Yahoo Movies Law Council of Australia calls for independent body to hear complaints against judges in family law matters
People suffering from “litigation fatigue” after years spent in the family courts would be more likely to make complaints against judges if an independent judicial commission were established, the Law Council of Australia says.
Jacoba Brasch QC, the president of the council and an experienced family law barrister, said the prolonged nature of many matters in the family court and federal circuit court could discourage parties from making complaints, especially when the complaints had to be made to the court itself rather than an independent body.
Guardian Australia revealed on Sunday that federal circuit court judge Gregory Egan made five decisions that were later successfully appealed in his first six months on the bench, before he stopped hearing family law cases. He had little experience in family law before he was appointed.
Judges who heard the appeals found that some elements of Egan’s conduct of the cases had dismayed and concerned them, including making orders that had no basis in law, and ignoring the submissions of parties.
Egan is the third federal circuit court judge who has recently come under scrutiny for decisions in family law cases, after judge Salvatore Vasta jailed a man for contempt and judge Anne Demack took seven years to hand down a decision that was later appealed against.
A woman who spoke out against a decision by Egan to take her children out of her care while she was giving birth and unrepresented in court said she never complained about the matter to the courts.
She said this was partially because Egan later agreed to recuse himself from her case, but also because she was still involved in related proceedings more than three years later.
Brasch said she could understand that people involved in prolonged family law disputes might not want to involve themselves in yet another court matter.
“I can ... understand what I call litigation fatigue. You know, ‘I’ve been in the system for four years, I’ve had enough, I just want to get on with my life’.
“It’s about people having confidence in the system, and people feeling confident that the complaint is properly heard.
“I’m not being critical of the chief justice, because that’s the system we’ve currently got. But it’s an extra level of confidence [when] it’s gone to an independent body.”
There were 112 complaints about federal circuit court judges last year. Most cases heard in the court relate to family law matters.
Will Alstergren, the chief judge of the federal circuit court and chief justice of the family court, is responsible for dealing with judicial complaints.
The attorney general, Michaelia Cash, is yet to back an independent judicial commission – which was supported by her predecessor, Christian Porter – and the federal government did not set aside money in this year’s budget for the measure.
Cash’s office did not respond to a request for comment.
The shadow attorney general, Mark Dreyfus, said a federal commission should be considered.
“The current processes for dealing with complaints about federal judges is very cumbersome and we should be seriously looking at establishing a judicial commission, as already exists in a number of states, including Victoria and NSW,” he said.
The family law courts are set to undergo a significant transformation in coming months, with a new two-tier model to be established from September, as many as 14 new judges to be recruited, and about a dozen set to retire from the family court before March.
A spokesperson for Alstergren did not respond to specific questions about whether he could ensure the federal government appointed judges with family law experience, and whether the caseload of the federal circuit court, where some judges are responsible for more than 500 cases, had contributed to errors.
But Alstergren was bullish during a law week event in Melbourne last month, saying that under the new model there would be a 10% increase in the number of judges dedicated to family law, and an “enormous” increase in the number of registrars.
“No one should expect that anything else but good things will happen in the court – we’ve got more resources, and specialisation is not an issue,” he said.
Brasch, who would not comment on individual judges, urged the federal government to strictly adhere to the act governing judicial appointments and consult as broadly as possible to ensure experienced family law practitioners were hearing those matters.
The act states that any judge appointed to either division of the new court must have the “knowledge, skills, experience and aptitude” to be a suitable person to deal with family law matters, including those involving family violence.
