Court delays. Isn’t it time to join up the dots?

 
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It may have been subtle but it was there. In Hall v Hall [2016] HCA 23 the High Court of Australia sent a message to lower courts. It also sent a message to the second arm of government, the Executive. The message was that court delays are alien to the needs of justice.

The scene

The facts of Hall –v- Hall are a long way from Federal or State budgets, although the case has a financial factor at its core. The case involved the application to discharge an interim spousal maintenance order.

Round one: no delay

The wife’s application for an interim spousal maintenance order was filed on 20 October 2013 and heard on 9 December 2013. Orders were made on the following day that the husband pay maintenance to the wife in the sum of $10,833 per month pending the final hearing of the proceedings.

Round two: some delay

Armed with additional information, the husband filed an application for discharge of the interim spousal maintenance order on 7 March 2014. The primary judge heard the discharge application on 14 March 2014. More than three months later, on 17 June 2014, the primary judge made an order dismissing the husband’s application for discharge of the interim spousal maintenance order.

Round three: unacceptable delay

An application for leave to appeal to the Full Court was lodged by the husband on 14 July 2014. It was heard by the Full Court on 12 November 2014. The judgment of the Full Court was delivered on 7 August 2015. The majority of the High Court[1] said that “That delay of nearly nine months in delivering judgment on an application for leave to appeal from the dismissal of an application for the discharge of an interlocutory order is unexplained. On any view, the delay is unacceptable”[2].

Routine lengthy delays

There are, no doubt, many reasons for unacceptable court delays. There will have been court delays for as long as there has been courts. But it also undoubtedly true that the Family Court and Federal Circuit Courts routinely have significant delays in family law cases. And, most troubling, experienced legal practitioners working in that jurisdiction comment that they have never experienced delays to the extent that they now commonly exist.

The Law Society of NSW has agitated this issue because unacceptable delays[3] are a significant concern for many reasons. Obviously, delay is essentially a denial of justice. But there is an extra dimension to the problem when the parties to family law matters are exposed to lengthy delays, as there are adverse impacts on family finances and emotional wellbeing, and the wellbeing of children.

Part of the problem

Currently judges are not being replaced while on extended leave. This is part of the problem. This situation means that the cases of judges who are on extended leave have been reallocated to sitting judges, resulting in around 500-600 cases in each judge’s docket in the Federal Circuit Court. Usually a judge would expect to have around 150 matters in their docket, enabling them to finalise matters within six months. The extra numbers make it impossible for the court to finalise matters efficiently and to hear urgent applications.

Other problems

The increase in judges’ caseloads is a result of there being too few judges to hear and finalise cases efficiently. At present, the Federal Government will not replace a judge until he or she has retired or resigned. This means that judges who take long service leave prior to retirement or are on long-term sick leave are not replaced and their cases must be shared among sitting judges[4]. Another factor is that over the last decade cases have increased in complexity.

The delays become self perpetuating as the lengthy delays to trial result in litigants seeking interim and interlocutory hearings, to put in place some preliminary arrangements for children, or for urgent financial adjustment or injunctions.  This then compounds the delays. The worst delays are in Sydney where more interim applications are brought than other locations.

In the Circuit Court there are no registrars to assist with case management work, in making procedural orders prior to the conciliation conference stage. This means that judges spend time running lists and making procedural orders for case management rather than hearing cases.

Solution

The Law Society of NSW and NSW Bar Association recently wrote to the Federal Government requesting an urgent review of Court resourcing in relation to family law cases. The second solution is a commitment to promptly replace judges as they retire or take long service leave prior to retirement.

The only bright spot in all this does not address the problem with federal courts dealing with family issues, but there was $39m allocated in the NSW State budget for the District Court.

Joining the dots 

As for me joining the dots and to assess the High Court by the standards it sets for others, the Court heard the appeal from the Full Court of the Family Court on 4 May 2016. On 8 June 2016 the HCA delivered its reasons discharging the interim spousal maintenance order.

[1] French CJ, Gageler , Keane and Nettle JJ; Gordon J dissenting.

[2] [2016] HCA 23, [28].

[3] The time taken from lodgement to the first day of trials is 15 months in the Family and Federal Circuit Courts according to information provided at Senate Estimates on 9 February 2016. In some registries, particularly Sydney and Parramatta, the average time is much longer. It takes approximately 2 years and sometimes up to 3 years in Sydney Registry for a trial date to be allocated to cases, with median time to trial in Sydney being 18.4 months.

[4] The Parramatta Registry of the Federal Circuit Court has 3 Judges who are doing the same amount of work as that previously done by 5 Judges, 2 of whom are on long leave, pending retirement. Judges are working 60 to 70 hours per week to cope with the load, but still cannot get through the same number of cases as 5 judges had.

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