The term ‘virtual hearing’ is used throughout this guide to refer to court hearings conducted via electronic means, either videoconferencing or teleconferencing.
A virtual hearing is a proper and formal court hearing. The only difference is that it is conducted via electronic means rather than in-person with all parties in a courtroom. The usual Rules of Court, court procedures, courtesies and formalities are still applicable and are expected to be complied with.
This Guide is for proceedings conducted in the Family Court of Australia and the Federal Circuit Court of Australia.
1. Technological options the Courts are using to conduct hearings
The Family Court and Federal Circuit Court are conducting court hearings using two main platforms:
Microsoft Teams (videoconferencing and/or teleconferencing)
Microsoft Teams allows participants to join the hearing using video or audio from a desktop, laptop, tablet or smartphone, or to dial-in to a hearing from a telephone.
AAPT allows participants to join the hearing by telephone only.
The decision as to how a hearing is conducted is a matter for each judicial officer. In considering the suitability of videoconferencing or teleconferencing, the Court may consider issues such as the nature of the case, the technological facilities available to parties, their lawyers and any witnesses to be called, their ability to effectively participate in the hearing, and how best to uphold the interests of justice.
Practitioners and unrepresented litigants will receive correspondence from the Court in relation to the technology that will be used to facilitate their hearing, and whether it is by videoconference or teleconference.
Practitioners and litigants are expected to be proactive and inform the Court promptly if they foresee any difficulty with participating in a virtual hearing, and to propose jointly agreed solutions where possible.
If there is a dispute about whether a trial should proceed via videoconferencing, the presiding Judge will determine that dispute. Practitioners should not assume that resistance to a video trial will automatically be successful.
1.1 Microsoft Teams
1.1.1 Establishing the hearing
Virtual hearings via Microsoft Teams are set up using email addresses.
Upon request from the Court, solicitors and unrepresented parties are to provide their direct email addresses to the Court so that a hearing invitation can be sent.
To assist the Court, please ensure that a current Notice of Address for Service, including an email address, is on the court file. The form can be downloaded from the FCoA website or the FCC website, and uploaded to the Commonwealth Courts Portal. This email address will be used by the Court in the first instance to communicate regarding the hearing. However, a direct email address will then be needed to forward the hearing invitation.
For represented parties, it is the responsibility of each solicitor to forward the meeting details and Microsoft Teams join meeting link to their client and any counsel appearing.
1.1.2 Joining the hearing
Participants can join a Microsoft Teams hearing from a desktop, laptop, tablet or smartphone via the purple ‘Join Microsoft Teams Meeting’ link included in the hearing invitation.
To use Microsoft Teams via a tablet or smartphone, users need to download the Microsoft Teams app from the relevant App Store.
On a desktop computer or laptop, Microsoft Teams can be used in a web browser version, or by downloading the free desktop app. For a better user experience, download the desktop app. See below for details.
Alternatively, participants can join a Microsoft Teams hearing by telephone, by dialling the conference number (including 02 area code), conference ID and #, and following the prompts.
If joining a Microsoft Teams hearing from a desktop computer or laptop, it is recommended that participants download the Microsoft Teams desktop app prior to the hearing.
The desktop app can be downloaded for free from the Microsoft website.
The Microsoft Teams webpage and web version work better in the Google Chrome web browser. All links should be copied and pasted into Chrome, rather than Internet Explorer, Mozilla Firefox or Safari.
To download the desktop app and join the hearing through the app:
Click on the purple download button;
A download will begin. Once completed, click on the file to begin installation;
Once installation is complete, press Continue to check that Microsoft Teams will open. If it opens, no further action is required until the day of the hearing.
On the next screen (which will read “You’re not on Teams yet, but you can set it up for your organization”), participants do not need to sign up for a Teams account – it is sufficient to have the desktop app downloaded onto the computer;
On the day of the hearing, at least 15 minutes before the listing time, click on the ‘Join Microsoft Teams Meeting’ link. It will open in the web browser, but a dialogue box will pop up that says ‘Open Microsoft Teams?’ or ‘Launch Microsoft Teams now’. Click open or launch so that the meeting opens in the app.
The Microsoft Teams app should launch the meeting and show the following screen:
Fill in the ‘Enter name’ field with name and party description, such as ‘Mr Surname (AppSoli)’ or ‘Ms Surname (RespCounsel)’ if the participant is a legal practitioner, or ‘Ms Surname’ / ‘Mr Surname’ if the participant is a litigant.
Use the sliders next to the camera icon and microphone icon to turn camera or microphone on and off.
Clicking on the ‘Devices’ cog will open the Device Settings menu, which allows the user to select the correct microphone, speakers and webcam that they are using, and to make a test call.
When ready to join the hearing, click on ‘Join Now’.
All participants will wait separately in a virtual lobby. The below screen will be displayed. The Associate or Court Officer running the hearing can see when participants are waiting in the lobby, and will accept each participant into the hearing when ready to do so. Please wait patiently, do not exit the lobby if you are not immediately admitted. If you have joined the meeting early, or the Court is delayed, the lobby may time out. If this occurs, please re-join the meeting.
If a participant clicks on ‘Join Microsoft Teams Meeting’ from an email or calendar invite and does not have the desktop app installed, the below webpage will open. Select ‘Join on the web instead’, and then follow steps 8 to 12 above.
In respect of step 5 above, if users wish to sign up for a Microsoft Teams account, they may do so. There is a trial option and paid options. An account may be useful for legal practitioners as it allows for greater functionality in Microsoft Teams, such as access to the calendar function and the ability to pin selected participants’ video feeds to the screen during a hearing. However, it is a matter for each user and an account is not required to effectively use Microsoft Teams.
1.1.3 Options in the Microsoft Teams desktop app during a hearing
During a Microsoft Teams hearing, moving the mouse brings up a ribbon of meeting options across the screen. Participants can take the following actions:
Click on the camera icon to turn the video on and off;
Click on the microphone icon to turn the microphone on and off (mute and unmute);
Click on the share icon to share a document on the screen for all participants to see – this option may only be available if the Associate/Court Officer gives permission for participants to share;
Click on the ellipsis (…) for more options, including to check device settings, blur background, turn off incoming video;
Click on the show conversation icon to see the chat window on the right hand side of the screen;
Click on the show participants icon to see a list of all the participants in the hearing;
Click on the red phone icon to end the meeting when the hearing is finished.
In the desktop app, participants can right click on up to four participants’ videos to pin them to the screen so that they are always visible.
If using the web browser version, by default, Microsoft Teams will display the video of the person speaking. One participant’s video can be pinned by either:
clicking on ‘show participants’ to bring up the people menu, clicking on the ellipsis next to the participant you want to pin, and selecting ‘Pin’; or
right click on the circled initials of the participant you want to pin.
if you have Participant A pinned, to pin Participant B, you must first ‘unpin’ Participant A.
Please note, on different devices, these options may appear in a different location. For example on an iPad, the show conversation/chat function, and the show participants/people function are in the top right hand corner.
1.1.4 Options on the telephone during a Microsoft Teams hearing
If a participant joins the hearing by dialling the conference number and conference ID, it is a standard telephone call. Participants only have the options presented to them on their phone screen, such as to mute, place the phone on speaker and hang up the call.
Participants should not place the Court on hold, or put the phone on loudspeaker, as this will decrease audio quality. The Court has the ability to mute participants who have joined the hearing by telephone. If you are muted, a voiceover will inform you of this, and how to unmute. To unmute, press *6. A voiceover will inform you when you are unmuted.
If a participant is experiencing poor video quality during a hearing, or cannot maintain a connection through the desktop app or web version, they can join via the teleconferencing option. The details are included in every meeting invite.
If practitioners or litigants do not have a strong internet connection, or do not have access to the technology to appear by video, communicate with the Court prior to the hearing about participating by telephone.
1.1.5 Preparation and testing
Participants should download the Microsoft Teams desktop app well in advance of the hearing, and ensure they are familiar with the microphone, webcam and speakers on their device, and that any external hardware is installed and working properly.
Once you have received a link to a Microsoft Teams hearing from the Court, the link may be accessed at any time prior to the hearing to check that the correct microphone, webcam and speakers are being recognised by Microsoft Teams, make a test call and to see what your video will look like.
Depending on the case, the Court may schedule a test between the parties prior to the hearing. This is of benefit to all parties, and the Court expects that practitioners and litigants will make themselves available to participate to reduce the need for an adjournment or any delay on the day of the hearing.
Prior to any hearing, practitioners should agree with their clients on a method of confidential communication and how they will obtain any urgent instructions during the hearing. Otherwise, instructions must be obtained prior to the commencement of the hearing.
Please note that matters may not be given the opportunity to be stood down. It is expected that practitioners and parties will have engaged in serious negotiations prior to the commencement of the matter to attempt to resolve or limit the issues.
1.2 AAPT Teleconferencing
AAPT teleconferencing is a teleconferencing set up that allows multiple participants to dial-in from any telephone. If a hearing is being conducted using the AAPT teleconferencing facility, participants will be provided with the conference phone number and guest passcode.
Dial the conference phone number;
follow the prompts and enter the teleconference guest passcode: ***** # ;
hold music will play until the “chairperson” (i.e. the Court) joins the call.
2. Conduct of a virtual hearing
Similar to an in-person Court hearing, an Associate or Court Officer will run the Microsoft Teams hearing.
The Associate will:
admit participants into the hearing through the virtual lobby;
record participants’ names and appearances before the commencement of the hearing;
inform the participants when the judge will join the hearing, open and close the virtual courtroom, and call the name of the matter for hearing;
provide documents to the judge that have been virtually handed up by email, or share documents on the screen for all parties to see; and
administer oaths or affirmations when necessary.
In relation to proceedings by videolink or audiolink, see the following provisions: Division 2 of Part XI of the Family Law Act 1975 (Cth) – Use of video link, audio link or other appropriate means to give testimony, make appearances and give submissions etc.
Division 5 of Part 6 of the Federal Circuit Court of Australia Act 1999 (Cth) – Use of video links or audio links
2.1 Guidelines for Witnesses
For the purpose of this guidance, a witness includes a party.
The below information is provided as guidance. The conduct of the hearing remains a matter for the presiding judicial officer. Witnesses, parties and lawyers should follow any direction given by the judicial officer in relation to the conduct of the proceedings and manner in which the witness is to give evidence.
The behaviour, manner and presentation of a witness should be the same as if they were attending the Court hearing in person. This includes addressing the Judge correctly as “Your Honour” and addressing Counsel politely and courteously.
A witness is to be alone, in a secure room with doors closed.
The witness is to ensure that there will be no interruptions or distractions for the duration of the video appearance at the hearing.
If witnesses are unable to give uninterrupted evidence, they should advise their legal representatives as soon as practicable.
A witness may have a glass of water with them but a witness is not permitted to eat or to drink anything else during the course of the hearing, without permission to do so.
The witness may take notes and have pen and blank paper for doing so but the taking of note will not be permitted where it impedes the flow of the evidence.
A witness should have recently re-read all affidavits or statements made by him or her in these proceedings and have a clean copy of those documents with them. Copy affidavits should be placed face down on the surface in front of the witness and not turned over or read by the witness unless or until the witness is directed to do so.
If the witness only has electronic copies, the files should be placed on the desktop of the witness’ computer, and not opened or read by the witness unless or until directed to do so.
The witness will be sworn or affirmed by the Associate prior to commencement of their evidence.
It is expected that the witness has had explained to them the distinction between an oath and an affirmation and be able to say whether they wish to make an oath or an affirmation.
The party cross-examining the witness is to ensure that the witness has all documents to which they may be referred. This means that a cross-examiner must know in advance what documents will be shown to the witness and ensure that those documents are available to the witness in a timely manner.
Witnesses cannot communicate with anyone about their evidence whilst under cross-examination:
Witnesses are not permitted to use or access their phones whilst giving evidence. They may use them to communicate with their practitioner at all other times;
Witnesses may be asked to show the Court their location for giving evidence, to confirm that they are alone.
Where an objection is made and discussions are required in the absence of the witness, the witness may be asked to mute their computer or otherwise be virtually ejected from the meeting space and invited to re-join when the objection has been dealt with.
3. Documents to be relied upon during virtual hearings
In accordance with Joint Practice Direction 2 of 2020, all documents relied upon by parties must be e-filed or e-lodged, or if this is not possible, emailed to the registry.
Documents should only be emailed to Chambers if ordered or directed to do so. Practitioners and litigants should continue to adhere to the Protocol for Communicating with Judges’ Chambers, including the requirement to ensure that all parties are copied into any correspondence with the Court.
Any proposed minute of consent orders should be emailed to Chambers or the relevant case co-ordinator in Microsoft Word format by no later than 4pm one business day prior to the hearing, or as otherwise directed by the Judge or their Chambers staff.
At the start of the hearing, practitioners must ensure that they have ready access to electronic copies of all filed documents and material in order to be able to email them to Chambers at short notice during the hearing if required.
When required, the Associate or Court Officer in control of the Microsoft Teams hearing will be able to share a document on the screen for all participants can see. This is one way of facilitating the electronic ‘handing up’ of documents.
3.1 Court Books
Court books/electronic tender bundles are to be provided in the time and manner directed by each Judge.
Court books must be provided in PDF format and be indexed and paginated. A page limit may be imposed.
In the event medical, child protection or police records obtained under subpoena are required to show a witness, tender to the court or be included in a Court Book, practitioners are at liberty to contact Chambers to seek leave to copy same or seek other orders and directions to facilitate this process. Where the Judge deems it appropriate, orders may be made for those documents to be copied or scanned subject to strict conditions imposed on the practitioners seeking same.
PDF files can be combined, paginated and bookmarked using a number of different programs. Adobe Scan is a free and useful mobile app that can be used to ‘scan’ any hardcopy document using a smartphone and convert it into a PDF.
4. Recording and transcription
Virtual hearings are being recorded by the Courts’ recording and transcription services provider, Auscript, or through the Microsoft Teams recording function. Participation in a Virtual Hearing indicates a participant’s consent to being recorded.
Transcript will be available through Auscript in accordance with the usual ordering processes. Some delays may be experienced during this time of transition to virtual hearings.
All participants are prohibited from recording, by any means, any court hearing or other court event.
See rule 1.19 of the Family Law Rules 2004 for family law proceedings, and Division 6.2 of the Federal Court Rules 2011 for general federal law and migration proceedings.
Section 121 of the Family Law Act 1975 (Cth) prohibits the publication or dissemination of an account of any part of any proceedings that identifies a party, a witness, or any person associated with the proceedings.
5. Virtual hearing court procedure and etiquette
As stated above, a virtual hearing is a proper and formal court hearing. The only difference is that it is conducted via electronic means rather than in-person with all parties in a courtroom. The usual Rules of Court, court procedures, courtesies and formalities are still applicable and are expected to be complied with.
Counsel are expected to robe as per usual, unless otherwise indicated by the judge.
Solicitors, litigants and witnesses should dress professionally as if they were attending an in-person hearing in a courtroom.
Participants are not expected to stand when the Judge joins the hearing electronically, and should remain seated when addressing the Court.
Aside from water, participants should not eat or drink during the hearing.
Participants should ensure that their mobile phones are switched off or on silent. However, as participants will likely be in separate locations to maintain social distancing, discreet mobile phone or tablet usage is permitted for communicating or obtaining instructions, provided the devices are on silent, and that practitioners and parties mute their microphones in Microsoft Teams when they are communicating.
6. Technology tips
Use a headset, or headphones that have a microphone (such as most headphones that come with smartphones), to avoid echo and increase audio quality. Ensure you select the headphones in the settings for ‘Devices’ as the microphone and speaker. If you have the volume turned up and audio coming through the speakers of your device, it may be picked up by your microphone and echo. If other participants are complaining of echo and you cannot hear any echo, it is likely that you are the cause.
Ensure you are located in a quiet, distraction free location with good lighting and minimal background noise. Use an appropriate camera angle and background to your video.
If litigants are participating from their home, as far as is possible, ensure that they are out of earshot of any children present in the household to which the proceedings relate.
Participants should have their microphone muted and cameras switched off when they are not speaking or not required to be seen, as the Judge directs.
If appearing by telephone, do not place the Court on hold. Speak directly into the phone. Do not place the phone on loudspeaker, as it will decrease audio quality.
Ensure devices are fully charged before the hearing, and have the charger handy nearby. Videoconferencing can drain the battery of devices quickly.
7. Safety in virtual hearings
Litigants should be mindful of their personal safety when participating in virtual hearings, including by considering the following:
If joining the hearing using video, consider turning on background blur, or sitting in front of a neutral background such as a blank wall, blind or door;
If there are safety concerns about appearing with video turned on, the Judge may permit litigants to participate in the hearing using only audio;
If joining a Microsoft Teams hearing by telephone, switch caller ID off before dialling the conference number. Otherwise, if caller ID is switched on, litigants should be aware that their phone number will be displayed in the Microsoft Teams meeting to others participating using the desktop app, web browser version or smartphone app (but will not be visible to other participants also dialling in on the telephone). Switching caller ID off means that only a random 9 digit number will be shown.
If possible, set aside time to participate in the hearing distraction free and without children present.
Maintain social distancing at remote locations.
Visit https://www.cyber.gov.au/publications/web-conferencing-security for tips on video-conferencing security.
8. Open Justice
Hearings can be observed by any member of the public. This is subject to a Judge’s usual discretion to determine that in particular cases, only certain people should be present during the hearing, or that certain people are not to be present during the hearing.
In the Family Court, if a member of the public wishes to observe a hearing, or listen in to a hearing, they should contact the relevant Registry by email as early as possible and by no later than 8.30am local time on the morning of the hearing:
- Eastern Appeals Registry (Sydney): firstname.lastname@example.org
- Northern Appeals Registry (Brisbane): email@example.com
- Southern Appeals Registry (Adelaide and Melbourne): firstname.lastname@example.org
- Western Appeals Registry (Perth): email@example.com
Trial division/first instance work:
In the Federal Circuit Court, if a member of the public wishes to observe a hearing, or listen in to a hearing, they should contact the Chambers of the presiding Judge via email as early as possible and by no later than 8.30am local time on the morning of the hearing.
The daily court lists are published on each Court’s website at approximately 4pm the day before the hearings. Members of the public should submit their request to observe or listen in to proceedings as soon as possible after this time, and no later than 8:30am local time on the morning of the hearing. The Court will endeavour to respond to all requests in a timely way, noting that if members of the public email the Court shortly before a hearing is scheduled to start, the request may not be able to be accommodated.
Current as at 22 April 2020. Errors or queries in relation to this document should be forwarded to Jordan Di Carlo, Executive Legal and Policy Adviser to the Chief Justice via firstname.lastname@example.org