Family Court delay puts new life on hold

More than three years after hearing was completed, judge has still not handed down ruling that would allow parents to marry.

Family Court Justice Jenny Hogan.

It should be the happiest time of Laila Clayton’s life. Last week, the 41-year-old brought her newborn baby home from hospital — a tiny sister for her nine-year-old, who had ached for a sibling.

Instead, the mum from ­regional NSW, whose name has been changed for legal reasons, faces grinding uncertainty. She cannot marry her baby’s father, who is from South America, and cannot sponsor him to remain in the country on a partnership visa, because she is unable to show she is divorced under Australian law.

For more than three years, Clayton has been waiting for a judgment from the Family Court that might allow her to move on from her former husband, a wealthy Middle Eastern businessman. Justice Jenny Hogan presided over a court hearing ­between the pair on ­August 3, 2015. But the Brisbane-based judge is yet to rule on whether they are divorced under Australian law and if the Family Court is the right forum to resolve their property dispute — or if it should be dealt with in the country to which her former husband, who is the father of her oldest daughter, has returned.

Clayton’s lawyers have written on her behalf to the current Family Court Chief Justice, the former chief justice and to ­Attorney-General Christian Porter, but she is still waiting for a ­result. This week, she finally ­received notice that a judgment would be delivered on September 18, but even if it goes her way, that would just mark the start of her property litigation.

“It’s just life-destroying,” Clayton told The Weekend Australian. “I’ve spent all my money. But in some ways I’m one of the luckier ones, because I’ve got my daughter with me.”

Her life is not the only one on hold. The Weekend Australian has been told by family lawyers that Justice Hogan has another judgment outstanding from a hearing that ended more than four years ago. This is despite an expectation that 75 per cent of Family Court judgments be delivered within three months of the completion of a hearing. The judge has also been the subject of multiple letters from the Queensland Law Society.

It is understood other judges on the Family Court and the lower-level Federal Circuit Court, which handles about 90 per cent of family law disputes, have judgments that have been reserved for lengthy periods — a situation lawyers say is symptomatic of the dysfunctional and overstretched system.

The Weekend Australian has been told Federal Circuit Court judge Anne Demack has at least two judgments that have been outstanding for more than four years. Judge Demack, whose ­father Alan was a Queensland Supreme Court judge for 22 years, was picked by former attorney-general George Brandis to become the first Federal Circuit Court judge for Rockhampton.

The Family Court and Federal Circuit Court have refused to ­answer questions relating to individual judges.

The Weekend Australian can reveal Justice Hogan agreed last year to stop hearing cases temporarily to clear her backlog. But last week, she was sitting in Sydney and yesterday she presided over a hearing in Brisbane.

The Weekend Australian has uncovered another case in which the QLS wrote to the chief justice in March last year about Justice Hogan’s delay in deciding a custody dispute involving twin boys and a girl whose father had been accused of sexually abusing the daughter. Concerns had been raised about the children’s state when they were in the mother’s care. Then chief justice Diana Bryant replied a month later that Justice Hogan was aware of the need for the judgment and had agreed to “cease sitting for a ­period” to complete “this and other judgments” but could not give a firm date for delivery.

The case had been heard over six days between June and September 2015, when the children were aged about 7 and 6. It was not until May this year that Justice Hogan finally handed down her decision. This is despite the matter being on the court’s Magellan list, reserved for cases involving the most serious abuse allegations, which are meant to be completed within six months.

In her judgment, Justice Hogan apologised to the parties for the delay and assured them she had regard to her “extensive contemporaneous notes” from the hearing. She ruled the father could have only supervised contact with his children, indefinitely, because he posed an unacceptable risk to the daughter.

The Weekend Australian has found a further 11 cases in which Justice Hogan has apologised to the parties for a delay in delivering her judgments. They include a case in which a mother had ­abducted her two children and ­alleged the father had held a knife to her throat; despite the family’s distressing situation, it took Justice Hogan 14 months to deliver a decision.

Gold Coast family law partner Dean Evans said delays, particularly in parenting cases, caused “multifaceted problems” for clients, leading to lengthy periods in which a parent might be unable to see their child, or see them only under supervision. Litigants also had less faith in a judge’s ability to recall the facts or the demeanour of witnesses — and to deliver a just outcome. “Time marches on, values change, kids grow,” he said. “Is a judge going to guess what’s in the best interests of a child after all that time has passed?”

Figures from the QLS reveal it wrote to the Family Court regarding six delayed judgments last ­financial year, and 13 in 2016-17, and to the Federal Circuit Court about 42 delayed judgments in 2017-18 and 21 the previous year. Waiting times for family law ­litigants have blown out across Australia. A recent PwC report revealed the median time to reach a trial in the Family Court had risen to 17 months, and in the Federal Circuit Court to 15.2 months.

The problem of lengthy delays for decisions following a trial ­appears, anecdotally, to be worst in Queensland. QLS president Ken Taylor said he believed the “unacceptable delays” in some Family Court judgments were the result of a lack of resources.

Mr Porter has introduced legislation to parliament to merge the Family Court and Federal Circuit Court in a bid to improve efficiency. He said it was clear from recent reviews there was “a sizeable number” of judgments delayed beyond the three-month benchmark set in both courts. While it was up to the courts to publish information on reserved judgments, he said one option, when drafting rules for the new, merged court, was to allow for more transparent reporting on key indicators.

The Law Council of Australia has warned that the court restructure will not resolve the delays without more resources — and could make them worse.

At 49, Justice Hogan is the Family Court’s youngest judge. She was appointed by Labor ­attorney-general Nicola Roxon in January 2013, and was well-credentialled for the role, having been a family law silk before her elevation to the bench.

University of NSW associate professor of law Gabrielle Appleby said that, in some United States jurisdictions, judges could be disciplined for failing to deliver decisions on time. But in Australia, powers to deal with the problem were more limited. The heads of each jurisdiction could take a judge off hearings, or refer them to parliament for possible removal on the grounds of proven misbehaviour or incapacity — but had few other powers at their disposal.

Appleby said that, in some cases involving state judges who had struggled to deliver timely judgments, mental illness or a change in personal circumstances had been involved. She said the courts were not good at helping judges to deal with the “emotional toil” of their role or to support those with mental health issues, and needed to do better.

Clayton estimates she has spent about $1.2 million on legal fees fighting her former husband over the past five years — almost as long as their seven-year marriage. Her oldest daughter has watched her parents battling in the court since she was four.

After Clayton filed for a divorce in 2014, 12 months after ­separation, her ex-husband produced a divorce certificate from his own country that stated Clayton owed him a dowry because she was responsible for the failure of their marriage and had kidnapped their daughter.

In 2013, the Family Court ruled their daughter should live with Clayton and have only supervised time with her father. However, the father successfully appealed against the issue of supervision and the case was sent for rehearing in July last year, before Family Court judge Colin Forrest. They are still waiting for a decision.

“He wanted to financially destroy me and try to ruin my life, which is what he’s doing,” she said. “It’s a form of domestic violence that the courts are allowing.”

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