Saturday, 30 May 2009

Complaints against the Family Court

On Monday Richard Foster, CEO of the Family Court and acting CEO of the Federal Magistrates Court underwent the regular ritual of the Senate estimates committee hearing. This was interesting reading as to the number of complaints made, how they are dealt with, and what they are about:


Senator BARNETT—We are on the Family Court. Mr Foster, it is nice to see you here. Thank you for your presence. It is very much appreciated. Let us start on the complaints handling mechanism that you have underway within your court. Perhaps you could update us on the number of complaints, how you have dealt with the complaints since we last met and the procedures you undertake to process those complaints.

Mr Foster—Certainly. I will provide some history about the judicial complaints system, because there is some activity at a policy level about the Attorney-General’s view of a judicial commission. The Attorney-General wrote to the Chief Justice on 13 June and 20 October 2008 with regard to improved handling of complaints against the judiciary. The Chief Justice responded to these inquiries in writing on 19 June 2008, 23 June 2008, 26 June 2008 and 28 October 2008. The Chief Justice and senior officers of the court have discussed judicial complaints handling with the department over the term of this government, including on 7
July 2008, 20 August 2008, 17 November 2008 and 19 November 2008. There has been significant discussion between the courts and the department in relation to judicial complaints.
In relation to what exists as we speak, the Family Court acknowledges that complaints about judicial officers from the public may warrant particular serious examination and in certain circumstances the Chief Justice may need to advise both the Attorney-General and the Governor-General in council that the procedures related to the termination of a commission under section 72 of the Constitution should be activated. The Family Court has implemented a judicial complaints handling policy that is readily available to the public on the Family Court website or upon request to individuals. We take seriously complaints made about judges.
Policy does acknowledge the importance of the public providing feedback about judicial conduct so that the Chief Justice and the judge concerned may deal with the complaints appropriately. All that information is provided on the Family Court’s website. The Deputy Chief Justice, on behalf of the Chief Justice, has primary responsibly for the management of complaints against judges and is assisted in the consideration and investigation of the complaints by a judicial
complaints adviser, who is a legally qualified registrar of the court. The first step in the process is for an assessment to the made of the complaint to ensure that it is about the conduct of the judge rather than the result of a decision of that judge or a matter of proceedings which might be raised as a ground of appeal. Once the nature of the complaint has been identified, an appropriate initial response acknowledging the complaint is provided as soon as practicable. If the complaint pertains to conduct of a judge, a detailed consideration of the proceedings may be undertaken. This may involve an examination of the transcript or a review of the available
audio of the proceedings. A detailed and comprehensive reply is then prepared by the judicial complaints adviser and is reviewed and settled by the Deputy Chief Justice. In certain circumstances—
Senator BARNETT—How many judicial complaints advisers do you have?
Mr Foster—There is one—in the chambers of the Deputy Chief Justice here in Canberra.
Senator BARNETT—Do they have some sort of independence or are they simply part of the executive administration of the court?
Mr Foster—It is a registrar employed by me as the chief executive officer. But it is a legally qualified person who has had great experience in the court processes and systems and who knows how to review a file, read the transcripts et cetera. In certain circumstances, the judge concerned will be sent a copy of the complaint by the Deputy Chief Justice and invited to respond should the judge wish to do so.
Senator BARNETT—You say ‘in certain circumstances’. Is that in most circumstances? In what
circumstances would the complaint not be referred to the judge?
Mr Foster—If the matter was still proceeding before that particular judge then obviously that judge would not be consulted or advised about the complaint until the proceedings had been finally determined and dealt with.
Senator BARNETT—Is that automatic?
Mr Foster—Pretty much automatic, yes. If it is a behavioural thing from a party to an action and the matter is proceeding, those proceedings would wait until the judge had made the decision in relation to that matter.
Senator BARNETT—What if the judge was accused of being asleep through the hearing and consistently falling asleep every afternoon during the hearing?
Mr Foster—Fortunately that has not happened, so I am not really sure of that particular instance. I am really not in a position to respond.
Senator BARNETT—Would that not be an allegation that you would want brought to the attention of the judge as a matter of urgency?
Mr Foster—It might be. I am not being black and white in my response, but largely if there is a matter still before the judge for determination then it would be held back. There may be circumstances where it would be appropriate and/or necessary for the matter to be discussed with the judge notwithstanding that it was still before him or her in the court. But I would not like to speculate on those circumstances.
Senator BARNETT—But in any event, that is for the officer to liaise directly with the judge or not.

Mr Foster—That would be for the Deputy Chief Justice. The officer would advise the Deputy Chief Justice
and he would make a decision, probably in consultation with the Chief Justice, about whether that further
consultation process should take place. But to my knowledge that has not occurred.
Senator BARNETT—Why is it the Deputy Chief Justice and not the Chief Justice?
Mr Foster—I guess it is because the court has had such large numbers and it is a role clearly for the Deputy Chief Justice, who deals primarily with case management other than his court workload. Many of these complaints relate to case management, so it seems to fit within his responsibilities. The Chief Justice has delegated that responsibility to him.
Senator BARNETT—Going back, is it in most circumstances that it is referred to the judge? You said in ‘certain circumstances’.
Mr Foster—It would depend again on the nature of the complaint. If it was something of a particularly minor nature, it would not be. If it was a matter that it was considered the judge needed to be made aware of or might need to comment about, in those circumstances it would be referred to the particular judge.
Senator BARNETT—Using the last 12 months as an example, how many have been referred?
Mr Foster—I would have to take that on notice. Off the top of my head, I do not know.
Senator BARNETT—How many complaints have you had in the last 12 months?
Mr Foster—In the 2007-08 financial year, there were 75 complaints in relation to judges, out of a total of 206 non-judicial and 75 judicial complaints. To the end of December, there were 92 non-judicial complaints.
Senator BARNETT—From 1 July?
Mr Foster—To the end of December. Not about judges—they are non-judicial, about processes et cetera.
Senator BARNETT—What about judicial complaints—complaints about judges to the end of December?
Mr Foster—I do not have that figure. I will take that on notice. There were 75 for 2007-08.
Senator BARNETT—We are obviously interested in 2008-09, and through to 31 December if possible.
Mr Foster—Yes.
Senator BARNETT—But you do not have those figures for judicial complaints about judges? Do you have
to take that on notice?
Mr Foster—If I could take that on notice—
Senator BARNETT—All right. Let us drill down those 75 complaints for 2007-08 in terms of the
outcomes. Was that in your report last year?
Mr Foster—In the annual report?
Senator BARNETT—Yes.
Mr Foster—We have quite detailed—
Senator BARNETT—I think you have detailed that, but we do not have an update. You stated that the officer concerned in certain circumstances refers it to the Deputy Chief Justice, who refers it to the judge. Then what happens?
Mr Foster—Depending on whatever the complaint is about, the response may also provide an explanation about matters such as the manner in which judicial appointments are made. There is a whole range of things that people complain about. Obviously that is something you are interested in with that other committee. There are some other general things about judges—the oath of office, relevant training, professional experience, powers of courts to make decisions or an application made to the court, and the ability of individuals to request judges to disqualify themselves. There can be quite a range of different areas raised in these types of
complaints. It is not always about the behaviour of a judge. When I say it is in relation to judges, it could be in relation to their appointment, their oath of office or a whole range of activities in relation to what judges do and their work. Complaints relating to delays in proceedings or in the delivery judgements, as well as being made directly to the Family Court, may also be made to the relevant state or territory law society. In fact, in my experience that does happen. On 13 May, in response to the Senate inquiry into the Australian judiciary and the role of
judge, the Chief Justice and the Chief Federal Magistrate sent a joint submission to the committee which again addresses some of these matters.

Senator BARNETT—That is very much appreciated. If you can relay that appreciation to the Chief
Justice, that would be excellent. I look forward to perusing that and considering it very carefully.
Mr Foster—Thank you.
Senator BARNETT—Is there anything else in terms of the complaint handling mechanism that you wish to advise the committee?
Mr Foster—I do not think so at this stage, no.
Senator BARNETT—In terms of complaints made about judges, how many resulted in counselling and/or discipline?
Mr Foster—Can I also take that on notice? I do not know the exact number, other than to say it is very small. I am not really certain of the exact number.
Senator BARNETT—I am interested in the number and the nature of counselling and/or discipline that flows from that report.
Mr Foster—Certainly.

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