The Editor, The Courier-Mail
I write as President of the Family Law Practitioners Association of Queensland (FLPA), a body of nearly 1,000 family lawyers, barristers, social scientists and associated professionals.
I refer to:
- Article ‘Is ten weeks leave fair? You be the judge’ published on 28 December 2020; and
- Natasha Bita’s article ‘Divorce courts clogged with year-long backlog’ published on 28 December 2020.
Those articles overlook the following important points, in FLPA’s view.
Firstly, the income and entitlements (including recreational leave) of Justices of the Family Court of Australia and Judges of the Federal Circuit Court of Australia are fixed by the Commonwealth Government via delegated powers. That remuneration is fixed at a level which the Government considers attractive to encourage members of the private legal profession (e.g. barristers, solicitors) to transition into public service, and fulfil a role serving society by determining the cases of Australian families and couples enduring separation and divorce (and to remain in that role). That is with a view to having talented lawyers seated on the bench of the Family and Federal Circuit Courts, hearing the cases of the litigants before them. To attract such specialist talent from private practice, and have those Judicial Officers managing and determining decisions on such important matters as complicated parenting disputes, can only be to the benefit of Australians bringing their cases before those Courts. If all that is on offer is (comparatively) reduced entitlements, who will be signing up to determine the (cumulatively) 106,617 new cases filed in 2019/2020?
Secondly, the statistics dissected in each article illustrate the sheer volume of existing cases, and the flow of newly filed cases, in the Family Courts. This mass of legal problems cannot be dealt by existing Judges. That this mass of cases exists is not the fault of the Judges, either, and is instead a factor of retiring judges not being replaced, and more families accessing the Courts. Many organisations, over many years, have submitted that the answer lies in more judges, not stripping the entitlements of those who are, in the meantime, left to hold back the tide. It has long been the submission of organisations like FLPA that Senator Hanson, and her brother and sister representatives, must advocate for resourcing for the appointment of more Judicial Officers.
Thirdly, Judges in the Courts the subject of your articles determine cases which are uniquely complex. They involve abuse, neglect, family violence. They embody complex issues involving intricate structures, financiers’ security interests, insolvency, and equity. They are finely balanced. And they play out against a backdrop of relationship breakdown that is charged with emotion. Their determination can be confronting. Any error in determining these cases can be the made the subject of review by an appellate court (often the subject of separate criticism in your publication). To operate, and continue to operate, in this environment, the maintenance of optimum mental health is crucial. Judges, like any humans, can only bring the best of themselves to their role when they engage in self-preservation, by the taking of their annual leave entitlements. When the stream of these complex cases is relentless, not taking leave ought to be the subject of criticism, and discouraged (as it could only have the consequence of contributing to the ‘burnout’ which Senator Hanson refers in her remarks).
Fourthly, and importantly, Judges are employees like any other. No employer can threaten an employee that, if they take their leave entitlements, despite their employer having unprocessed work, they will lose their legal employment entitlements. If it is Senator Hanson’s proposition that Judges should have leave reduced or refused while ever cases lie pending in the Court, that cannot be right, as it overlooks the following reality – the business of justice will never be ‘done’. That there will always be more cases to determine is made obvious by the 106,617 filings in 2019/2020 alone.