Monday, 1 May 2017

Family Law Courts funding plight continues

Now that the budget sails have been set, we can be sure of one thing in this budget- there will be little relief for the beleaguered Family Law Courts. The Federal Government will not be stumping up cash for the courts, and nor will it be appointing judges.

A week or so ago, the member for Newcastle was complaining that their Federal Circuit judge (who had retired) had not been replaced, leading to inevitable chaos for those unfortunate enough to need the courts to help sort out their and their children's lives.

Today comes the news that the Chief Justice of the Family Court of Australia, Diana Bryant AO, has once again pleaded for money. This is a plea that her Honour and Chief Judge John Pascoe  AC, CVO have stated repeatedly- in what appears to have been a case of falling on deaf ears.

I have been a family lawyer for over 30 years. I have never seen the court lists as bad as they are now. Cases can take several years from beginniing to a trial at end. This is a systemic crisis requiring a systemic solution and money to fix. Here are some possible solutions:

  • in the Federal Circuit Court, offer ongoing pensions to Federal Circuit judges after they retire- as any other judge gets. The Commonwealth has never paid these pensions, thinking that it would be cheaper to appoint judges without the hidden cost of pensions. Judges, having been appointed under the Constitution, cannot be removed except by a vote of both Houses of Parliament. In Queensland, for example, that has happened only once- and that occurred in the midst of the Fitzgerald Inquiry. Currently judges have no incentive to retire if they are unfit. They then have to rely on their (often inadequate) savings. So what do they do? Remain on the bench, keep taking a salary, but don't sit. The result? A big increase in the backlog, as other judges have to then fill the gap, meaning that their lists also fall behind.
  • Continue with mediation. Mediation has continued to settle matters that once were thought of as being impossible to settle. However the most intractable disputes need judges to decide- and to do so quickly. Justice delayed, as it is said, is justice denied. The model commenced in Queensland has seen 80% of cases settle which are referred from the courts to private mediators.
  • Continue with collaborative lawyering. Collaborative cases usually avoid going to court. In most cases that's a good thing.
  • For those who have the means- require them to engage in private arbitration. It seems scandalous to say that because the State can't afford to pay, then private citizens should pay. However, in some large property cases, the parties have more than enough means and should be able to have these decided quicker through arbitration.
  • Appoint more Federal Circuit Court judges. It is estimated that there are 10 judges needing to be appointed, but not yet appointed.
  • More money for legal aid. As the productivity commission found- more money for legal aid means a substantial drop in self-represented litigants before the courts. Thirty years ago seeing someone represent themselves in court was rare. These days a majority of cases in the Family Law Courts involve one or both parties acting for themselves. As the old proverb goes: "A man who acts for himself in court has a fool for a client." Cases involving self-represented parties often run longer, get stuck on side issues, and are less capable of being resolved, because the litigant is not a lawyer experienced in the field. For a case which is probably the classic example of how court time can be wasted (by both the lawyers and by at least one party who was self-represented)- see this case.