TAS, VIC and WA until further notice.

1.2 This protocol applies equally to the Courts' family law, migration law, and general federal law jurisdictions.

2. CovidSafe measures

Attendance at a court registry

2.1 Court users should only attend a Court registry where a hearing or court event is to proceed in-person. Court users may include a party, their legal representative, a witness, an expert or an interpreter.

2.2 Only the required number of participants necessary for each matter should attend the Court registry in-person.

Face masks

2.3 Unless otherwise directed, all court users are required to wear a face mask whilst in a Court registry, including in a courtroom, interview room or mediation room.

2.4 Judicial officers are not required to wear face masks when conducting court proceedings.

2.5 During a hearing, masks do not need to be worn by legal practitioners who will be addressing the judicial officer. Masks may be removed by parties and witnesses when they are addressing a judicial officer.

2.6 Any court user relying on an exemption from wearing a face mask must carry and provide written evidence of the basis for the exemption.

Social distancing

2.7 All court users are required to adhere to social distancing measures and keep at least 1.5 metres away from other court users.

2.8 Court users must adhere to the functional density limits for each courtroom, interview room, mediation room and common areas indicated by the relevant signage, or as otherwise directed by the Court.

Documents

2.9 It is the Court's preference that all documents and tender bundles to be tendered during an in-person hearing are provided electronically prior to the hearing, rather than in hard copy.

Courtroom hygiene

2.10 Court users should bring their own water bottles as the Court will not provide water jugs or cups.

2.11 High-touch areas in courtrooms, interview rooms and mediation rooms will be cleaned between matters whenever possible and at the end of each day.

COVID-19 positive, symptoms or awaiting test results

2.12 Court users should not attend a court registry if they have tested positive to COVID-19 in the last 7 days.

2.13 Where a party has a matter listed for an in-person hearing or other court event (such as an interview with a Court Child Expert) and paragraph 2.12 applies:

  1. If represented, the party should, through their legal representative, seek:
    1. to be excused from attendance in-person; or
    2. to attend electronically; or
    3. where not possible for the matter to proceed with the party in attendance electronically, an adjournment

    by email correspondence, copying in all parties, to the Chambers/support staff of the presiding judicial officer or to the Court Children’s Service as relevant;

  2. If unrepresented, the party should seek:
    1. to attend electronically; or
    2. where not possible for the matter to proceed with the party in attendance electronically, an adjournment

    by email correspondence, copying in all parties, to the Chambers/support staff of the presiding judicial officer or to the Court Children’s Service as relevant.

3. Final hearings (i.e. trials)

Final hearings heard by a local Judge

3.1 Where a matter is listed for final hearing before a local Judge, the final hearing will be conducted in-person unless directed otherwise by the presiding Judge.

3.2 It is a matter for each Judge to consider the individual circumstances of the case and decide how best to conduct a fair hearing.

3.3 Where a matter is listed for final hearing to proceed in-person, a party seeking to appear electronically by video or telephone must file a Request to attend by electronic communication in the approved form (see rule 15.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021).

Final hearings heard by non-local Judge

3.4 Where a matter is listed for final hearing before an interstate or non-local Judge, the final hearing will be conducted electronically unless otherwise approved by the Chief Justice/Chief Judge. Consideration may be given to Judges from single judge registries travelling to larger registries to sit.

4. Interim or interlocutory hearings

4.1 Where a matter is listed for interim hearing before a local Judge, the interim hearing will be conducted in-person unless directed otherwise by the presiding Judge.

4.2 Where a matter is listed for interim hearing before a local Senior Judicial Registrar in family law, or a local Judicial Registrar in general federal law, the interim hearing will be conducted in-person where the presiding judicial officer considers it appropriate to do so.

4.3 It is a matter for each judicial officer to consider the individual circumstances of the case and decide how best to conduct a fair hearing.

4.4 Where a matter is listed for interim hearing to proceed in-person, a party seeking to appear electronically by video or telephone must file a Request to attend by electronic communication in the approved form (see rule 15.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021).

5. Other short hearings e.g. first return hearings, directions and divorces

5.1 Ordinarily, short hearings and procedural hearings listed before a Judge will be heard electronically, unless otherwise directed by the Judge, with the exception of Compliance and Readiness Hearings in family law, which will ordinarily be listed to proceed in-person.

5.2 Short hearings and procedural hearings a Senior Judicial Registrar, Judicial Registrar or Deputy Registrar, will be heard electronically, including first return hearings, duty lists, mentions, directions, judgment delivery, and divorce hearings.

5.3 From 1 June 2022, bankruptcy lists will be conducted in-person.

6. Dispute resolution events

6.1 In family law, Conciliation Conferences and Dispute Resolution Conferences will be conducted electronically unless the registrar considers that the matter requires an in-person conference to be effectively mediated, and approval has been granted by the Principal Registrar.

6.2 In general federal law, mediations will be conducted electronically unless the registrar considers that the matter requires an in-person conference to be effectively mediated.

7. Court child expert events

7.1 Interviews of adults will be conducted electronically, unless it is assessed by the Court Child Expert that there are specific reasons why the interview needs to be conducted in-person.

7.2 Observations and interviews of a child/children may be conducted electronically, where the Court Child Expert assesses that it is appropriate and/or necessary to do so.  

7.3 Decisions to conduct an in-person assessment with an adult and/or child will be made on a case-by-case basis, giving consideration to the features of the case and the need to minimise risk to all relevant court staff and court users. Masks will be worn during in-person assessments at the discretion of the Court Child Expert.

The Honourable Justice William Alstergren
Chief Justice (Division 1) | Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Date: 29 October 2021
Updated: 17 January 2022, 10 February 2022, 25 February 2022, 3 March 2022, 6 May 2022, 20 May 2022

Date

Summary of changes

15 December 2021

Increase in in-person hearings in ACT, VIC and NSW

17 January 2022

Application to all States & Territories except WA

10 February 2022

Increase in in-person Court Child Expert Events

25 February 2022

Application to all States and Territories including WA

Increase in in-person hearings

3 March 2022

Increase in in-person Court Child Expert events

6 May 2022

Return to in-person final hearings by default when listed before local Judge, increase in-person interim hearing, confirmation of vaccination no longer required

20 May 2022

Return to in-person bankruptcy lists, and some interlocutory hearings and mediations in general federal law.