Sadly, the traditional BBQ and chinwag for family judges that is usually held before the national conference did not go ahead this year in the usual manner. Drowsy procrastination in full swing … Lakeside litigation … Family court effusions … No sizzling sausages for family judges … Carmody the Coalition’s dream sentencer … Longer terms for stale judges … Goings On with Theodora
As of the end of September her retired honour had 12 judgments outstanding and one appeal judgment still in contemplation with Michael Wigney and John Burns.
Her oldest outstanding judgment was reserved in August 2014, there are another five from 2015, three from 2016, plus the appeal judgment which may be handed down today (Oct. 12) only two years and eight months after its one day hearing, and three reserved from 2017 – a lightening 20 months ago.
As Artemus Jones pointed out in April these delays are not a problem for ACT judges because section 60A of the Supreme Court Act conveniently permits those, who have ceased to hold office, to exercise the jurisdiction of the court to hear and determine cases. The cases are quaintly referred to as “transitional proceedings”.
While it is not a problem for slow-coach judges, it is highly inconvenient for the court’s customers.
In other developments from the Molonglo, regular litigant Emmanuel Tam Ezekiel-Hart has been given leave to re-plead his defamation claim against the Law Society of the ACT and its professional standards manager, Robert Reis.
Ezekiel-Hart alleges that Reis has been communicating to “uncountable people”, via word of mouth and email, that the plaintiff was a person who threatened others with “lethal violence”.
Ezekiel-Hart previously had issues with the Law Society over his practicing ticket.
Associate Justice Verity McWilliam found that while Ezekial-Hart’s pleading was “far from satisfactory and … needs to be remedied”, it was not so embarrassing as to be struck out entirely.
Ezekiel-Hart has been involved in litigation against the ACT Law Society in 2009, 2011, 2012, 2013, 2017 and 2018. Even so, McWilliam rejected the submission that he was a vexatious litigant.
Tensions continue to simmer as national celebrations were held for the retirement of the chief justice of the Family Court.
John Pascoe had put in service as a solicitor, CEO of the Tip Top bread and biscuit company and chairman of Aristocrat poker machines.
He was a favourite of Stan Howard at Stephen Jaques, and his brother Little Winston Howard who anointed him as chief of the federal magistrates. In 2004 he took over as chief judge of the Federal Circus Court and last year Soapy Brandis elevated him to CJ of the Family Court with the express brief to usher in the government’s restructuring and merging of the family courts, with the idea that judicial teams would play the game in 1st and 2nd divisions.
As a commercial lawyer Pascoe’s experience and expertise in family law was next to nothing. Still, this did not stop our Christian Porter, attorney general, lathering on the unguents at Pascoe’s retirement ceremony on October 8:
“… what few conceive is that the long hours and the varied strains that accompany a professional life spent deciding complicated and often fraught matters that so fundamentally effect peoples’ lives arises because judicial service is at its most fundamental level a sacred promise to resolve matters for people who come before the court, usually at the most difficult time of their lives, justly and fairly. That promise means that you have personally done your best, which has been very good, to resolve the problems of thousands of people.”
What cases did Pascoe CJ resolve for citizens before the court at the most difficult times in their lives? Researchers are scouring the records for details.
In view of this, it’s understandable that the AG would then beef-up the family law credentials of Willy Alstergren, the incoming CJ, particularly as the Law Council and the Australian Bar Association didn’t indulge in the traditional gushes.
Unbeknown to most of us, Willy has a tremendous legacy in family law.
“Since 2015, as Chief Judge of the FCC His Honour has managed in a remarkably energetic and diligent way the busiest family law court in Australia, he has personally conducted 593 family law hearings – 21 appeals and 324 separate matters.”
Damn statistics never lie.
Family law man from the west, Justice Stephen Thackray, has been a critic of the merged court policy, the appointment of under-qualified judicial officers, and the allocation of appeals to inexperienced Federal Court judges.
As a consequence, he received a spray from the Christian at the national family law whin-wag earlier this month.
He laid into Thackray over comments that the changed court structure would “diminish the status of family law” and that firms of accountants were attempting to determine the productivity of the courts.
Even so, it’s not as though Porter is dispatching lawyers steeped in family law to the Federal Court. His most recent appointment was a Yarrside bar commercial silk, Michael Wheelahan.
As the former Tip Top man was clearing the shelves of his chambers and boxing-up photos of himself with Kamal and other celebs, he decided to give Thackray a big tick of approval.
“On the issue of appeals, I note the critical importance of a thorough, in-depth and expert knowledge of family law. Without such knowledge, it would be much more difficult to ensure that a just and proper conclusion is reached. It is important that single judges dealing with appeals in family law have appropriate family law background and experience, and that larger panels include judges with relevant family law experience.”
Hallelujah.
He added, as Porter’s ears were burning, that if the government’s inadequate “reforms” don’t work, then a royal commission unto family law might be necessary.
Sadly, the traditional BBQ and chinwag for family judges that is usually held before the national conference did not go ahead this year in the usual manner.
The belief is that Two-Wigs Willy was concerned that if too many of his brood got together in one place in proximity to a blazing fire, someone would end up on the grill.
As a gesture of solidarity, Two Wigs has appointed Judge Salvatore Vasta, the brother of Liberal MP Ross Vasta and, of course, the son of Angelo, to a new fangled role at the court – “national case management judge”.
Justice Angelo Vasta, from the Sicilian cane-cutting clan, was impeached by the Queensland parliament in 1989 and removed from the Supreme Court following a finding by three judges arising from his involvement in his brother-in-law’s toilet paper business and “misconduct” in relation to tax arrangements.
The Mad Katters unsuccessfully tried to have the Queensland parliament pass the Honourable Angela Vasta (Reversal of Removal) Bill, 2017.
Rupert’s hacks in Queensland have been hard at it over a sentencing decision by the chief justice.
Catherine Holmes recently sentenced William O’Sullivan to nine years for the manslaughter of his stepson, Mason Jet Lee.
O’Sullivan pleaded guilty and by the time of his sentencing he had already been in gaol for over two years, had attempted suicide, was in a mental health ward and had ultimately come to accept responsibility for the death of the 22-month-old child.
Needless to say, this was largely a case of history repeating itself. The 37-year old offender had a “sad and difficult childhood” at the hands of a brutal and abusive stepfather.
He was placed in state care at 15-years of age, had little education, and for 21-years struggled with drug addiction.
As the CJ put it:
“It does not seem you had any proper model for parenting. You do not seem to have experienced any kind of warm of stable family life yourself.”
O’Sullivan had struck young Mason, causing abdominal injuries, including perforating the child’s duodenum and tearing the mesentery tissues, causing peritonitis and septicaemia and ultimately the toddler’s death.
The CJ gave him nine years, with eligibility for parole on July 29, 2022, which would be six years since he went into custody.
The hacks at The Courier Mail and The Sunday Mail were apoplectic. Mason was less than two years old when he died, yet his killer will be out in just four years.
Into the fray leapt the odious former premier, Can-Do Cambell Newman, with the claim that his hand-picked but now ex-chief justice Tim Carmody would have handed down a decent sentence.
“It’s a pity that Tim Carmody as chief justice was not permitted by his peers in the judiciary to adopt a stance more in line with community standards,” lamented Can-Do.
It was left to Terry O’Gorman from the Queensland Council for Civil Liberties to point that Newman’s comments, “starkly demonstrated a worrying trend among law and order politicians that some judges are ‘our judges’ and the rest are out of touch”.
O’Gorman suggested there needed to be caution before Banana Benders let “law and order politicians and their media allies take them increasingly down the US judicial road where politicians positively ‘own’ their judicial appointments and tell them before they are appointed how they should decide future cases”.
Some recent appointments to federal courts and the AAT would suggest that already we’re on that road.
One of Justinian’s field agents in London this week snapped the price list in the window of Ede & Ravenscroft. Here it is, FYI …
There is more to the NSW government’s plan to increase the retirement age of state judges and magistrates than meets the eye.
The NSW bar ‘n’ grill had been promoting this idea and it seems AG Mark Speakman has picked it up and taken it too far.
The compulsory retiring age is to be extended from 72 to 75 and the voluntary retiring age from 60 to 65. However, the AG wants the new retirement ages to extend to all serving judges as well as prospective appointments.
In other words, the legislation will be retrospective. The proposed changes also apply to the solicitor general and the relevant people at the Office of the DPP. Ancient acting judges will also be permitted to stay on till they are 78 years of age.
The bar is shocked and alarmed. In a letter to a member of parliament on October 8 bar president Arthur Moses wrote:
“In the view of the NSW Bar Association such retrospective changes create a dangerous precedent. Increasing the retirement age with retrospective effect may operate to preserve the current composition of the judiciary, the diversity of which lags behind community expectations, and unacceptable delay renewal of the bench.”
He is also opposed to increasing the retirement age of acting judges and a “consensual opt-in model” for existing judicial officers …
Apart from entrenching stale males in the judicial saddle for longer than hoped, retrospectivity creates the precedent that what can be given to judges in one piece of legislation can be taken away in another. As Moses said in a message to his rank and file on September 20:
“We must be careful to learn from the recent attempt of the Polish government to reduce the retirement age of judges in an attempt to purge the judiciary.”
Speakman also pointed to money saving opportunities:
“It will continue to be a requirement that (absent ill health) judges serve at least 10 years on the bench in order to receive the maximum judicial pension upon retirement. The change in retirement age will decrease the average number of years that judges receive the pension which is expected to reduce the state’s financial liabilities.”
Of course, one way of freshening the bench and getting greater renewal and turnover is to reduce the compulsory retirement age from 72 to 65, or even lower.