Judge says Federal Circuit Court is overburdened … Important cases concerning the welfare of children are delayed for years … Case loads of the judges are two to three times what they should be … Matters are over-listed by up to 400 percent … Emilie Lentz reports 

In O’Toole v Noakes, Harman was dealing with the parents of a five year old boy in a custody dispute. He told the parties at a hearing on February 23 that another matter, also in relation to a child’s best interests, had been scheduled to be heard on the same day and was to be given priority. The O’Toole case cannot be allocated fresh hearing dates – largely because “no dates exist”. 

Meanwhile, the condition of the child continues to be of concern. 

“All dates for 2015 have already been allocated to other matters at an over-listing ratio of 300-400 percent, meaning that the court always has before it three or four times more work than can possibly be dealt with on any given day … 

A diary for 2016 is not even yet contemplated, let alone prepared and this matter will join the queue, albeit a relatively small queue, of matters waiting allocation of dates.” 

The court’s workload cannot be dealt with “in a fashion that would permit the casual observer to form the view that the … child’s best interests [are] being treated as paramount”. 

The plaintiff sought to spend more time with his son, specifically six days a fortnight. The Family Report concluded that this proposal was, “somewhat unrealistic given the level of ongoing conflict between the parties”.

This matter had been on foot for 25 months, with very little court time devoted to it. Prior to the first hearing on December 10, 2013, O’Toole and Noakes had already agreed on a number of things following a child dispute conference and family therapy. The agreed issues were compiled into a report by the Family Reporter. 

Unfortunately, the report was not presented to the court at the December 10 hearing, unlike affidavits over 60 centimeters thick that the parties produced. The proceedings were adjourned.

The matter returned to court on August 6, 2014, and two days were set aside in the following February. Harman J regretted that further delay was inevitable, particularly because the child’s interests were becoming increasingly complicated and disadvantaged. 

He said that it would be 12-18 months before another hearing time could be found.

Transferring the case to the Family Court or another superior court would not mitigate costs or inconvenience. The late stage of the proceedings also made it unsuitable to being transferred. 

Harman referred to the recommendations of the Australian Law Reform Commission, that further judicial and other resources were required in family law matters to enhance the ability to protect children’s interests. In fact, HH said, resources were being reduced, adding: 

“The court simply cannot work any harder than it does at present, routinely sitting eight to 10 hours a day, usually without break. Nor should the court be expected to work beyond its present onerous work load. It does not serve the interests of justice or inspire confidence.” 

A clinical psychologist found that X showed signs of anxiety that were uncommon for a child of his age. He had developed a tendency to attach to things rather than people. There had been conflict between his parents from before he was born and throughout his entire lifetime.

Harman endorsed the words of Justice Quinn of the Ontario Supreme Court: 

“Some day, a wise person in a position of authority will realise that a court of law is not the best forum for deciding custody and access disputes, where principles of common sense masquerade as principles of law.” 

The nature of the parents conflict and mental state of their son suggests that a non-legal response to the matter may be more effective and efficient. 

The parties had been referred to family therapy and mediation. These non-legal measures produced a report containing points on which the parties had agreed, before the matter had even come before the court. 

Editor’s postscript: 

In 2011 Harman, as a federal magistrate, was restricted to non-sitting duties for a month and undertook “judicial education and counselling” as a result of findings on appeal that he had failed to observe procedural fairness in two cases.