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Judges want family law court restructure to respect current judicial tenures
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Judges want family law court restructure to respect current judicial tenures

The Australian judiciary’s representative body is calling for appointments to a new family super court, which the government will establish by the end of the year, to respect existing arrangements.

The Judicial Conference of Australia (JCA), comprising judges and magistrates from all levels of the nation’s court system, issued a statement this week calling for the restructure of the Family Court and Federal Circuit Court not to impact the tenure of current judicial appointments.

President of the JCA, Justice Robert Beech-Jones, said that while the group did not propose to comment on the restructure at this stage, existing tenures of family court should be respected.

“The restructure and the appointments that follow should respect the tenure of existing judicial appointments,” Justice Beech-Jones said.

As part of the proposed merger, the fine detail of which is yet to be made known by Commonwealth Attorney-General Christian Porter, a new super court named the Federal Circuit and Family Court of Australia (FCFCA) will be established.

By forming one court, the A-G said that the system would become a more streamlined process, with one set of forms, rules and processes to be applied across the board. It remains unclear how the institutional and legal knowledge of current judges will be used within the current system.

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Given the scant detail about the restructure, Justice Beech Jones said that the JCA would not comment on the newly proposed family court configuration at this stage. He noted that group was, however, very concerned that current debate about the new court arrangement had inspired “unfounded criticism of the performance of individual judges and groups of judges” published in the media.

The judge said it was unfortunate that false reports had been published suggesting that that the government’s decision to introduce the restructure, before the Australian Law Reform Commission was due to deliver a report on its comprehensive review of the family law system, was a consequence of the “underperformance” by some individual judges or groups of judges.

“One article conveyed a baseless assertion that the outcome of appeals in the Family Court has been affected by the feelings of the appeal judges towards the trial judge,” Justice Beech-Jones said.

“There is no basis for any suggestion that any of the judges of the affected courts, including the judges assigned to the appeal division of the Family Court, have not been working to full capacity and faithfully applying the law” he said.

“The JCA hopes that the participants in the debate will acknowledge that when contributing to the debate.”

The judge recognised that generally, an assessment of the merits of the proposed restructure was a policy matter for government. Several members of the legal profession have gone on record to express concerns about how this new merger will help improve what is an overburdened family system but most representative bodies, like the JCA, have reserved comment until more information is made known.

Justice Beech-Jones took particular exception to comparative analyses that had been published, which he said had failed to properly acknowledge the different methods of disposing of cases adopted by different courts and the different levels of complexity of individual cases that can arise within and between courts.

As conversation progressed about the looming changes to Australia’s family law system, the judge asked commentators to bear in mind the nuanced approach that the bench took in deciding family law matters.

“In the absence of further detail, the JCA does not propose to comment on the proposed restructure. However, interested groups, the press and the community at large are obviously entitled to express their views on the proposal,” Justice Beech-Jones said.

Meanwhile, Perth barrister Rod Hooper SC is understood to have written to journalist Nicola Berkovic, who writes for News Corp. Mr Hooper took the reporter to task for an article published on May 23, which suggested Stephen Thackray had been sacked as head of the Family Court appeals division for efficiency reasons. The article suggested that Justice Thackray’s travel costs were running up expenses that the court could not afford.

Justinian published Mr Hooper’s letter in full, where he noted Ms Berkovic’s article relied on a leaked memo from Chief Judge Thackray to judges Alstergren and Pascoe concerning the handover of responsibility for management of the appeal division of the Family Court of Australia.  

“A cursory reading of that memo should have made it plain to you that during the (short) time that Chief Judge Thackray had been in charge of the appeal division, considerable advances had been made in the efficiency of the division including reductions in delays for hearings, delivery of judgments and in reduction in travel costs,” Mr Hooper wrote.

“To suggest that the removal of Chief Judge Thackray was in any way linked to a desire to run the division more efficiently or reduce costs is simply wrong.

“To suggest that Chief Judge Thackray is anything other than a judge who is committed to the efficient delivery of justice in family law matters borders on defamatory. If he does not sue you and your paper for this slight it will only be because he is not as thin-skinned as some of his former colleagues,” he said.

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