Family violence and practitioner obligations during COVID-19

By Jerome Doraisamy|16 April 2020
Courtney Mullen

There are evolving challenges facing practitioners who are seeing an increase in the number of new cases pertaining to family violence in the wake of the coronavirus pandemic.

Increases in violence in wake of COVID-19

Recently, Prime Minister Scott Morrison said that Google has seen “the highest magnitude of searches for domestic violence help that they have seen in the past five years with an increase of 75 per cent and [domestic, family and sexual] services are already reporting an increase in demand”.

Domestic Violence NSW spokesperson Renata Field added: “Services are quickly adapting to ensure that help is accessible and safe during the COVID-19 crisis, however we are extremely concerned that people will be unsafe and feel that it is even harder than ever to reach out for help.”

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Courtney Mullen, who is the head of family law in the ACT for Australian Family Lawyers, said there has been a “steady increase” since January of this year in her firm’s file openings for matters involving allegations of family violence, “to the point that almost half – around 46 per cent of the new cases we opened in March included some element of family violence”.

“There is definitely anecdotal evidence that the pressures of the lockdown on relationships and the financial strain from job losses and uncertainty are contributing factors. Social isolation practises requiring families to work and study from home in close quarters is a pressure cooker environment,” she argued.

There is discussion, she continued, amongst the family law profession about an increase in enquiries involving family violence.

“I speak to colleagues and they are reporting the same thing. We also saw evidence of this after the global financial crisis where there was a spike in divorces and relationship breakdowns. We know that arguments and pressure over financial problems are one of the main contributing factors in many divorces,” she said.

Subsequent challenges facing family lawyers

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Family law remains an exciting vocational path, both in spite and because of the challenges inherent in such practice, Coleman Greig principal and director Malcolm Gittoes-Caesar recently told Lawyers Weekly.

What practitioners in this space must be aware of, however, is that fresh challenges are emerging as a result of the pandemic, Ms Mullen warned, saying that said challenges go beyond merely adjusting to working from home.

“Since social distancing was introduced, it has become apparent that new clients approaching us have a strong preference for seeing their lawyer (at least for the first time) in-person, rather than by phone or video link,” she said.

“I think lawyers often underestimate the relationship of trust and confidence that is built with a lawyer-client relationship and I have observed this to almost require face-to-face meetings with some clients for that rapport to be built. This is particularly the case for vulnerable clients.”

Moreover, Ms Mullen continued, the impact on the courts of delaying lengthy or non-urgent hearings means that further delays are likely to be experienced well into the future.

“This means that there is a growing uptake of dispute resolution processes. This also comes with its own challenges,” she said.

“Conducting mediations via video link has presented similar challenges; some mediators and practitioners aren’t proficient using the technology, while clients continue to want to be present with their lawyers. There is something to be said for everyone being in a lawyer’s office or boardroom for a negotiation, it adds gravitas to the situation and in my experience can help people reach agreement more quickly.”

This all said, with technology being used across courts and judges differently, Ms Mullen mused, the messaging to family law practitioners has been “routine and informative”.

“This has assisted us to understand how the process changes; not only for us but for our clients. There have certainly been challenges however, it is a whole new world,” she noted.

“Some judges have asked for document exchanges only, while others are happy to speak over the phone or prefer to videoconference. At the moment you don’t have to have court documents sworn and witnessed at the time of filing them which is a big change.”

When asked if a lack of uniformity pertaining to parenting arrangements has made it more difficult for practitioners – and whether it was contributing to increases in alleged family violence – Ms Mullen said that despite Family Court Chief Justice Will Alstergren’s comments that compliance with parenting orders may become “very difficult, if not impossible”, she feels the federal government has “actually been very clear on this by saying everyone must comply with parenting orders”, and that coronavirus is no reason to breach those orders. 

“It is the different lockdown restrictions and processes that apply to each state and territory that [are] creating a degree of difference between the options and advice given to clients about what it’s in a child’s best interests,” she advised.

“I think work is being done to try to make these restrictions more uniform, for example the states and territories all permit compliance with parenting orders if interstate travel is required to comply with those parenting arrangements.”

How family lawyers can respond

As an industry, Ms Mullen submitted, “we need to be innovative”.

“The needs of our clients are evolving with the impact of COVID-19. Maybe a member of their family has lost their job and there is no income or there are allegations of family violence or concerns about children’s health and wellbeing if a parent is exposed to multiple people in an essential services job,” she said.

“We have to be able to meet this increase in demand head-on. At AFL, are doing that by offering a limited retainer option for clients who have a budget of between $500-$1,500 in a staged assistance package. This way people can still access quality legal advice from senior lawyers and we coach or guide them through their family law matter.”

Last week, Lawyers Weekly reported that, according to three practitioners working in this space, family lawyers must be on the front foot in ensuring clients are protected during the pandemic.

Family violence and practitioner obligations during COVID-19
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