Monthly Archives: November 2014

Long Court Delays as Family Law Judges Retire but not Replaced

on by
Chief Judge John Pascoe

Chief Judge John Pascoe

Parents locked in child custody disputes and couples going through acrimonious divorces will wait up to three years to have their cases finalised as “drastic underfunding” of the Federal Circuit Court and a mass exodus of retiring judges exacerbate already long waits.

Fairfax Media has learnt that 12 judges are set to retire over the next 12 months – almost a quarter of the circuit court’s 65 judges. The circuit court works in tandem with the Family Court, dealing with more than 80,000 divorces and custody matters a year.

Lawyers who work daily in the circuit court’s family division have warned that waiting times for a final hearing will balloon from two years to three if emergency funding recommended by KPMG is not forthcoming from government and departing judges are not immediately replaced.

The Chief Judge of the Federal Circuit Court, John Pascoe, the Law Council and family lawyers all told Fairfax that courts are struggling to keep up with their case loads, with some busy courts operating with half the number of judges they once did.

At Parramatta, for example, there are now just two judges doing the workload of four. Judge Joanne Stewart was moved from Parramatta to Melbourne in April to fill another staffing hole created by the retirement of three Victorian judges.

She has not been replaced and the two remaining judges in Parramatta have had to split her cases between them. One judge has no hearing dates left for the entire calendar year 2015, according to lawyers.

In central Sydney, Judge Stuart Fowler retired a year ago and has not been replaced.

Attorney-General George Brandis is responsible for approving new appointments and funding the court.

In a statement, Chief Judge Pascoe linked the court’s staffing problems and spiralling workload to Senator Brandis, who commissioned KPMG to investigate the court’s financial woes but has so far not acted on its recommendation for an emergency funding injection of $5 million to boost service levels before a long-term solution is found. The Circuit Court’s budget will be in the red by $75 million by 2017-18, KPMG found.

“The Federal Circuit Court is facing a large number of judicial retirements in the next 12 months,” Chief Judge Pascoe said. “The Attorney-General is aware of the pending retirements and of the court’s heavy workload. I have indicated to the Attorney the pressure that is currently faced in particular registries such as Parramatta.

“In a high volume court, timely replacements of retiring judges is critical in ensuring that families in distress are dealt with as quickly as possible because delays in accessing the courts can adversely impact on families,
especially children.”

Mustafa – not his real name –  an administrator from western Sydney, has experienced the impact of drawn out proceedings after his wife took his young son and left in 2012.

His case will get another mention in February but a final hearing cannot be held until late 2015. In the meantime, due to allegations that were not substantiated by police, he has had to endure supervised visits with his son, now six, before being granted two days access a fortnight until his matter is completed.

“I am disappointed by the timeframe and the way we as fathers are considered guilty until proven [innocent],” he said.

A spokesman for Senator Brandis said the government was committed to ensuring the federal courts were adequately resourced but he would not rush appointments of judges.

“Whilst appointments are progressed as quickly as possible, the appointments of judges are important decisions that need careful consideration,” he said.

“In the current economic climate all areas of government, including the courts, must look for ways to work more efficiently and effectively. The Attorney‑General is carefully considering all available options for any administrative and structural reform to address long-term financial sustainability of the federal courts.

Perth lawyer Rick O’Brien, chair of the Family Law Section of the Law Council of Australia, said: “The family courts are genuinely in crisis, and with these retirements things are going to get worse.”

“It takes about two years for a case to get to trial in the Family Court. The Federal Circuit Court has always had the ethos of dealing with family matters quickly and efficiently but in NSW it is now slower than the Family Court – and that is simply due to lack of resources.”

In September, Law Council president Michael Colbran, QC, said the KPMG report, which has not been released by Senator Brandis, confirmed “what the legal profession has said for some years – that the Federal Courts are drastically underfunded, and that the public is suffering as a result.”

Family Court Makes Ruling on Intersex Child’s Treatment

on by

intersexA fifteen-year-old boy who has male external sexual organs but female internal sexual organs will be offered prosthetic testicles and undergo irreversible sex-changing treatment, but will still be able to have a baby, a Family Court judge has ruled.

Although children with gender identity conditions can begin reversible first stage treatment without the approval of the Family Court, second stage treatment, as requested in this case, required the authorisation of the Family Court, despite the consensus among the boy’s parents and medical team that to deny or delay such treatment could be “psychologically and socially very damaging” to the child.

The child, given the pseudonym Dylan, is genetically a girl but physically a boy due to a disorder that produces ­excessive male hormones in the womb.

Family Court judge Michael Kent ordered the teen be allowed to receive testosterone injections to begin male puberty.

Dylan’s endocrinologist has also recommended the child have prosthetic testicles inserted once puberty is complete.

Dylan faces a lifetime of hormone treatment.

Doctors say Dylan may still be able to give birth “should he choose that later in life”.

Dylan’s parents were forced to go to the Family Court to get approval for the sex-change drugs, which are referred to as the “second stage of treatment” following use of puberty blockers.

Family Court approval for second stage treatment is in line with a recent Full Court of the Family Court decision, like Re: Jamie [2013] FAMCAFC 110, whereby first stage ‘reversible’ treatment can be undertaken without Family Court authorisation, although strict standards need to be met, however any second-stage ‘irreversible’ treatment requires the oversight and authorisation of the Court.

Dylan’s sexual status is termed “intersexual”.

Dylan was not diagnosed until the age of 15 months, and his parents waited until the child was 11 to tell him he was “part female”.

At the age of 13, Dylan had a pelvic scan to confirm there were ovaries present.

“It was explained to Dylan that he could potentially be fertile as a female in the future if he wished,” Justice Kent said.

“Dylan and his family are aware that if Dylan continues to live as a male, he will eventually need to have his internal female organs removed.

“However, at the present stage, the medical plan … is to defer such surgery until Dylan reaches the age of 18.”

Dylan will need testos­terone treatment for life, either through injections every three months, or a “pellet” can be implanted under the skin or through patches, gels or tablets.

Dylan’s condition is known as congenital adrenal hyperplasia, which triggers a spurt of male hormones while the baby is in the womb.

Dylan’s endocrinologist, who cannot be named for legal reasons, said if Dylan was not given the testosterone female puberty would begin, which would be “psychologically devastating” for the child and may lead to obstructed periods.

Another option would be to give Dylan puberty blockers until the age of 18, which would also be “psychologically and socially very damaging”.

Related Family Law Judgments

Fixed-Price Divorce Fees as Law Firms Compete for Business

on by

calculatorBroadly speaking, one-third of all marriages in Australia end in divorce, so if you are going through a divorce right now, you are certainly not alone.

And when it comes to divorce, there are two truths that are common to all who experience it: one is that love hurts, and the other is that divorce costs.

The good news is that broken hearts mend, eventually anyway, but the cost of a divorce could set you back for years, maybe even decades, and for some you will never recover financially.

We are of course not only talking about the ‘financial settlement’ of a divorce, which in a civilised society is simply a necessary financial adjustment. We are more importantly talking about legal fees, which can in some cases cost upwards of $40,000, many even surpassing the $100,000 mark.

A lot of money isn’t it, just for the privilege of asking someone else to decide on your behalf who gets this percent and who gets that.

Although many lucky couples can avoid litigation, and in the process save themselves a lot of money, for others its just not a reality, unfortunately.

Amongst the stiff competition of family law however, some law firms are responding to the more discerning divorcing consumer, by offering alternatives to the straight up, clocked-by-the-minute costs agreement.

There are some legal firms today that are offering what is now commonly called a fixed-price divorce.

Typically, the price proposed will cover every stage of a family law matter, up to and including court proceedings.

Family Law Fixed Fees would take the guesswork out of determining the cost of parting company and could also help resolve bitter disputes, said Slater and Gordon national practice group leader, Ian Shann.

“It is important to know up front what fees are, to take into account how far you will push something in the Family Court or whether it is worth compromising,” Mr Shann said.

“They will be paying for the agreed value of the work we do and an outcome, not the time it takes.

“Times are emotionally and financially tough when there’s a break-up. You don’t want to be throwing your hard-earned assets in unnecessary legal fees.”

Family Court matters can cost from a low of $495 for a straight out divorce to tens of thousands of dollars where parties are in dispute and are determined to thrash out every detail.

One property dispute in South Australia last year cost a staggering $36 million, Mr Shann said.

“If you don’t know fees and are billed on hourly rate, you can’t take costs into account to make rational decisions about proceeding with Family Law matters.”