Family Court Chief Denies Crucial Evidence to Senate Inquiry

11 December 2018

In a move contrary to the manner in which courts might conduct their own inquiries, the Head of the Family Court has declined a request to have judges appear before a Senate Committee looking into the restructuring of the Family Courts.

“The inquiry is quickly turning into a sham. Not hearing from judges during an inquiry into court reform is akin to conducting an inquiry into hospital reform without hearing from doctors,” said Senator Rex Patrick.

“For an organisation that’s full time role is one of good judgement, it seems to have dropped the ball here. Does the Court really expect Senators on the committee to make a positive recommendation about the proposed court changes without hearing from coal-face judicial officers?” questioned Rex. “If the aim of the refusal is to make sure no adverse judicial commentary is expressed in order for the legislation to pass, then the refusal may actually backfire.”

Guidance issued by the Council of Chief Justices of Australia on making submissions or giving evidence to a Parliamentary inquiry relating to the law or the legal system states:

“It is appropriate for a judge to make a submission or give evidence at such an inquiry if care is taken to avoid confrontation or the discussion of matters of a political rather than a legal nature, but prior consultation with the head of the jurisdiction is desirable. Again, the expertise or experience of a judge can be of great assistance in the examination of issues relating to legal or procedural matters. As long as discretion is exercised, this should not detract from the independence of the judiciary from the legislative and executive branches of government”.

When questioned on the lack of judicial input into the inquiry, the Chief Judge of the WA Family Court, Justice Thackray, diplomatically answered, “In my personal capacity I would say that it is always very, very, helpful to have expertise in a specialist area. Its sometimes helpful to have somebody who has another expertise to assist in the discussion, which is why it is so good in appropriate cases to have three minds rather of one dealing with a particular appeal. But clearly, human experience would tell us that some specialist knowledge, not just acquired on the bench but acquired in many years before coming to the bench, is helpful in dealing with a specialist topic.”  

These sentiments were also echoed at the Adelaide hearing today by The Honourable Rodney Burr AM.

“Retired Justice of the Family Court Rodney Burr indicated to the committee that he has discussed the bill with a large number of sitting judges of the Family Court and there is almost unanimous opposition to it,” said Rex. “He further advised the committee that there are a number of judges of the Family Court that would like to appear but are being prevented from doing so. I find this very concerning.”

The Senate committee will continue its inquiry in Sydney tomorrow.

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