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Official justifications for reasons behind family court crisis

By February 24, 2016No Comments

By Gianna Huesch

Amid much criticism over the past year of justice delayed for families going through proceedings in the family courts, the Government has now come out with a response to its critics on this issue that can only be described as meek.

Family law practitioners, from lawyers to chief justices, as well as ordinary Mums and Dads caught up in the crisis, have repeatedly raised the issue of the problem of extreme delays experienced as they attempt to resolve family law matters through the courts.

Long delays in custody battles are commonly being experienced, with cases dragging on as caseloads increase at the same time as numbers of available judges decrease, with the system now struggling under the weight of a backlog of cases. Worst of all, the delays are most punitive on the most vulnerable members of our society, victims of family violence and children caught up in bitter custody disputes.

It has been reported that court interim hearings are taking more than a year to resolve, judges are not setting future hearing dates until 2018, and some families are waiting up to three years for a trial date. The judge shortage is particularly acutely felt in areas like Parramatta, which has seen its number of Family Court and Federal Circuit Court judges halved—from 10 to five—over the past eight years. (Source:

And while those in power make excuses and admissions that a lack of resources is behind the crisis, nothing appears to be being done by the Government to fix this major societal problem.

In a recent Senate estimates hearing, the Attorney-General George Brandis addressed the issue, justifying the delays in replacing retiring judges as being due to lack of funds and lack of candidates making recruitment difficult—the latter caused by a situation where federal judges don’t get paid pensions on retirement. Mr Brandis said that this was causing some judges to move to state courts in order to access a pension when they are required to retire at age 70. According to the Sydney Morning Herald, “six Federal Circuit Court judges and five Family Court judges will reach retirement age in the next two years, including Chief Justice Diana Bryant”, so the situation shows no sign of improving.

But Mr Brandis defended the delay in judicial appointments, claiming the Federal Circuit Court is “running at 85% capacity”. He said he had just filled two vacancies in Melbourne and Sydney (pending Governor-General’s approval) but opined:

“georgeGoeI wish I had more judges. I wish the aggregate number of judges was greater but there are resource implications. I wish I could offer judges a pension like intermediary state and territory judges receive, so as to regularise the arrangements of this court.”

Bizarrely, Federal Circuit Court judges are not required to be paid a pension, compared to state judicial officers. In fact it is reported that “they are the only federal judicial officers excluded from receiving a pension after they retire under the Judges’ Pension Act”.

Explaining the situation further, the Sydney Morning Herald writes,

Retiring judges who have been on the bench for a decade can access a pension from the age of 60, which is worth about 60 per cent of their current salary. A retiring Federal Court judge would receive a pension of about $252,486 a year but a Federal Circuit Court would get no pension.

In response to Mr Brandis’ claim about pensions being a reason for the difficulty he finds in recruiting and retaining judges, the Greens have questioned why the Government does not act to pass laws introducing pensions as well as raising the limit on the total number of judges. In response, Mr Brandis replied there was simply “not a lot of money” in his portfolio.  He said the Government was attempting to make savings in the area, for example by cutting funding in the legal aid budget, but this is surely an ill-conceived measure, given disadvantaged Australians are those requiring the most help.

With the problems in the family courts admittedly stemming from a lack of resources being devoted to address the clear problems in the system, it is inexplicable why the Government cannot immediately act to fix the situation and provide relief to families suffering from the extreme delays. Instead, Mr Brandis has promised that the Government will respond to the Productivity Commission’s 2014 report on access to justice before the end of its term this year. Is this good enough?



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