Attorney-General George Brandis says it is difficult to recruit and retain some federal judges because they are not offered a pension, with some moving to state courts to ensure they have one when they retire.
Family lawyers and retired judge Giles Coakes have criticised the failure to replace Federal Circuit Court judges soon after they had retired last year, saying it has led to severe delays in custody battles, which often involved family violence victims. The Federal Circuit Court's Chief Judge John Pascoe last year urged the Attorney-General to make timely appointments so that the court - which handles most of Australia's family law cases - could handle its growing caseload.
Senator Brandis told a Senate estimates hearing on Tuesday that he had filled the court's two final vacancies in Melbourne and Sydney this week, pending Governor-General Sir Peter Cosgrove's approval.
Labor senator Jacinta Collins noted reports that the court's interim hearings were taking more than a year to resolve and that judges were declining to set future hearing dates until 2018.
Senator Brandis conceded the court system was under pressure: "I wish I had more judges. I wish the aggregate number of judges was greater but there are resource implications. I wish I could offer judges a pension like intermediary state and territory judges receive, so as to regularise the arrangements of this court."
The federal government is not required to pay Federal Circuit Court judges a pension. They are the only federal judicial officers excluded from receiving a pension after they retire under the Judges' Pension Act. Judges are appointed until they turn 70.
Retiring judges who have been on the bench for a decade can access a pension from the age of 60, which is worth about 60 per cent of their current salary. A retiring Federal Court judge would receive a pension of about $252,486 a year but a Federal Circuit Court would get no pension.
Senator Brandis said that the lack of pensions "presents problems in recruiting judges to that court (and) keeping judges on that court."
If Federal Circuit Court judges had a pension they may choose to retire when they fell ill "but because they don't some of them are not in a position to do so".
Some of the court's judges had moved to state courts in order to get the pension, he said.
He defended the delay, saying that more that more than 12 per cent of the Federal Circuit Court's judges were on sick leave and that even with all judges working, the court was "running at 85 per cent capacity."
The Family Court is still short one judge. Six Federal Circuit Court judges and five Family Court judges will reach retirement age in the next two years, including Chief Justice Diana Bryant.
Greens Senator Nick McKim asked why the Coalition did not pass laws to introduce pensions and raise the limit on the total number of judges to help "to clear the backlog of cases that is currently at shameful levels?"
Senator Brandis said there was "not a lot of money" in his portfolio, and that the Coalition had a self-imposed rule against spending new money without offsets in the same portfolio.
The government had made savings in some areas, including the legal aid budget, which Senator Brandis said he "didn't want to have to do frankly but it was necessary to do that to contribute to the task of budget repair".
Senator Brandis also told the hearing that the government would respond to the Productivity Commission's report on access to justice before the end of its term this year. The commission recommended in 2014 that the federal government add $120 million to legal assistance services each year to meet the growing demand for free legal help among disadvantaged Australians.
