Reform

Judicial Appointments

Posted

Hi Folks,

Is it just me or is there a federal election looming?

It’s just that I can’t help noticing some pretty significant announcements by the Commonwealth Attorney-General in recent weeks. Announcements of things that will doubtless provide some very meaningful improvements in the woeful state of the family law courts and people’s experience in them. I would go so far as to suggest that these improvements will surpass the so-called “benefits” purported to be achieved by the Federal Circuit and Family Court merger Bills debacle.

Let’s look at what’s come out in the last 5 or so weeks:

  • 8 February 2019 – two appointments of Judges Williams and Henderson to the Family Court (both elevated from the Federal Circuit Court). Judge Williams to Melbourne and Judge Henderson to Sydney.
  • 22 February 2019 – another appointment to the Family Court, Judge Tyson to now hold a dual commission with her existing role as judge in the Family Court of WA. Question: should this be counted as a new appointment (implying extra judicial resources) or a numbers game which only serves to spread the Honourable Judge a little thinner by attaching extra responsibilities to the same person?
  • 11 March 2019 – four more judges were appointed to the Federal Circuit Court, these being Judges Humphreys OAM for Parramatta, Monica Neville and Anthony Morely for Sydney, and Anna Boymal for Melbourne.
  • 11 March 2019 – in what must have been a busy day for the A-G, two new appointments were made to the Family Court; Judge Wilson for Melbourne and Judge Harper for Sydney. Both judges were elevated from the bench of the Federal Circuit Court.
  • 14 March 2019 – one new appointment to the Family Court of Dr Timothy McEvoy QC for Melbourne, and one new appointment to the Federal Circuit Court, Alice Carter also for Melbourne.

Meanwhile, and off to one side, on 22 February 2019, the A-G also announced the appointment of a further four judges of the Federal Court; (soon to be judges) Darren Jackson SC for Perth, Michael O’Bryan QC and John Snaden for Melbourne, and Angus Stewart SC for Sydney.

So what’s the score?

The rest of the Registries received no new appointments to either Court.

So, Australia wide, the Family Court has received five new judges and a dual commission appointment in WA in less than six weeks.

Consider that for a moment – this as many appointments as took place in the previous nearly six years (since the appointment of Judge Foster on 8 August 2013).

That’s right. Six judges appointed to the Family Court in under six weeks vs the previous six judges who were appointed over a period of almost six years!!!

The Federal Circuit Court has, after much plussing and minusing, only had a net gain of one new judge. And we mustn’t forget the extra four Federal Court judges either.

What does this mean?

For anyone who’s been paying attention to the Morrison government’s farcical attempt to fix the family law system by merging the Courts, you’d be aware that across the board in submissions and the public hearings, there was an almost unanimous view that much of the problem of delays in Court proceedings was due to simple under-funding. Numerous times the issue of under resourced, overburdened Courts and the failure to replace Family Court judges in a timely manner was stated as a major contributor to the situation. Some even implied that the shortage of judges might have been a ploy to justify the merger by creating the delays and apparent inefficiencies in the Family Court to begin with… You decide.

Rather than openly accept the overwhelming evidence of this and pro-actively rectify this failing, the A-G pushed on regardless with the “reforms” in the form of the merger Bills. The Senate Committee Report was pushed out a full two months earlier than scheduled and the rhetoric emanating from his office appears unchanged from this agenda.

But strangely it seems that the message did strike home, resulting in a flurry of frantic activity as judge after judge was appointed. I say strangely as I would have thought that the A-G could have made much of these new appointments to demonstrate that he was doing everything he could to fix the problem of the family courts and help Australian families. But no, it’s been fairly quiet on the public relations side of things.

I don’t know what the Parliament might do with the FCFCA Bills when it sits again from 2 April 2019, initially to present the early Budget, but here’s a few pertinent observations from the Senate web site:

  • The Senate is sitting 2 and 3 April (budget), then 4 April and 8 to 12 April is Senate Estimates so they can’t pass legislation then.
  • The Senate “Committee reports, government responses and Auditor-General’s reports for debate” are next listed for consideration on Thursday 16 May 2019 and do not include the FCFCA Bills.
  • There has been no Government response to the Senate Committee Report released two months’ early on 14 February 2019.
  • No amendments have been released since then addressing even the one key recommendation from this majority report – that the Appeals Division of the Family Court not be reallocated to the Federal Court. This is confirmed by the “Bills with circulated amendments” listing on the Parliamentary web site – no FCFCA Bills there.
  • The Labor Senators’ Final Dissenting Report was tabled on 13 March 2019 and as anticipated, is scathing of the Bills and produces a single recommendation: the Bills should not be passed.
  • The current Senate Notice Paper (as at 18/03/19) shows the Bills still on the Government Business agenda along with 50 other items of business, but the order of the items for debate has not yet been published.

It is difficult to fathom how these Bills could possibly be passed by the Senate in the few days remaining on the sitting calendar, particularly when no amendments are yet proposed to address the Committee’s recommendations. And then there’s the looming election…

On a Brighter Note

That said, I welcome the raft of new judicial appointments, made for whatever reason, to help clear the backlog of family law matters bogged down before the Courts. Nice to see some improvements happen, quickly and without undue fanfare, that have the potential to make an appreciable difference to the plight of families currently in ‘the system’.