Here, we speak with four court advocates — two solicitors and two barristers (two of whom are anonymous) — about their experiences and perceptions of the hurdles facing females in Australia’s courts, and what more can be done.

Access to support

Unlike BigLaw firms and government departments such as Legal Aid and DPP, many boutique and small criminal law firms do not, in Lawyer 1’s experience and from her observations, have any paid parental leave policies in place.

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“Life as a court advocate differs as such there is unpaid parental leave offered in private practice for sole practitioners and/or employees in criminal law firms. It is a dream or fantasy for any criminal law court advocate who runs their own matters to take one year off from work expecting the caseload to remain upon their return,” she mused.

Less court time for a criminal law advocate, Lawyer 1 continued, “paid maternity leave frameworks at criminal practices are almost non-existent, [which] means less workload, which often means less fees/income”.

Sole practitioners, she said, “do not rely on a team but rather themselves, so their work schedules can be more flexible, but when you are a part of a team of lawyers, there needs to be judgement-free conversations between the employer and employee or the business partners to keep the firm afloat”.

Armstrong Legal national practice director of criminal law Angela Cooney explained that she is lucky enough to work at a firm that does have such a leave scheme in place, but added this is “relatively rare” for criminal lawyers in smaller practices, or who work for themselves.

“Australia’s government-funded Parental Leave Scheme is woefully inadequate and antiquated, which also doesn’t assist,” she remarked.

“One of the real challenges, however, with returning to work as a criminal lawyer is that your employer’s flexibility only gets you so far — most criminal lawyers are in court far more than they are in the office — and workplace flexibility and court advocacy are uncomfortable bedfellows.

“It is not impossible — but it takes an extreme degree of planning, help from colleagues, and a lot of the time — pure good luck to make it work.

“I returned to work full-time in January this year when my baby was just shy of four months old. This was in part a choice (the law was perhaps my first love) and in part an economic necessity.”

When Lawyer 3 had her children, in 2005 and 2006, life at the bar “was far less forgiving of the court lawyer and working mother”.

“I did not have any access to paid parental leave. As such, if I were to take leave to attend to my then-babies, I had to do without. This is not so easy to do when you are the main income earner in the family, which I was at that time. It was not assisted by the fact that despite my husband being in a government job at that time did not have any proper access to paternal leave,” she outlined.

“So, after the birth of my second child, I went back to work after getting out of hospital (like the first time), and we had to rely on nannies and long daycare to get by when my husband was at work. It was a very difficult time, which could have been ameliorated by my husband having proper paternity leave, which men in government positions have today.

“We didn’t have support, and we literally just had to do the best we could in a difficult situation, ultimately for the financial health of our family. [But] I missed my babies growing up and missed a lot of milestones, as they were my early days at the bar, and there was little room to do much else but work and do everything I could to build my practice for the financial security of our family.”

Perception and/or existence of stigma

Lawyer 3 also recalled being “really concerned” that her practice would disappear when people found out that she was pregnant with her first child.

“I felt that there was a need for me to make sure people knew that I was not taking any time off, so I did not lose work. So, every time one of my solicitors would ask me how long I would be taking off after the birth of each of my children, I was very quick to respond that I would be working right up until I gave birth, and would only be taking the week off that I was in hospital and then coming straight back.

“I think, back then, there was a greater expectation in society that a woman would just take time off for at least six months. So, I felt that I had to prove to everyone that this would not affect business in any way; the ultimate consequence being that I literally went back to work as soon as I got out of hospital after each of my babies were born,” she explained.

“I even worked whilst I was in hospital to prove that I was serious about coming back, as I could not afford for people to just assume I was not going to be working, as I had no financial support (in terms of leave) and was only in my second and third years at the bar.

“So, it was tough. I felt that I had to work harder to prove that my solicitors could depend on me to be there for our matters and that business would continue as usual; my family’s financial survival depended on it.”

Carolina Soto, a barrister practising out of Soto Chambers in Sydney, sensed similar trepidation, noting that her clients expressed hesitation in her continued work on their matters as her pregnancies entered their third trimesters.

“I anticipate they were concerned with the prospect of me going into labour and/or having complications, which might adversely impact on my continued appearance/s in their matter,” she said.

When Ms Cooney worked in regional NSW, she was instructing a barrister who, she recalled, “took one look at the engagement ring on my finger and told me I should, ‘hide that rock’ when I went to job interviews, because people might be reticent to hire a woman of my age (I understood him to mean, specifically because I might get married and have a baby)”.

“This wasn’t the first, nor will I imagine it will be the last time I hear some kind of comment like this. Most women I speak to have at least one story to tell that is similar,” she noted.

Some positive signs

On the other side of the coin, Ms Cooney pointed out, there are some “fabulous” professionals out there who understand, such as a counsel who “let me unceremoniously boot him from his chambers so I had somewhere to express from when we got stuck at ASIC for longer than expected”.

“There is good, and there is bad,” she mused.

Lawyer 4 had a similar story, recounting that she had felt “an incredible amount of support from the bench, colleagues and other members of the profession”.

“I do recall appearing in my final District Court sentence before going on maternity leave with my second son (approximately 37 weeks pregnant) and having a very concerned judge when I needed a break when I had an onset of contractions. I had nothing but support from the court staff with both of my pregnancies,” she said.

Greater support needed

In Ms Soto’s experience, one of the biggest issues that can and do arise when returning from maternity leave for female lawyers is having suitable and clean breastfeeding facilities in courts.

“There are no designated parent rooms in many of the major criminal courts, aside from available conference rooms and/or toilets (which for obvious reasons are not fit for breastfeeding and/or expressing in between court,” she said.

“This needs to change.”

Moreover, she added, there needs to be further training or reminders to judicial members about accommodating members of the profession when having to work beyond the typical court sitting hours.

For Ms Cooney, there are no magical solutions or answers as to how to make the court system more user-friendly — nor does she think that the obligation to do this rests solely with the courts.

“We have a fairly tight-knit community of criminal lawyers in Sydney, and I have certainly found the quiet conversations I have had with others, waiting for our turn at the bar table, helpful. I think the starting point (as with most things) is opening the lines of discussion about these challenges,” she reflected.

Lawyer 1 noted that it is sometimes not the courts that present a problem, but rather the expectations of other criminal law advocates to appear in matters within months of giving birth, coupled with a fear of losing the client and not remaining relevant in private practice.

“It would only benefit all returning solicitors, post-pregnancy, to have cases offered to them when they get back into the workforce (courtroom),” she said.

Advice to employers

One of the “single most determining” factors for Lawyer 2 in being able to return to work as early as she did was that her husband (a non-lawyer) had a supportive employer who allowed and encouraged him to take parental leave.

Employers in law, she said, need to support all staff to take care of infants, not just women.

“Women now make up close to 50 per cent of Local Court magistrates. I know many, fabulous, well-respected lawyers who are also women and mothers,” she said.

“Employers must consider (particularly in a post-COVID world) offering real flexibility and support to their employees. Those who don’t will fail to attract and retain talent.”

Moreover, Lawyer 1 pointed out, it is prudent for criminal lawyers who are aspiring mothers-to-be to feel respected in a safe space with other female court advocates to stay actively involved and engaged with other criminal law solicitors during their pregnancy, “so as to be in loop with the changing laws and authorities/precedents as well as to remind themselves and others that they are still around and aren’t going away from the bar table for good”.

It is “intimidating facing older men when talking about maternity leave”, she mused, when there is no HR department in private criminal law firms.

“I would recommend that, at some stage, when the time feels right, that those planning their pregnancies, have the difficult discussions with their employers, colleagues and business partners to sort their timelines with the caseload of the firm to manage and strategise how the firm would structure and perform themselves moving forward,” she said.

Lawyer 3 also had the benefit of having a husband whose work routine allowed him to work from home where needed. Whilst she appreciates, she mused, that generating profit is one of the primary focuses of any legal services business, “providing as much support as possible to your employees is always greatly appreciated and can go a long way to the happiness and productivity of your employees when they are at work”.

“My advice to employers is if you can be flexible with your employees who are parents and allow them to work hours that still enable them to do the work but also to attend to their commitments at home, then that is always helpful,” she suggested.

Further thoughts

Being a parent, in any profession, is always difficult, Lawyer 3 reflected. But, for court solicitors and barristers, it is particularly so, because the timetable is so unforgiving.

“When you’re in court all day, you have to do all your preparation at night or very early in the morning on almost a daily basis, and it is incredibly challenging and can be exhausting when your focus, when back at home, is taking care of your children and family,” she said.

“There is little time in the day to do it all, and though it is not impossible, it is very hard. One thing I do know, though, is that my children are incredibly independent and resilient out of it, and have learned that if you want to be successful in life, you have to work hard for it, and sometimes you have to make sacrifices for the good of the family as a whole unit.

“I would like to think that I have set an example for them that anything is possible if you put your mind to it, including being a working parent.”

For those advocates wanting to start or look after a family, Lawyer 1 said, “something so exciting should not feel so daunting”, simply due to the stress of leaving behind one’s caseload, one’s clients and their titles in court.

“Revise employment contracts to negotiate paid parental leave if approved or even for part-time work arrangements or working-from-home options if available, prior to family planning and be open with your boss/seniors if you are deciding on becoming pregnant so that neither party feels left in the dark or surprised when it does happen,” she suggested.

Ultimately, the demands of motherhood/parenthood within the confines of a court environment and within court operating hours can be overcome, in the face of idiosyncratic difficulties, concluded Ms Soto.

However, she said, it does require the coordination of court staff, the judicial member and all parties involved in the case.