Wednesday, 27 January 2010

Family Court judges can now be forced to take a break, counselling

Recent changes give the heads of the Family Court and Federal Magistrates Court the power to force other judges to deliver judgments on time, take a break, and if necessary go to counselling.

The changes, to the Family Law Act and the Federal Magistrates Act, have strengthened the hands of the Chief Justice and Chief Federal Magistrate respectively.

Under the changes:
  • the Chief Justice and Chief Federal Magistrate can do the following:
    • determine which judges are to sit on the Full Court, or the court in particular types of matters;
    • assign caseloads, classes of cases or particular functions to judges [ and no doubt the reverse- if the Chief Judge were of the view that a particular judge is not performing, remove caseloads or classes of cases];
    • temporarily restrict a judge to non-sitting duties [ for example if a judge is unable to perform due to personal issues, or needs more time to write judgments];
    • ensure that judges have annual checkups, short-term counselling, and judicial education.
  • the Family Law Act has also been amended so that the Chief Justice can now enter into contracts on behalf of the court up to $250,000 without first obtaining approval of the Attorney-General. This should speed up the paper trial of bureaucracy in many adminstrative steps.
The powers should hand to the chiefs potent weapons in particular to ensure that judgments are completed in a timely manner. Until these changes, the method of complaining about judges who did not deliver judgments within the usual 3 months was to have the President of the Law Society or Bar Association to write to the Chief Justice or Chief Federal Magistrate. It was hoped that the complaint, by shining a light on the delays of the slow judge, would cause that judge to speed up judgment. Unfortunately, that did not always happen. Sometimes, no doubt due to the extreme workload, judgment has been delivered up to a year after the trial.

In exercising their powers to move judges and their workloads around, the two chiefs in these new administrative powers, now have the usual immunity that they have as judges. This no doubt was included so as to avoid a repeat of the jailing (then release) of the then Queensland Chief Magistrate Di Fingleton. Ms Fingleton was prosecuted  out of a dispute which arose from her seeking to take action against a fellow magistrate. The High Court ultimately held that she was entitled to immunity and should not have been charged.


Anonymous said...

Yes my family court case trial, a third ex parte trial was for two days and it is over five months and no judgement delivered. You will need to observe s121, if this is legal to publish.

Anonymous said...

Is this just for qld or the whole of aus? If not, why not??

Stephen Page said...

Yes, it applies to all judges of the Family Court of Australia and all Federal Magistrates. The only Family Court judges who are not covered are those in WA. Although they hold a dual commission as judges of the WA Family Court and the Family Court of Australia, they are primarily appointed as WA Family Court judges. As I understand it, the changes do not affect them, but I am happy to be corrected.

Anonymous said...

Well so why do you think my case is taking so long, for a two day trial and what are my options?

Marti said...

Our case has been running for 9 years with about 100 different applications and one particular case took 12 months for a cost order to be handed down. This was for an appeal and it can not be that hard it is yes you can have the cost order or no you cant. Then we were all awarded cost certificates because the previous trial was so poor it would not be fair that a proper cost order would be handed down. As they say Justice Delayed is Justice Denied. Evil Triumph - when good men do nothing!!

Anonymous said...

My partners 2 children aged 4 and 6 have been around junkies and have had 'inspections' constantly on their private parts amongst other stuff for the duration of over 5 years.... Still he gets told that the case is coming to an end and it does seem that way based upon evidence but then when court is on either papers have been lost or the judge is away and court is canceled or a lawyers sick etc. it's soooo dodgey - even a psych report has stated a few weeks ago that the 2 kids were better living with the father than the mother.... Still the register who back in April said within 3 months this case had to be finalized or else- it still has been pushed back yet again for
Another 3 months possibly 6 - how can we get this case solved ???