Taxpayers will foot the legal bills for a rehearing of a family law case involving two special-needs children after a judge’s “gross and deplorable” seven-year delay in delivering her judgment led to her making substantial errors.
Federal Circuit Court judge Anne Demack not only took seven years to hand down her decision but lost the court file.
When she finally delivered her judgment, she failed to take account of relevant evidence, made material mistakes of fact and gave inadequate reasons.
Family Court judge Steven Strickland said despite the “extraordinary” delay, the judgment contained so many spelling mistakes, non sequiturs and gaps in reasoning it appeared to have been “hurriedly put together”.
The delay was “rendered palpably worse” by the fact there was nothing in the judge’s reasons that sought to explain or justify it, he said.
The full Family Court sent the case back for rehearing, giving the warring parents a costs certificate to cover their legal costs of the new trial. The father’s costs of the appeal will also be covered by taxpayers.
Lengthy delays in delivering judgments were “completely unacceptable”, a Federal Circuit Court spokeswoman said, and significant changes had been made to the way it tracked judgments to prevent this happening in the future.
As previously revealed by The Australian, the parties had written to the court at least five times requesting her judgment.
This is not the first time Judge Demack, the Federal Circuit Court’s sole judge in Rockhampton, has come under fire for long delays — The Australian revealed in 2018 that she had two decisions that had been outstanding for four years.
The court spokeswoman said Judge Demack currently had three overdue judgments. The judge had been provided with an extensive range of support measures and had, at times, been stood down from hearing cases to allow for judgment writing.
Judge Demack handled about 500 cases a year, she said, and delivered a significant number of decisions on the spot.
“There appears to have been an error in the reporting system which did not identify the outstanding judgment,” she said. “When the Chief Judge (Will Alstergren) became aware of the reserved judgment, it became a major priority and immediate steps were taken to ensure the judge was able to complete it.
“The court is confident that there have been improvements in data collection and monitoring that will prevent this from happening into the future.”
However, she said the Chief had a “limited number of powers available to him” to manage judges, including counselling, mentoring and in exceptional circumstances, temporarily removing them from sitting.
The Law Council of Australia, the Judicial Conference of Australia and legal academics have called for an independent body that could handle complaints about federal judges. The government has sought legal advice on the design of a judicial complaints agency.
The original trial before Judge Demack took place in 2013 and the hearing was twice reopened, in 2018 and 2019.
Justice Strickland said the judge’s decision “might have reasonably been expected” to be delivered expeditiously after the 2019 hearing — but she took more than a year to deliver it from that point.
The parents separated in 2012, when the children were aged about two and three, soon after the mother had a big Lotto win.
Judge Demack failed to engage with the father’s case in relation to both their parenting and property disputes, the appeal court found.
After the judge informed the parties’ lawyers in 2019 that the court file had “disappeared”, they provided her with copies of their filed documents, but it was “unknown” whether the missing exhibits, provided as evidence during the trial, were ever replaced. Family Court judge Stewart Austin said the only reasonable inference to draw was that Judge Demack, when deciding the case, “was deprived of and therefore did not take into account material evidence”.
During the long wait for judgment, the mother repeatedly breached the interim parenting orders in place, denying the father access to the children for months at a time.
She also pulled the children — one with autism and the other with ADHD and mental health problems — out of school and commenced home schooling them.
The mother was twice handed a good behaviour bond and forced to re-enrol the children in school. She failed to pay the father’s costs of bringing the contravention proceedings, despite being ordered to do so.
Justice Strickland said despite the case’s unfortunate history and the inordinate delay, the appeal court did not have power to decide the parenting and property dispute. The case was sent back for rehearing by a different judge.
Law Council president Jacoba Brasch QC said: “The Law Council has long called for a federal judicial commission to promote accountability for judges.”
Judge Demack was appointed by former attorney-general George Brandis. Her father Alan Demack was a Family Court judge for two years and a Queensland Supreme Court judge for 22 years.
The court spokeswoman said a more rigorous induction process for new judges had been introduced. Chief Judge Alstergren had also introduced new measures to support judges, including a formal and ongoing mentoring program and closer management and monitoring of judgments. There were also mentoring and counselling opportunities with judges of superior courts or retired judges.
She said the transition to a full digital file over the past year would help in recording data relating to reserved judgments.