Attorney-General under pressure over Family Court appointments

Mr Porter announced last week that former Victorian silk Will Alstergren, who was appointed by former attorney-general George Brandis as chief judge of the lower-level Federal Circuit Court (FCC) in October last year, would take the reins as Family Court chief justice from December 10.

Attorney-General Christian Porter has courted controversy by appointing an inexperienced family law judge as the chief justice of the Family Court.Photo: Alex Ellinghausen

The new chief justice will retain his role as chief judge of the FCC, as the Coalition pushes ahead with a plan to merge the two courts into a new mega-court to be called the Federal Circuit and Family Court. The FCC already deals with a high volume of family law cases alongside migration matters.

As part of the merger, the existing appeals function of the Family Court will be removed and appeals from the new court will be heard by the Federal Court.
The elevation of Chief Judge Alstergren, who has been on the bench for less than a year, met with a distinct lack of enthusiasm in some sections of the legal community.

The Law Council of Australia, the peak body representing the legal profession, declined to comment on the appointment of the new chief justice and his deputy, former Labor attorney-general Robert McClelland. Mr McClelland has been a Family Court judge since June 2015.
Asked if the NSW Bar Association welcomed the appointments, President Arthur Moses, SC, said, “The NSW Bar has no comment to make on these appointments”.

Professor Patrick Parkinson, family law expert and dean of law at the University of Queensland, said he did not think Chief Judge Alstergren or his new deputy would “claim to be jurisprudential leaders” in family law but both roles would involve a great deal of managerial and administrative work.

Former attorney-general George Brandis scrapped a process for appointing Commonwealth judges that was introduced by the former Labor government.Photo: Alex Ellinghausen

He said the “real issue now is the intellectual leadership of the appellate division” of the new Family Court structure, and “the big question is where that leadership will come from”.

Chief Judge Alstergren was “very new, not only to the family law environment but also to his role as a judge” but was hard-working and energetic and would “give his all to the job and more”, he said.
Professor Parkinson said he had “enormous confidence” in Mr Porter, and the well-respected Justice McClelland had “worked incredibly hard to master his task” as a Family Court judge over the past three years and was likely to be a “very good and strong deputy chief justice”.

On Thursday, the Chief Judge of the Family Court of Western Australia – the only state to boast its own Family Court, which is unaffected by the federal merger – delivered a paper highlighting the importance of a transparent merits-based system for appointing judges.

Justice Stephen Thackray was not commenting on recent appointments, which were announced after the paper was written, but he noted the former Labor government had “developed what appeared to be a successful mechanism … to recommend appointments to the family courts”.
This mechanism, which involved judicial vacancies being advertised and the use of advisory panels to assess candidates, was scrapped by Mr Brandis.

“It is unclear why that mechanism has been scrapped. Perhaps whilst we consider something more formal, it might be worth giving it another try?” Justice Thackray said.
Mr Moses said it was a “timely paper … that emphasises the public needs confidence that those appointed to the Family Court should be expert specialists who owe their fidelity to the law, not those who appoint them”.

Mr Porter is expected to respond to Justice Thackray’s paper this week.