Outgoing Family Court judge Robert Benjamin calls for federal oversight

A retiring Family Court judge says a judicial complaints body is needed and backs fee caps for family lawyers in property cases

Robert Benjamin. Picture: Eddie Safarik

A federal judicial complaints body is needed to hold judges to account for their work and to help those “not managing well”, says a retiring judge.

Outgoing Family Court judge Robert Benjamin has also backed fee caps for lawyers in divorce property cases and called for changes that would allow family law judges to issue domestic violence orders rather than victims applying to a separate state-based magistrates court for protection.

The well-respected Tasmanian judge, stepping down after 15 years on the bench, said the recent merger of the Family Court and lower-level Federal Circuit Court was a “tremendous step forward” for the family law system.

Mr Benjamin said he could “not understand” the furore from the legal profession over the courts merger, which would help to cut waiting times by enabling the court to allocate cases more efficiently between its two divisions and reduce confusion for families by establishing just one entrance to the family law system.

The backlash may have been prompted by a fear the system would be “devalued”, but he believed this was unfounded.

The ranks of Family Court judges, who would form Division 1 of the new court, had been boosted to the highest number in years — and now, Federal Circuit Court judges, who would form Division 2, would also need relevant skills and expertise, he said.

“I think it’s a tremendous step forward,” he said. “I don’t see the Family Court being lost.”

A new federal judicial complaints body, modelled on existing state judicial commissions, could help judges who were not managing well by identifying the reason, Mr Benjamin said.

This might be because they had too much work or were suffering vicarious trauma from difficult parenting cases, and needed time off to obtain counselling.

“A federal judicial commission would enable recognition of that and give a Chief Justice or the system the power to say, ‘look, maybe you need to take some leave or get treatment’,” he said.

“In the rare instances where judges are unable to manage, ways can be found to manage them out of the system. I think judges can’t be accountable to the executive or legislative government but they must be accountable for what they do in terms of their work.”

His comments come after Federal Circuit Court judge Guy Andrew, who had been the sole judge in Townsville, committed suicide last year after coming under heavy criticism from the Family Court on appeal for rude behaviour that amounted to an abuse of his position. Fellow Federal Circuit Court judge Anne Demack was recently criticised on appeal for a “gross and deplorable” seven-year delay to deliver a judgment.

The Law Council of Australia and the Australian Judicial Officers Association have backed the creation of a federal judicial commission, on which the Morrison government has sought advice.

One of Mr Benjamin’s most highly publicised judgments, in 2017, attacked the “obscenely high legal costs” charged by some family lawyers and an apparent “win at all costs, concede little or nothing, chase every rabbit down every hole” approach to litigation.

Mr Benjamin, who turned 70 on Sunday, told The Australian that while good and competent lawyers helped families to find solutions to their problems, he was still concerned about overcharging by a few.

“There are very small numbers who see it as a money-making exercise and it’s the responsibility of bar associations and legal services commissioners to find those people and ensure that they don’t thrive,” he said.

A cap on fees in property cases — recently recommended by a federal parliamentary inquiry — could help, provided it was applied to both sides and was proportionate to the amount in dispute, he said. “If you’re arguing over $100,000 of superannuation, you shouldn’t be able to spend $50,000 each,” he said.

The trouble with excessive fees was that families had to survive afterwards, and if at the end of a hearing they had lost all or a significant part of their wealth it was difficult to recover, he said.

Before his judicial appointment, Mr Benjamin was a Sydney-based partner at leading family law firm Watts McCray, which has come under fire for overcharging.

Even then, if somebody had said, “I’m going to use my economic strength to destroy someone else and we’re going to spend a disproportionate amount on fees”, he could not have ethically been part of that, he said.

Mr Benjamin, a former NSW Law Society president, was encouraged to practise law by his uncle Bert Benjamin, a successful Tasmanian commercial lawyer.

The pair had a close bond; the retired judge lived with his uncle for a period after his sister fell into a bath of boiling water and was hospitalised for seven months.

He commenced legal practice in 1975, the year the Family Law Act was introduced, and as a young lawyer was run off his feet handling divorce cases.

Whereas previously, a divorce had cost 10 weeks’ wages, after no-fault divorce was introduced, couples could divorce for the equivalent of about a week and a half’s wages and without attacking their ex spouse. The work steered him into a career in family law.

To improve the system, Mr Benjamin said family law judges should be given powers to make domestic violence orders in family law cases — reducing trauma by removing the need for victims to seek orders in a separate court. Such orders could apply nationally and be enforced by state police and state criminal courts, he said.

More flexibility was also needed to prevent the most vulnerable children falling through the cracks between the federal family law courts and state child welfare systems — a problem he identified in a previous publicised judgment and speech in which he lamented the lack of power family judges had to force state authorities to intervene in cases of abuse.

He said some judges should be given dual commissions, as both federal family law judges and state judges, so they could make orders without families bouncing between the two systems.

At a speech to mark his farewell on Friday, he reflected on his purpose in life. He said while everyone faded from living memory about 80 years after their death, the goodness people did for others lived on.

“Any goodness I have been able to share is because of the goodness I learnt at the feet of my family, my friends and my mentors,” he said.

“The goodness and wisdom they passed on to me came from their ancestors and their mentors. … As I’ve got older I’ve come to understand that my purpose in life is not much more complicated than not breaking the chain.”

Now, Mr Benjamin, whose adrenaline-based hobbies have included flying light planes, scuba diving and heli-skiing, is looking forward to spending more time with his grandchildren and has been appointed as a Commissioner to Tasmania’s inquiry into child sexual abuse in institutional settings — enough to keep a “feather duster” busy.