Retiring Chief Judge Blames Government for Family Court Failings

Wednesday, 22 August, 2018

Image: Sydney Morning Herald

After 21 years on the bench, Chief Judge of Western Australia’s Family Court, Stephen Thackray has announced his retirement in a "State of the State" speech to the Family Law Practitioners Association conference on 11 August.

High praise for staff and Judges

Justice Thackray has served in all except one judicial office in the family law system from Principal Registrar and Senior Magistrate of the Family Court of Western Australia, to Head of the Appeal Division of the Family Court of Australia, and as Acting Chief Justice of that Court.

The only role in the Australian family law system he has not filled – so far – is that of a judge of the Federal Circuit Court.

“What I’ve observed over 20 years of close observation is that with, I guess, just a handful of exceptions, the judges of this Court work very much harder than I think the Australian taxpayer would consider reasonable or fair,” says Justice Thackray.

“They work so hard that I worry for their health. They work so hard that I worry for their families. They agonise so much over their decisions that sometimes I feel they might crack.”

Justice Thackray also heaped praise on the of the staff of the courts and registries around Australia who continue to give tirelessly in difficult circumstances, even though they have not had a pay raise for four years and eight months.

“I thank you from the bottom of my heart. You are all terrific people.”

“While some people seem to think of courts as consisting only of Judges, that is like believing that the tip above the water is the only part of the iceberg. Without the ice below the water, the tip would rapidly melt and become nothing at all,” he added.

Slams Government for the inefficient system

In recent farewell speeches, Chief Judge Thackray attacked successive Australian governments for creating an underfunded and “inefficient” system. The esteemed judge acknowledged he had been “burning to say these things for years.”

The retiring Judge said more funding was urgently needed because there were not enough judges and registrars and “those judges we do have are either not replaced or replaced after inordinate delay”.

Lack of funding and delays in replacing or appointing judicial officers has been a long-standing complaint.

Read: Opinion: Reinstated funding to CLCs not enough to make me a George Brandis fan

“We have been lumbered with most extraordinary legislation that has grown like topsy and appears to have been drafted by a committee of people charged with the responsibility of making things as difficult as possible for judges and particularly for self-represented litigants.”

“Our current law is completely misunderstood by even well-educated Australians, and I am, indeed, sorry to say that it is often misunderstood by lawyers. And, worse still, it is misunderstood by some judges, particularly those very unfortunate ones who are appointed to sit in family law matters with no family law experience.”

“We have what I consider to be a bizarre structure where two courts share an almost identical jurisdiction. Instead of working together, almost everywhere they work in isolation, confusing the hell out of everyone with separate forms, rules and processes.”

“If there is any winner in that war it sure is not the Family Court and it sure is not the children of Australia.”

“There is a huge social and broader economic cost in having thousands of citizens of this country tied up in litigation while their mental and physical health deteriorates.”

Judge Thackray feels that there are simply not enough judges and registrars.

“We need a much better-resourced family law system and we desperately need a bipartisan attempt to reconstruct our Federal law system into a coherent model,” said Judge Thackray.

Looking forward to reform and retirement

Judge Thackray briefly offered some thoughts on the family law reform which is currently underway.

“I would be very, very careful before taking decision-making away from expert decision-makers and giving that responsibility to social workers and psychologists, notwithstanding that some of my best friends are social workers and psychologists!”

“In my very long experience of working with social workers and psychologists, they prefer not to make decisions about other people’s lives. They help them and support them once the decision has been made, as well as providing advice to the decision-maker.”

Looking forward, the retiring judge shared with his audience that he was lucky enough to grow up on a small wheat farm north of Perth and still regards himself as “a boy from the bush”.

“I look forward to making a contribution to family law in some capacity during my retirement. I am especially keen to continue my work with Aboriginal people who have so much to contribute to our knowledge of resolving family conflict.”

Judge Thackray will step down from his role as Chief Justice of the Family Court of Western Australia on 6 January 2019.