Insights and Inspiration
Who Judges the Judges
12 September 2016
In rugby league, if the referee makes a call, it can be reviewed by what they call the bunker. In rugby, it is the third match official or TMO. In cricket they have the third umpire.
Usually, a Judge has a court of appeal. In the Family Court it is called the Full Court of the Family Court. The reason for the bunker, the TMO, the third umpire, the video ref, and the Full Court is that referees, umpires and judges are all human, appearances to the contrary notwithstanding. That is, they are all capable of making mistakes.
What characterises all of these systems, though, is that the referee, or umpire, or judge does not usually get the chance to second guess himself or herself, or have another go. However, earlier this year a judge did just that, in circumstances that had to involve an appeal.
In the family law system judges are always under pressure, because they have many cases and little time in which to decide them. This is never more true than in the case of interim parenting application where the judge does not have the benefit of hearing witnesses in cross examination, and must decide only on the basis of the documents in court and the arguments of the lawyers. So judges are often called upon to make quick judgments, and these are often delivered off the cuff. Parties want to know the outcome.
Sometimes if a case is difficult, the judge will take time to think about it and deliver it later but if you do that too often, you get a backlog building up, unhappy litigants, and even more highly stressed judges.
So there is a pressure to make the decision on the day and give the reasons on the day.
In this particular case a judge in the Federal Circuit Court gave a judgment and gave reasons in court after a short hearing. The case concerned parenting orders in relation to three young children. There were allegations of drug or alcohol use that might have had a bearing on the capacity to care for the children, and on the other side allegations of family violence.
After the judge gave his reasons in court, he had the opportunity to think over them before publishing them in writing to the lawyers for the parties. Here is where the trouble began though, in fact, it began even earlier.
A judge can fix things up to a limited extent, when he goes from what he said in court to what he causes to be written down. The law permits a judge to fix slipups, express the words perhaps more stylishly, but not to change the substance of his decision. Only an appeal court can do that. The judge cannot act as his own court of review because the parties would then be confronted by one set of reasons given in court and another set of reasons altogether when the written version came out.
Here, the judge crossed the line. In his judgment in court he allocated sole parental responsibility for the children to the father. When he came to write out the judgment he said that the parents should have equal shared responsibility for the children.
If that isn't a change of substance, where children are concerned, I don't know what is.
For that reason alone, the appeal court overruled the judge but they went further.
The judge in his reasons, whether they were given in court orally or later in writing, paid no mind to the family violence allegations apparently committed by the father, formed views about potential alcohol or drug abuse on behalf of the mother when he was not properly able to do so on the evidence, and for those reasons as well the appeal court determined that the judge's approach was flawed and the judgment should be overturned.
At the cricket or the football, it doesn't cost anything to appeal to the video referee. In court, it certainly does cost money to go to an appeal court. Where the judge makes a mistake of law, the appeal court can give the parties a certificate that entitles them to get some of their costs back from the government, though by no means all. That, too, happened in this case.
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