By Nicola Berkovic - The Australian
Chief Justice John Pascoe. Picture: Renee Nowytarger.
Chief Justice John Pascoe. Picture: Renee Nowytarger.

At least one Family Court judge fears his judgments will not be dealt with fairly on appeal because he is not part of a “cheer squad” of other judges, while another questions whether alleged intimidation by another judge could amount to a breach of criminal laws.

This is part of warfare that has broken out in the Family Court, with judges firing off unpleasant emails to one another and making accusations of bullying.

The conflict comes as new Chief Justice John Pascoe, installed last October by former ­attorney-general George Brandis, tries to overhaul the court’s processes in an effort to make it more efficient and reduce shocking ­delays for litigants.

Chief Justice Pascoe has triggered an explosive response from the legal profession by sacking popular West Australian judge Stephen Thackray as head of the Family Court’s appeal division.

Justice Thackray has been ­replaced by the chief judge of the lower, and much larger, Federal Circuit Court, with Melbourne-based Will Alstergren, who intends to fulfil both roles.

The move has triggered an angry response from many family lawyers across Australia, who have described it as “outrageous” and “bizarre”.

Law Council of Australia president Morry Bailes wrote a letter to Chief Justice Pascoe on Monday, saying the dual roles created a “real concern of perceived bias” and urged him to reconsider his decision.

“As you may appreciate, the dual positions of Chief Judge of the Federal Circuit Court and now ­administrative leader of the ­Appeals Division of the Full Court of the Family Court of Australia, causes a real concern of perceived bias as matters from the Federal Circuit Court are often appealed to the Family Court of Australia,” Mr Bailes wrote.

“This bias, if not addressed, risks traversing across the levels of the courts in the family law ­jurisdiction.”

Justice Thackray had also held a dual role, as head of the Family Court of Western Australia, which is the only state to have retained a separate family law system.

Appeals from the Family Court of WA, like the Federal Circuit Court, are determined by the Family Court of Australia.

A looming shake-up of the Family Court, including the court’s appeal division, has sparked deep unhappiness among some Family Court judges.

The Australian understands that members of a committee hand-picked by Chief Justice ­Pascoe to assist with court reform, felt intimidated by other members of the court.

At least one Family Court judge raised concerns with colleagues that his judgments might not be dealt with fairly on appeal because he was not part of a group that supported Justice Thackray while another judge questioned whether, as a public official, his potential intimidation could amount to a criminal offence.

In a bid to contain the internal brawling, Chief Justice Pascoe wrote to all judges last Thursday, saying it had come to his attention that emails had been circulated among judges about recent changes and that “bullying or ­intimidation of judges” would “not be tolerated”.

“I have been surprised at the content and tone of some of them,” he wrote in a memo sent to all judges and obtained by The Australian.

“Quite frankly, some of the emails should never have been sent by one judge to another.”

The Australian understands several judges have raised concerns with Chief Justice Pascoe about the removal of Justice Thackray and appointment of Chief Judge Alstergren, and the judges of the appeal division circulated an email praising Justice Thackray. However, some Family Court judges are supportive of change, and believe fresh blood is necessary to reform the court and tackle its backlog of cases.

Following his sacking from his administrative role, Justice Thackray resigned from the ­Family Court’s appeal division. A ceremonial farewell will be held for him in Sydney today.

He will remain Chief Judge of the Family Court of WA.

Stephen Thackray.
Stephen Thackray.

Mr Bailes said in his letter to Chief Justice Pascoe that Justice Thackray’s leadership had been exemplary and had “resulted in significant improvements in all areas of operation of the appeal division”. This included a significant reduction in appeal times from two years in Sydney, to six to 12 months.

He said it was “difficult to understand” how Chief Judge ­Alstergren could fulfil his new position “without detriment” to his role as head of the much busier Federal Circuit Court.

“It is well known that the administration of the Family Law Act is under sustained and ­increasing pressure from both reduced resources and a prohibitive workload,” Mr Bailes wrote. “In such times, it is difficult to understand the rationale and what it would achieve, for one of the most successful judge administrators and most widely respected jurists in the court to be removed from his role in managing the Appeal Division of the Full Court of the Family Court of Australia and for further responsibility to be ­assumed by the Chief Judge of the Federal Circuit Court.

“The LCA considers the decision is one that can only be to the detriment of the legal profession and community as a whole.”

Former West Australian premier and prominent family lawyer Peter Dowding SC told The Australian he was extremely disappointed by the decision to remove Justice Thackray as manager of the ­appeals division.

“It is a desperately sad thing that the clique of Melbourne and Sydney lawyers are trying to take over the family law process ­because, to be quite frank, they can’t hold themselves up in any way as the paragons of efficiency in the court system,” he said.

He said Justice Thackray was a “very good and efficient” administrator. “Appeals are now being ­decided quicker than they’ve ever been decided,” he said.

 

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