‘Punished for doing nothing wrong’: Queensland judge’s ‘dismaying’ decisions highlight crisis in family law courts | Law (Australia)

Table of Contents ‘They punished me for doing nothing wrong’A burden for the courts‘Not a…

A Queensland judge granted a father custody of his three children while their mother was giving birth and unrepresented in court, despite the father having repeatedly ignored previous court orders.

The father was allowed to remove the children from their primary school immediately and re-enrol them in a school closer to his home, more than an hour’s drive away from the mother, under the order made by Queensland federal circuit court judge Gregory Egan during what was supposed to be a routine hearing.

Egan recused himself from the case when it was next heard almost six months later, offering his “regret” for “erroneously” approving orders that went further than he anticipated – despite him specifically suggesting a reversal of the orders during the earlier hearing.

But it took almost 15 months for the mother to have the custody orders overturned. Final custody orders granted last November resulted in two of the three children living with her permanently. She had been in labour with her first child with her new husband when Egan’s orders were made.

In his first six months on the bench after his appointment in December 2017, Egan handed down this decision, made five decisions that were later successfully appealed, and made comments in another case that were described by other judges on appeal as culturally chauvinistic, rude and gratuitous.

Judges who heard appeals against these decisions found that Egan displayed behaviour that dismayed and concerned them, made orders that had no basis in law, and ignored the submissions of parties.

Egan remains a federal circuit court judge who predominantly hears immigration cases. He stopped hearing family law matters in mid-2018, apart from handing down a judgment in one matter the following year.

But the conduct flagged in the appeal judgments raises fundamental issues with the operation of the family law courts that continue to concern experts: the appointment of judges without a background in family law; the huge workload in the federal circuit court; and the lack of an independent body to hear judicial complaints.

‘They punished me for doing nothing wrong’

The mother, who was given the court pseudonym Ms Tabano, says Egan’s ruling continues to have a profound impact on her life.

At the time the order was made, she had custody of the children full-time, apart from on every second weekend and one Wednesday a fortnight.

Their father, an army veteran and former bikie gang member known as Mr Yabon, was repeatedly ignoring the final court orders made in December 2017, including by not returning them to Tabano and seeking to enrol them in a different school.

On 14 February 2018, a judge granted Tabano a recovery order forcing Yabon to return the children and comply with court orders.

Another hearing was scheduled for 27 February, during which a further report could be prepared after a family consultant had interviewed the children.

On 26 February, Tabano was in hospital being induced. She called the federal circuit court, and was told that Egan’s associate had confirmed the next day’s routine hearing could be adjourned.

Tabano was in labour the next afternoon when her new partner received a text from Yabon saying Tabano had to urgently call the court-appointed independent children’s lawyer.

In the phone call, while she was having contractions, the lawyer told her Egan had reversed the orders and the children were to be taken out of her care.

She says she pleaded with midwives to do whatever they could to speed up the birth so that she could make sure her other children were safe. They were brought to the hospital for her to say goodbye, not knowing when she would see them again.

Every year, in the lead-up to her youngest daughter’s birthday, Tabano thinks about her despair on the day of Egan’s decision, she says.

“It was so traumatic, that day … they had punished me for doing nothing wrong.

“There’s no closure for me yet. And until the courts actually look at me, in my face, and apologise for what they’ve done, I will never be able to heal from this.”

A burden for the courts

Egan, a barrister for more than 30 years who mostly handled commercial law cases, was appointed to the federal circuit court, which hears about 90% of all family law cases, by then-attorney general George Brandis.

Despite his lack of family law experience, Egan’s first months at the bench were spent working through the enormous backlog of these cases.

In a February 2018 ceremonial sitting to mark his appointment, Egan spoke jovially about his yachting adventures and mentioned that one of the three lessons he had learned at the bar was “there’s nothing better in life than fees” – comments that made onlookers question whether it was appropriate for Egan to be hearing family law matters, which often involve people struggling to make ends meet while they are involved in costly legal proceedings.

During the sitting, Egan told the court’s chief judge, Will Alstergren, he was confident they would reduce the caseload.

“Chief judge, under your astute and energetic leadership, I’m sure we will have those pesky court lists licked in no time at all,” he said.

Alstergern said Egan had “hit the ground running” since being sworn in the previous December.

But in the months after that speech, Egan made a series of decisions that only increased the burden on the courts.

In March, Egan adjourned a case because he was concerned that the husband had not disclosed his ownership of a property and that the matter had to be resolved before trial.

But Justice Murray Aldridge found on appeal that this adjournment was made for no apparent reason, given neither party had sought an adjournment and both were ready to proceed. The former wife in the case submitted that she did not want an adjournment because she could not afford to again pay for a lawyer, Aldridge found. He said the actions of Egan caused him “dismay” and it was “difficult to see how any of this was in the interests of the parties or the efficient administration of justice”.

In April, Egan found that a mother should relocate and made orders regarding financial support in a matter involving a five-year-old child without providing adequate reasons, the appeal court later found.

On 8 June, Egan handed down two decisions that would also later be successfully appealed: one in which an appeal judge found he used “value judgments … in place of an analysis of the evidence”, another in which an appeal judge later found he made a decision without jurisdiction.

‘Not a shred of evidence’

Two other decisions in 2018 led to Egan being sharply criticised by appeal court judges.

In a January hearing, a father had submitted without proof that the mother of their son had shaved his arms as a form of punishment, which he said was common in the district of the country they were from.

Egan asserted that this was “not dissimilar to the shaving of a woman’s head after World War II as an admonition for a woman having collaborated with the German armed forces who might have occupied their country”.

On appeal, Egan was found to have taken into account “irrelevant considerations, including an analogy between disputed conduct on the part of the mother and an asserted practice of the Nazis directed to collaborators for which, in any event, there was not a shred of evidence”.

In another case – in which the appeal was dismissed – Egan was found to have made “gratuitous comments” that were rude and displayed “cultural chauvinism” when he said that a man who needed a Chinese-language interpreter had not “taken the time to learn … about what our culture is”, but that was “no excuse” for not being able to understand the proceedings.

Several of the successful appeals included cost orders being granted to the parties, meaning the commonwealth had to pay the legal fees associated with the appeal.

A federal circuit court spokesperson provided a statement on behalf of Alstergren and Egan.

It said Alstergren was unable to comment on individual cases or judges.

“The Chief Judge, since his appointment in October 2017, has introduced substantial measures to monitor, assist and support judges to perform their duties,” it said.

“These include a more rigorous induction process for new judges, a formal and ongoing mentoring program and closer management. There are also mentoring and counselling opportunities with judges of superior courts or retired judges.

“These measures have been accompanied with the introduction of a Judicial Conduct Committee and related policies, national judicial education sessions, and additional support and training for new judges.”

The chief judge has a limited number of powers available to him in relation to managing judges, including counselling, mentoring and in exceptional circumstances, temporarily removing a judge from sitting.