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CHAPTER 5
Legal AID in Family law matters
Issues relating to Commonwealth priorities in family law
5.1 Since 1 July 1997, the Commonwealth has accepted responsibility for
providing legal aid funding for certain Commonwealth matters only. Schedule
2 to the Commonwealth's agreements with the states and territories is
headed `Commonwealth Priorities' and it defines these matters in the field
of family law as follows (in the version to apply from 1 July 1998):
Matters arising under the Family Law Act, the Child Support
(Assessment) Act and the Child Support (Registration and Collection)
Act limited to:
(a) separate representation of children;
(b) parenting plans and orders;
(c) location and recovery orders;
(d) other orders relating to children;
(e) injunctions relating to family violence;
(f) child support;
(g) child and spousal maintenance;
(h) property proceedings; and
(i) dissolution and nullity.
5.2 The document states that protecting the safety of a child or a spouse
who is at risk is to be accorded the highest priority in making grants
in family law matters. It provides that, as a matter of urgency, aid would
be granted for an interim order or injunction where a child's or applicant's
safety or welfare is at risk, there is an immediate risk of removal of
a child from Australia or to a remoter geographic region within Australia,
there is a need to preserve assets, or other exceptional circumstances
exist.
5.3 The issues relating to these priorities are discussed in the following
sections.
Property matters unrelated to any other priority matter
5.4 In their July 1997 form, the priorities governing family law matters
only allowed legal aid in relation to property orders if the property
issue was related to one or more of the other items listed as priorities.
Anecdotal evidence suggested that this forced people seeking legal aid
in order to resolve a dispute about the matrimonial home to link it, perhaps
artificially, to another priority matter such as a parenting order. [1]
5.5 Although Victoria Legal Aid advised the Committee that this had not
caused it any particular difficulties, [2] the
Committee notes that the list of priorities has been amended. As can be
seen above, it now simply lists `property orders', without any link to
other priorities being required.
5.6 However, the relevant guideline does introduce some restrictions
which in effect limit the cases which will be aided on a free-standing
basis to those involving the matrimonial home and assets from which deferred
benefits may be derived, such as superannuation funds. Other property
matters will still only be aided if assistance is being granted for other
family law matters, other than spouse maintenance.
Priority given to primary dispute resolution
5.7 The priorities state that under normal circumstances aid is not to
be granted until the parties have been separated for a sufficient period
of time to enable them to be sure that there are real issues in dispute
`the six week rule'. In addition, as far as practicable applicants for
legal assistance are required to use primary dispute resolution services
such as counselling and conferencing before any grant of legal assistance
is made for court proceedings.
5.8 The submission from the Women's Legal Resource Centre in New South
Wales indicated reservations about this emphasis on mediation rather than
litigation:
While this approach has proved to be cost effective for the LAC and may
resolve family law issues in some families, WLRC is concerned that the
pressure to resolve matters through Conferencing can lead to poor outcomes
for many women particularly those who are not aware of their legal entitlements
or have been victims of violence. [3]
5.9 The submission from the National Network of Women's Legal Services
in February 1998 was also critical:
In our view excessive weight is being given to primary dispute resolution
in considering applications for legal aid. Parties are being refused legal
aid on the basis that they `should resolve their dispute through avenues
other than litigation' (letter to an applicant's solicitor from ACT Legal
Aid Office, 15.9.97). This is despite the fact that as a rule and certainly
in most of the cases of which we are aware, the parties have already attempted
to resolve their dispute to the extent that that is possible before they
apply for legal aid. For them, litigation is a last resort but if legal
aid is refused many of these women are utterly disempowered at a crucial
stage in proceedings. It is probably one of the most common grounds for
refusing legal aid, especially in cases concerning children, while we
would argue that legal representation can be particularly important in
helping to achieve a resolution where there is conflict and bitterness
between the parties. [4]
5.10 The National Network also pointed out that primary dispute resolution
was inappropriate for women of non-English speaking backgrounds who may
be reluctant to talk to a complete stranger about issues arising from
separation, particularly if that stranger has no knowledge of that woman's
community or culture. [5]
5.11 The priorities document (in the version to apply from 1 July 1998)
does recognise that there are situations in which applicants should not
be directed to primary dispute resolution services. The document provides:
Ordinarily, primary dispute resolution is not appropriate where:
(i) there are current investigations or proceedings in relation to child
abuse; or
(ii) there is a current behaviour, including violence, intimidation,
control or coercion that jeopardises a party's safety or ability to effectively
negotiate; or
(iii) there is documentary or other clear evidence establishing the refusal
or unwillingness of the other party to attend; or
(iv) there are practical difficulties which cannot be overcome, such
as the geographical distance between the parties or the unavailability
of a dispute resolution service in the applicant's region.
5.12 The Committee agrees that the description of these situations could
usefully be modified to explicitly accommodate cases in which the language
and cultural factors make primary dispute resolution unlikely to be effective.
Recommendation 9
The Committee recommends that criteria setting out when recourse
to a primary dispute resolution service is not appropriate in family law
matters be amended to include situations in which there is no service
available that can accommodate any particular language and cultural barriers
faced by the legal aid applicant.
5.13 The Committee regards the more general concerns about the emphasis
on primary dispute resolution as stemming from the lack of adequate funding
of legal aid. As long as funds are so scarce, it is not unreasonable for
legal aid commissions to conserve them to the maximum extent by requiring
applicants to first try primary dispute resolution, even if the prospects
of success are far from certain.
Domestic violence issues
5.14 A major issue of concern is the effect of the new legal aid arrangements
on the capacity of the legal aid system to deal effectively and rapidly
with domestic violence issues.
Commonwealth compared to state and territories remedies
5.15 It was argued in evidence to the Committee that the previous funding
arrangements were more beneficial to women who were seeking assistance
in respect of domestic violence and related matters. Since there was no
separation of funding for Commonwealth and state/territory matters, Commonwealth
funding could be used by states and territories to assist people to make
applications for apprehended violence orders. The majority of these orders
were made under state or territory law.
5.16 For example, of the 3,644 legal aid approvals related to domestic
violence in 1995-1996, 5.27 per cent concerned Commonwealth matters; Commonwealth
matters constituted 2.76 per cent of the 3,442 cases in 1996-97. [6]
Another measure is the number of injunctions that are granted against
domestic violence. Of a total of 2,904 injunctions granted in 1996-97,
only 97 (3.34 per cent) were granted under the Family Law Act while 2,807
were granted under state/territory law. For the previous year, there were
3,149 injunctions granted, of which 193 (6.13 per cent) were under the
Family Law Act. [7]
5.17 It appears that the reason for the greater use of state/territory
law is that the state/territory processes had become more straightforward
and rapid, and were relatively inexpensive. In contrast, an application
to the Family Court was more costly and could take a longer period of
time. In such matters, time is often the most crucial factor.
5.18 In the context of legal aid agreements, domestic violence is a priority
area insofar as domestic violence is linked to matters within the jurisdiction
of the Family Court. One of the Commonwealth's listed priorities in family
law matters is `injunctions relating to family violence'. As noted in
paragraph 5.2 above, the priorities document also provides: `Protecting
the safety of a child or a spouse who is at risk is to be accorded the
highest priority in making grants of aid in Family Law'.
5.19 The guidelines do not contain any specific provisions relating to
this priority. However, domestic violence is recognised as a factor in
decisions about providing aid in relation to other priorities. In relation
to applications for granting and varying parenting orders the guidelines
provide that assistance may be granted where, amongst other things, primary
dispute resolution is inappropriate because there is a likelihood of violence
or abuse. In addition, one of the criteria for granting assistance to
obtain a discharge or variation of a parenting order is `the likelihood
of current or future violence or physical or mental harm to a child or
the applicant'. The guidelines in relation to separate representation
of children provide as one of the several conditions to be met, that the
Family Court has requested separate representation. Under the Family Court's
Re K guidelines, the Court will normally request separate representation
in cases involving allegations of child abuse and `in cases where there
is a background of serious family violence'. [8]
5.20 When the new arrangements were announced, there was objection to
the division of responsibilities and legal aid funding along Commonwealth
and state lines. The main reasons for this were:
- The Commonwealth would no longer give funds to the states for domestic
violence matters, which put the onus on states to fund these; but, if
the state did not give priority to domestic violence, there would be
limited funding available for taking action under Commonwealth law.
- In any event, as the Commonwealth processes were not seen as working
rapidly, the withdrawal of funding for state matters gave the message
that safety of women really was not a priority. This was noted by a
member of the Committee at an Estimates hearing:
the lasting concern I am sure … is that you have actually withdrawn
funding from an area which was the effective redress mechanism and the
Commonwealth does not have an adequate alternative to what people were
able to access in the past. [9]
5.21 Much of the discussion on the reduction in funding for domestic
violence matters noted that the distinction between state/territory and
Commonwealth issues was an unnecessary complication in matters such as
domestic violence. It introduced a complexity into situations which were
already difficult for people to cope with:
Priority in legal aid grants is given to the exigencies of defendants
and most defendants are men. Consequently, often victims of violence who
cannot pay for a private solicitor have no legal assistance for obtaining
an intervention order or dealing with the issues arising from an impending
separation. [10]
5.22 This was especially so for women of non-English speaking background,
particularly because funding for interpreters was also divided between
state and federal matters:
For our clients, that is extremely difficult because they have no comprehension
of the distinction between state and federal law – and, quite frankly,
they do not care. They come to us with one or the other or a combination
of the two. Then we are expected, without an interpreter, to sit down
and get enough information from them to find out what sort of a problem
it is. Then, if we identify that it is federal, either then or at some
later point in the case we are supposed to say, `Well, in that case we
cannot help you, unless you can pay a minimum of $114 per two-hour period
for an interpreter.' [11]
Other impacts of the new arrangements
5.23 Another principle in the new funding arrangements which affected
women in domestic violence situations was capping of funds for family
law cases. The general problems with capping are discussed later in this
Chapter. In relation to domestic violence cases, the Committee was told
that funding caps could be reached more quickly than in cases where this
element was absent.
The caps that have been set are certainly not enough to run matters in
court. I am specifically talking about those cases with the Domestic Violence
and Incest Resource Centre involving the more complex issues of domestic
violence and sexual assault. The limit is being reached before the matter
is going to court. [12]
5.24 It was further argued that capping actually encouraged other parties
to waste resources and then leave the female complainant with no funding
to complete a case in the Family Court. This was especially detrimental
in domestic violence cases where a woman might have to go through a mediation
or conciliation process because no funding was available for a court case,
or where funding for a case was not adequate to cover cross-examination
on domestic violence and similar matters. [13]
5.25 Witnesses also noted that if funding was not available from state
legal aid when a violence matter was being dealt with through a magistrate's
court along with family law matters, access to resources became more complex.
[14]
Need for legal assistance in domestic violence issues
5.26 Although legal assistance may not be necessary in obtaining an intervention
order, [15] it was argued that it was important
for women to have legal advice in domestic violence cases where longer
term solutions were required, such as safety and financial and access
provisions for children, and in family law matters even where violence
was not involved:
family law disputes often require the sorting out of twenty or thirty
years of grievances and exchanges. Further, situations can be made more
difficult because of the existence of a power imbalance: whether it be
because of physical, emotional or financial abuse, or an imbalance in
the parties' access to resources … women still need the services
of a solicitor to ensure they fully understand the consequences of agreements
they are entering into and best protect their rights. [16]
Other funding for domestic violence
5.27 It has been suggested that the Commonwealth has provided additional
funding for domestic violence issues through general programs not linked
to legal aid. [17] In this way, it is considered,
the effect of withdrawing funding for state matters is reduced. However,
some witnesses suggested that the amount of Commonwealth funding for other
domestic violence services was not adequate, or that important aspects
of legal aid education services would not be provided. [18]
5.28 It was also argued that the new legal aid arrangements sent the
wrong message to the community about domestic violence. The Women's Legal
Service in Brisbane said in October 1997 that it had noticed a definite
attitudinal shift in Legal Aid Queensland since the budget cuts. It argued:
Legal Aid is a key agency in the issue of violence against women and
children and the protection of children against abuse in Australia. The
way in which decisions are made affects the real extent of women's and
children's safety. The policies and practices which are in place influence
the real lives of ordinary citizens and send messages to the community
about the way in which the legal system (in the broadest sense) will respond
to violence against women and children. At present, the message is that
the system does not take such violence seriously. [19]
Conclusions and recommendations
5.29 The Committee notes that the Prime Minister, the Hon John Howard
MP, has, correctly, identified the issue of domestic violence as a national
priority. [20] His Government has taken some
initiatives to address this priority, such as the Partnerships Against
Domestic Violence initiative. However, in respect of legal aid, the Government
has sharply reduced its commitment by eliminating its funding for legal
assistance for actions taken under state/territory laws against domestic
violence. It has not explained how the victims of domestic violence are
expected to seek redress through the courts without, in most cases, the
assistance of a lawyer. It has not explained how reducing victims' access
to legal aid assists its strategy to combat domestic violence.
5.30 The Committee believes that the distinction between Commonwealth
and state/territory matters which has been imposed by the present Government
is not appropriate generally. It is particularly inappropriate in relation
to domestic violence. Adequate funding of legal assistance for actions
taken under state/territory law against domestic violence is essential
because the scope for prompt and effective action is markedly less available
under Commonwealth law.
5.31 The Committee considers that if the Commonwealth wishes to maintain
the inappropriate division between state/territory and Commonwealth matters,
it should comprehensively overhaul the domestic violence remedies available
under Commonwealth law. It should also then provide adequate funding to
ensure that victims of domestic violence have access to legal aid to pursue
those remedies.
Recommendation 10
The Committee recommends that the Government should:
- either provide an adequate level of funding for legal assistance for
actions taken under state/territory law against domestic violence;
- or enhance the remedies available under Commonwealth law against domestic
violence, and then ensure that adequate legal aid funding is provided
to enable victims of domestic violence to access those remedies.
- If it pursues the latter option, it should as an interim measure provide
adequate funding to the states/territories until the new Commonwealth
remedies are operating and legal aid funding is available.
Issues relating to the Commonwealth guidelines capping
Introduction
5.32 As described in Chapter 4, the general means and merits tests apply
to applicants for legal aid in family law matters. In addition, limits
on legal aid expenditure on any one matter apply, and are often referred
to as `caps'. Once the cap is reached, no further legal aid funding is
provided unless there is some discretion to exceed the cap in exceptional
circumstances. Caps are used in an attempt to spread limited legal aid
funds among as many matters as possible, and to encourage more efficient
conduct of the cases in which they apply.
5.33 In the 1990s, the various legal aid commissions had begun introducing
caps set at various levels and applying in varying circumstances. Some
of these applied to what have since been defined as Commonwealth family
law matters in the 1997 legal aid agreements.
5.34 For example, South Australia introduced a cap in 1991 set at $35,000
per party and separate child's representative, giving a maximum of $105,000
per case. In 1996 the amounts were reduced to $12,000 per party and $17,500
for a separate child's representative. This reduction was based on the
anticipated amount of funding available from the Commonwealth and the
anticipated extra demand resulting from the decision in Re K, which
the Commonwealth was not funding. [21]
5.35 Queensland did not introduce capping until December 1996. [22]
In New South Wales in 1996 a cap of $15,000 was introduced in family law
matters for each party where both parties were legally aided. [23]
In both states, budget concerns prompted the move.
5.36 The issue of capping was a major issue in submissions and evidence
relating to the guidelines on family law matters. The guidelines set out
limits on the amount which may be spent in any one matter. These limits,
in their 1 July 1997 form and applicable to matters commenced after
1 July 1997, are:
(1) a ceiling on party professional costs (including counsel, expert
reports and other disbursements) of $10,000; and
(ii) a ceiling on the child's representative's costs (including counsel,
expert reports and other disbursements) of $15,000.
A matter is defined to include any dispute involving the same parties
about the same or substantially the same issue.
Number of cases affected by caps
5.37 The Committee does not have comprehensive data on the impact of
caps. The Legal Services Commission of South Australia indicated in February
1998 that 57 grants of aid in family law cases and 12 grants of aid for
separate representation had reached the cap since 1 July 1997. [24]
However it advised that the extent of what it saw as the problems created
by capping was being masked to some extent by these figures. This was
because there were a large number of matters that were being artificially
compressed under the cap by people trying to preserve their legal aid
funds. [25] It also advised that it expected
`quite a rise in the number of cases' as more cases commenced after the
1 July 1997 cap levels came into operation flowed through the legal system.
[26]
5.38 The Statistical Yearbook produced by the Attorney-General's Department
for 1995-96 provides information on the costs of legally-aided family
matters referred out to private practitioners, as opposed to those dealt
with in-house. It does not distinguish between legal aid granted to parties
and that provided for the child's separate representation. Nor does it
distinguish those cases that go to trial from those that settle at an
earlier stage. The following table sets out data for 1995-96 for family
law matters. [27]
| legal aid per family law case |
no. of cases |
percent of total |
| less than $10,000 |
24,886 |
97.65% |
| $10,001 to $15,000 |
364 |
1.43% |
| $15,001 to $20,000 |
121 |
0.47% |
| $20,001 to $25,000 |
52 |
0.20% |
| over $25,001 |
63 |
0.28% |
| totals |
25,486 |
100% |
5.39 This data shows that shows that 600 (2.35 per cent) of the cases
referred out involved expenditure of more than $10,000. This gives a rough
approximation of the number of referred-out cases that might be affected
in a year by the Commonwealth caps. However, the Commonwealth expects
that the presence of the caps will alter the way potentially affected
cases are conducted. By conducting their cases in a more economical way,
some, perhaps many, of those who would otherwise exhaust their funding
may be able to bring their expenditure below the cap levels without compromising
the quality of the legal services provided. [28]
5.40 In the absence of adequate data, the Committee wishes to record
that it received many references to, and complaints about, cases in which
legal aid had been withdrawn because the cap had been reached. [29]
Transition problems with caps
5.41 The Committee noted in Chapter 1 that the anticipated impact of
the Commonwealth funding cuts to take effect from 1 July 1997 forced the
legal aid commissions to reduce their services in a variety of ways during
the 1996-97 year. This had a particularly harsh effect in Victoria, where
Victoria Legal Aid considered it necessary to impose caps in family law
matters with retrospective effect in the latter part of 1996. [30]
5.42 The Women's Legal Resource Group in Melbourne told the Committee
of the impact at the time that the cap took effect:
we had women ringing that week who were in court and it was retrospective
the very week that the cut was made all ready to go and they just had
nothing. The rug was pulled out from under their feet. They had to face
the choice of either going on unrepresented or settling the matter. [31]
5.43 The Domestic Violence and Incest Resource Centre advised the Committee
in February 1997 that it had evidence of women who found that they had
reached the cap and would not have any further legal representation. In
the context of domestic violence, this meant that they had to represent
themselves against their abuser. [32]
Case study
A client was assaulted, raped and tortured by her partner, who received
ten years' jail. She and her partner had five children, four of whom have
severe behavioural problems. The father wanted custody (in jail). A court
report suggests access/contact is a right of the children. Three weeks
prior to the final hearing on the matter, legal aid imposed a retrospective
ceiling imposed on mother and child's representation, therefore denying
them representation at a crucial time in their case. [33]
5.44 The Committee considers that impacts such as this are unacceptable.
That they occurred is further evidence that the Commonwealth did not properly
plan the transition to the new legal aid arrangements.
Benefits of caps
5.45 The Committee was told that the introduction of caps had brought
benefits. For example, the Managing Director of the Legal Aid Commission
of NSW, Mr Mike Cramsie, advised the Committee in February 1998:
The commission decided, nearly 12 months ago now, that it ought to introduce
caps on trials and on family law matters where both parties to the proceedings
were on legal aid. As a general strategy, the imposition of caps is a
proper way of controlling expenditure, so long as the cap is realistic.
In New South Wales the cap is realistic, by and large.
The other important thing I would say about caps is that they have an
influence beyond the financial control of the commissions. They ought
to influence, so far as is possible, the conduct of the whole justice
system. You would hope that other players in the conduct of the trial,
having regard to what financial cap had to be imposed, would have some
influence upon the length of the trial. We believe, from the experience
of introducing caps some time ago, that that has had a beneficial effect
on the length of trials it has shortened them. [34]
5.46 The President of the Australian Law Reform Commission, Mr Alan Rose,
told the Committee that the Commission's researches on capping had disclosed
problems that needed to be addressed. However the Commission considered
there were benefits:
Our general view … is that the caps are a good thing because they
seem to have been one device from recent times which has focused the attention
of the professions as well as the Legal Aid Commission and the courts
concerned on the need for effective prosecution of the matter and on coming
to grips with what are the real issues in dispute early in the matter
rather than simply going through the process. A lot of what I think has
literally wasted funding in the past has been the notion that one funded
a process rather than an outcome. To that extent, I think in all jurisdictions
we have had positive responses to the question: has this improved judicial
and other case management in the attention of their professional duties?
[35]
5.47 Chief Justice the Hon Alastair Nicholson of the Family Court advised
the Committee:
if you have no limit to your funding then you can do the most meticulous
job you like and you can run the cases carefully, almost to unnecessary
extremes. I have never regarded that as an appropriate situation. It is
not appropriate whether the person has money or not. I think a benefit
of some restriction has been that there has been less of that sort of
behaviour. [36]
Criticisms of caps
5.48 The Committee was told that the level at which the Commonwealth
caps were set was not based on any detailed analysis but was essentially
arbitrary. [37] The Victorian Bar Council told
the Committee: `The Bar has not seen any financial evidence demonstrating
that the imposition of such ceilings is necessary, or that it is an appropriate
way of achieving the legal aid budget or distributing the legal aid dollar'.
[38]
5.49 The Committee is not aware of any attempt to link the cap limits
with the concept, discussed at paragraph 4.49 above, of what the `ordinarily
prudent self-funding litigant' would choose to spend on their own litigation.
The Commonwealth in May 1998 announced a study comparing legal aid expenditure
in family law matters with that spent by `ordinarily prudent self-funding
litigants'. [39] The Committee regards the
belated undertaking of this study as confirming its view that the cap
levels imposed on 1 July 1997 were arbitrary.
5.50 The Committee received considerable evidence that the level at which
the caps had been set was too low. For example, the Federation of Community
Legal Centres informed the Committee:
This system is resulting in many clients experiencing a sense of hopelessness
as they feel that it is not worth embarking on a legal process when it
is likely that legal aid will be cut off leaving the person without legal
representation. The operation of the cap is often resulting in children
and women in being placed at risk. [40]
5.51 Mr Graham Russell of the Legal Services Commission of South Australia
said that `the level of the cap that has been imposed in family law matters
clearly is a budgetary thing; there is really no consideration as to its
effect on people, and whether it is pitched at an appropriate level'.
[41] Mr Russell also told the Committee: `I
think the difficulty we are having at the moment is the way that that
cap has been reduced down to such an extent that I think it is starting
to hit almost average cases that go through the Family Court'. [42]
5.52 This view was supported by a review of the scales of legal professional
fees in Federal jurisdictions which reported on 31 March 1998. [43]
The review, which was set up in May 1996 by the Attorney-General's Department,
carried out empirical research on actual charging practices of lawyers.
From this data it calculated average costs for matters of differing complexity
and for the different courts, including the Family Court. It found that
because legal aid `finances such a large proportion of cases before the
Family Court' the averages for that Court were lower than they would have
been if only cases not financed by legal aid were considered. [44]
The review recommended a new scale for the Court, based on the lower averages,
and intended to apply in 1998. The scale consists of lump-sum amounts
that depend on the characteristics of the case and the extent to which
it has progressed. It allows for three degrees of complexity, [45]
and provides as follows:
| Time of disposition |
Degree of complexity |
|
Direct |
Standard |
Complex |
| Disposed of between instructions and initial directions
hearing |
$1,035 |
$1,820 |
$2,730 |
| Disposed of after initial directions and up to conciliation
conference |
$1,200 |
$3,230 |
$4,845 |
| Disposed of after the conciliation conference and up
to the pre-hearing conference |
|
$4,915 |
$7,373 |
| Disposed of after the pre-hearing conference and up to
the start of trial |
|
$8,955 |
$13,435 |
| Disposed of during trial or at judgment |
$1,945 plus $1,445 for each day after the first |
$8,955 plus $1,445 for each day after the first |
$13,435 plus $1,445 for each day after the first |
5.53 The Committee acknowledges that the purpose of the review was not
to determine an appropriate level of legal aid funding for individual
family law cases. [46] However, the Committee
considers that the review's findings support the other evidence which
it received that the caps have been set at too low a level. Under the
recommended scales, a litigant in a standard case in the Family Court
would only be funded up to the end of the first day of the trial if the
$10,000 cap applied. [47] If the case was complex,
the legal aid funding would exceed the cap before the trail stage had
even been reached. The scales already make partial allowance for the fact
that legal aid pays at below the level prevailing in the private market
place. Even if a full allowance was made for this, the Committee considers
that the scales demonstrate the unjust results that may flow when the
current cap levels are applied. The scales also support the view that
the cap levels were chosen arbitrarily.
5.54 Another criticism that was made of caps was the differing levels
at which they had been set in family compared to criminal law matters
(discussed in the next Chapter). The Queensland Family Law Practitioners
Association argued:
Conceptually, the injustice is that it is hard to see why a Commonwealth
criminal defendant has a cap of $40,000 whereas a parent who is applying
for residence or contact with their children has a cap of $10,000.There
is no conceptual justification for that. [48]
5.55 Concerns have been expressed that under the low levels at which
the caps are set only a second-rate legal representation will be provided.
The Springvale Legal Service warned that the imposition of caps leads
to sub-standard service, which may lead to increased complaints against
lawyers despite the fact that they are trying to act in their clients'
best interests. This in turn may cause lawyers to no longer do legal aid
work. [49] For barristers, a particular concern
is that the case will run longer than predicted thereby exhausting the
cap in mid-trial and leaving them with an ethical (and possibly a legal)
obligation to complete the matter for no further fee. [50]
This possibility obviously can also create a reluctance to take on legal
aid cases where a cap applies.
5.56 A frequent criticism of caps is that they fail to take account of
the fact that the legally aided party does not have full control over
the course of litigation. [51] That party may,
despite their best efforts and those of their lawyers, reach the cap before
the matter comes on for trial. This leaves them unrepresented at what
is normally the most difficult part of the case. [52]
The effect of this may to render useless the legal aid funds spent on
the matter.
5.57 For example, the Legal Services Commission of South Australia advised
the Committee that because funding to the Family Court had been reduced,
cases were taking longer to come to trial and the capped amounts were
being used up more quickly. [53] Springvale
Legal Services instanced a case where two adjournments caused by the inadequate
presentation of the case by the opposing party caused the legally-aided
party's funding to reach the cap and be withdrawn two weeks before the
next court date. [54]
5.58 Because the opposing party will generally be aware that the cap
applies to their legally-aided opponent, the opportunity exists for tactics
to be used to exhaust the legal aid funding, with a view to forcing the
legally-aided party to settle on unfavourable terms. This of course can
apply in cases not involving legal aid, if there is an imbalance in the
financial resources of the parties. The Committee was told by Chief Justice
Nicholson that in family law matters such tactics are emerging:
One of the tactics that we are starting to see is bringing frivolous
applications where people are represented until their aid limit runs out.
You can make orders for costs until you are blue in the face but the person
usually has not got any money, so that does not act as any form of deterrent.
[55]
5.59 Caps pose a difficulty for the legally-aided party in deciding on
an appropriate litigation strategy. If they spend the resources on the
preliminaries, they may well increase the chances of an early settlement.
However, if this is not achieved, they may well not have enough funding
left to go to trial. Alternatively, conserving resources in the early
stages may increase the chances that the matter will not settle early,
and may go to full trial. [56] A similar issue
arises on whether or not to appoint a child's separate representative
early in the proceedings, and whether if appointed, the representative
should become active in the early stages.
5.60 The National Council for Single Mothers and Their Children drew
the Committee's attention to the lack of client understanding and control
over how capped funds are actually being spent:
So in the whole pre-trial manoeuvring, the taking of affidavits, the
giving of advice, what we find with our clients is that they often have
no control and no concept of how all that money is being spent. It is
certainly not a case of an informed, aware, empowered client directing
their legal counsel in terms of what they wish to happen in the course
of their case. It happens to them, and they do not know how or why. [57]
5.61 The Committee notes a proposal that has been made to address the
issue of conserving funds to ensure that some remain should the matter
go to trial. Prior to the Commonwealth's guidelines coming into force,
Victoria Legal Aid imposed a fee ceiling of $2,500 for work undertaken
by a child's separate representative prior to the court hearing. The aim
was to ensure that further funding within the overall cap was available
at the trial stage. The Commonwealth's guidelines contain no equivalent
provision. The legal aid commissions collectively have asked the Commonwealth
to consider amending the guidelines to include such a provision. [58]
However, they noted that they had differing views on the appropriate cap
to apply to pre-trial work.
5.62 The way caps operate in practice is said to further disadvantage
those already disadvantaged. For example, the Domestic Violence and Resource
Centre told the Committee:
Women from a non-English speaking background have access to interpreters
for the legal process, and that is being paid over and above the legal
capping. However, when they are legally aided, the time of preparation
is much greater when going into a solicitor's office because of the need
for translation. Therefore, the costs are increased significantly. This
uses up the women's aid at a much quicker rate. It is also the same for
people with disabilities, such as the visually impaired and the hearing
impaired et cetera. [59]
5.63 The Committee also notes that caps are discriminatory in another
sense. Because the cap levels are uniform across the country, they do
not take into account different cost structures in different jurisdictions.
[60] Thus they buy less assistance in an expensive
jurisdiction like Western Australia than a significantly cheaper one like
Tasmania. [61] Moreover, the caps are not indexed
to cater for either inflation generally or increases in the Family Court
scale of costs.
Cap on amount for child's special representative
5.64 The cap of $15,000 on the amount of legal aid that may be granted
for a child's representation attracted specific criticisms, beyond those
directed at capping generally. As the Australian Law Reform Commission's
submission put it, `funding caps for representation of children are particularly
problematic'. [62] The Victorian Bar Council
said that the caps did not comply with the guidelines set down by the
Family Court in its decision in Re K. [63]
The Legal Services Commission of South Australia pointed out the serious
consequences of the loss of the special representation:
Once child representation ceases, the Court no longer has the benefit
of the evidence that would have been supplied by the child representative
as to the child(ren)'s position and interest, nor the moderating influence
of the child representative on the dispute between the parents
The Court is then wholly reliant on the parents to provide this - a paradox
because the Court will only have appointed a child representative in cases
where the child(ren)'s interests cannot be adequately represented to the
Court through the evidence of the parents.
… In failing to provide the funds needed to resource child representative
appointments made under Re K criteria, the Commonwealth appears
to be saying that the Court must do without a child representative and
do its best to glean the interests of the child(ren) from the evidence,
however inadequate, called by the parents.
… when the cap cuts in, the child representative ceases to play
a role in the resolution of the dispute. The court can no longer inform
itself in the way contemplated in Section 68L of the Family Law Act
(which requires that in any decision made by the Court, the child(ren)'s
interests are paramount). The legal and social implications of a decision
made with this defect are wide-ranging, affecting not only the child(ren)
concerned, and his or her family, but the community at large. [64]
5.65 The Committee was told that it was possible in some cases with the
agreement of the Court to segregate the issues in a case so that the special
representative would not be required to attend throughout, thereby enabling
the cost to remain within the cap. [65] However,
the Bar Association of Queensland advised that in practice there would
be few cases where this was feasible: in addition, factors such as credibility
and reliability of witnesses may transcend the separate issues. [66]
Discretion to exceed caps
5.66 Evidence to the Committee pointed to a need for some means of allowing
the cap to be exceeded in complex cases. For example, the Federation of
Community Legal Centres in Victoria argued:
It is important to note that if a parties' matter has exceeded the cap
it is often because the case is complex. Such complex cases, whilst not
the norm, do nonetheless arise and, due to their complexity, the parties
and the court necessarily require legal representation to be involved.
Further, due to their complexity these cases are the least likely to attract
pro bono assistance. [67]
5.67 The Committee was told that there is a difference of views amongst
the legal aid commissions on whether they should have a discretion to
permit the cap to be exceeded in family law matters. Under the 1 July
1997 agreements, all but two of commissions have this discretion. Only
those in South Australia and Victoria do not. [68]
The Committee was advised by the Attorney-General's Department on the
reason for this:
when we did the negotiations for the agreements, Victoria was very keen
that … there not be a discretion. South Australia also was very keen
that there not be a discretion. The other jurisdictions were prepared
to be more flexible, and that is why two jurisdictions do not have discretion
and the rest of them do. [69]
5.68 Mr Cornall, the Managing Director of Victoria Legal Aid, explained
to the Committee why his organisation did not believe it is appropriate
to allow caps to be exceeded through exercise of a discretion:
there are two reasons for that. First, if you only look at an individual
case, practitioners will, in many instances, argue that this is a special
case deserving of special consideration. The second is that when you introduce
any discretionary decision within the grant of aid process, that decision
can be reviewed by a legal aid review committee and overturned. In our
view that will lead, firstly, to inconsistent decision making and, secondly,
we will not achieve the budgetary savings that we have to achieve by this
process of fee ceilings. [70]
5.69 The Bar Association of Queensland identified what it regarded as
problems with the availability of a discretion. One was apparent absence
of criteria on which the discretion would be exercised. [71]
Another was the timing of its exercise:
it is, in our view, essentially unsatisfactory if that decision is not
being made, for example, until the third day of a trial and then only
because the cap has actually been met at that time when the existence
of the cap and the restrictions of it have been known from a very early
stage. [72]
5.70 A third issue identified by the Association was that because capping
was introduced to meet budget constraints, it cannot be frequently exercised
without overspending the commission's budget: `Capping is about budgetary
restrictions and so their capacity to exercise that discretion is itself
presumably very limited'. [73] Likewise, the
NSW Legal Aid Commission advised the Committee: `there is a limit to how
often the cap can be exceeded before the funding is put under pressure'.
[74]
5.71 The view in favour of discretion was put to the Committee by Mr
John Hodgins, the Chief Executive Officer of Legal Aid Queensland, who
described how he dealt with cases in which the cap is an issue:
The family law capping cases come to me, and I have handled approximately
eight cases to date. I must admit that in the initial phase I had considerable
difficulty in trying to work out some principles in relation to capping.
I have now come to the view that the purpose of capping is to restrain
the cost of trials and that figures of $ 10,000 to $15,000 are guides,
not absolutes. That is the approach I am now applying. I think the system
can work a lot better. There are some cases you simply have to fund. You
have to go over the cap in the interests of justice, but with others you
can put the capping bar on and I find the cases do resolve. If you apply
it on the principle that the purpose of capping is to try to restrain
the costs and length of the trial, then it can work. If you apply it as
an absolute bar, I think it is completely unworkable. [75]
5.72 The Chairperson of Legal Aid Queensland, Mr Michael Baumann, told
the Committee that, unlike the position in some other states, capping
in family law matters had not created significant problems in Queensland.
He said that his Commission had a good understanding with private practitioners
as well as the Family Court about the resources that are available: `I
think there is at least a degree of evidence that practitioners who are
aware of that try to meet the needs of the client and adjust their client's
case within the time limits that funding will permit'. [76]
5.73 However, Mr Hodgins noted that the resource constraints on the Family
Court meant that there was a large backlog of family law cases in Queensland.
Capping did not apply retrospectively, either in the state scheme which
began on 1 December 1996 or in the Commonwealth scheme which began
on 1 July 1997. The Committee was told that most of the matters for which
legal aid was granted since then will not come on for trial until later
in 1998. [77] Mr Hodgins acknowledged that
the cases now in the pipeline would present budget problems for the Commission
in the future. But for the moment it was managing. [78]
The Family Law Practitioners Association advised the Committee that, due
to the backlog, it was premature to say that capping in family law matters
was operating reasonably well in Queensland. [79]
5.74 The Committee notes that in late 1997 Mr Robert Cornall of Victoria
Legal Aid identified a possible compromise between the present positions
of having a rigid cap in family law matters and having a discretion to
exceed the cap in some, ill-defined, circumstances. Under this, the discretion
would be given to the Family Court. However, it would be limited to allowing
a further grant sufficient to fund one further day's hearing before the
Court. [80]
5.75 The criticisms of the rigidity of capping exposed by the evidence
to the Committee appear to have had some effect. The Committee notes that
the revised guidelines to apply from 1 July 1998 incorporate a limited
degree of discretion. It appears that there are two variants on this point.
The one that applies in those states which prefer non-discretionary caps
(Victoria and South Australia) provides that if it appears likely that
the cap will be exceeded the case should be handled in-house wherever
possible. Moreover, in exceptional circumstances, if it is not possible
to limit costs within the caps and the matter cannot be handled in-house,
the Commission may extend the grant of legal assistance by up to a further
$2,000.
5.76 The Committee welcomes these changes but considers that they will
have only a limited impact. In effect, for cases which cannot be handled
in-house, the cap level is merely moved to a point $2,000 higher than
the initial cap.
5.77 The variant in the agreements that, it seems, will apply in the
other jurisdictions contains provisions similar to those which currently
apply to all jurisdictions in relation to assistance for expensive criminal
cases. As they apply to family law matters the provisions require that
:
In exceptional circumstances, if it is not possible to limit costs within
the amounts set out above and the matter cannot be handled in-house, alternative
means of funding must be considered: for example, use of retained counsel
or negotiation of a fee package by the Commission to enable the matter
to be handled by the private profession. The package should in all cases
be subject to a strict limit on costs which has been negotiated with the
service provider. The Commission may extend the grant of legal assistance
by an amount determined by the Chief Executive Officer or his or her delegate.
One factor that may be considered is advice from the Family Court about
the length of time required for the hearing of the matter. The Chief Executive
Officer or his or her delegate is responsible for ensuring that costs
are managed within the limit set. [81]
5.78 Accompanying these changes is a new requirement for the legal aid
commissions to provide a quarterly report to the Commonwealth advising
of cases in which the actual net costs and/or commitment exceed the caps.
5.79 While the Committee believes that this variant has the potential
to produce more just outcomes than the variant to apply in Victoria and
South Australia, it is not free from problems. The Commonwealth is apparently
not prepared to acknowledge in the level of funding it provides that expensive
cases do justifiably occur. By forcing the states and territories to pay
for discretions to exceed the cap from their already inadequate funding,
any exercise of the discretion becomes an exercise in robbing Peter to
pay Paul. The applicant in the expensive case may benefit, but at the
expense of other equally meritorious applicants. No amount of juggling
with discretions and cap levels will overcome this sort of dilemma. Only
the provision of an adequate level of funding can do so.
Amendments to the definition of `matter'
5.80 In the guidelines of 1 July 1997 a matter is defined to include
any dispute involving the same parties about the same or substantially
the same issue.
5.81 This broad definition was seen as harsh, given the episodic nature
of many of the cases that actually go before the Family Court. Unlike
most criminal law cases which are one-off events for the parties, there
may be a need in family law matters to return to the Court several times
over the years as the circumstances of the parties and their children
change, or the party not receiving legal aid decides to reopen matters
or behave as a vexatious litigant. [82] The
definition created obvious difficulties of trying to manage within the
cap without necessarily having much basis for predicting what future calls
are likely to be made on the amount.
Case study
The mother was severely abused by the father, to such an extent that
her every-day functioning as a person was affected. The father was serving
a sentence of imprisonment as a result of this abuse. The mother's funding
ran out. She was then in the position of having to face the Judge and
the Court alone in the presence of the man who had abused her and of whom
she was terrified. When the Judge asked, in front of the father, if she
would allow the father to have telephone and letter contact with the very
young child she not surprisingly gave a positive answer. Fortunately in
this case there was a child representative present who was able to assist
in making it clear that such contact would not be in the child's interest.
What will happen in this case if the guidelines continue as they are,
when in a few years the father is released from gaol? There will then
be no funding for the child representative either, as that has now reached
its cap. The issue of who will protect the child becomes central in such
circumstances. [83]
5.82 The revisions to the guidelines to apply from 1 July 1998 include
two changes that go some way to addressing this problem. First, they now
recognise that circumstances may alter materially. The new version of
the guideline provides:
A matter includes any dispute involving the same parties about the same
or substantially the same issue, where there has not been a material change
in circumstances or where any such change would not materially affect
existing orders.
5.83 In addition, the amended guidelines treat proceedings to enforce
final orders of the Family Court as separate `matters'. Assistance in
such proceedings is limited to $2,000, and there is a discretion to exceed
this limit in the same way as for other caps. This helps overcome the
situation where the cap had been reached at the conclusion of proceedings
in which the final order was originally granted, thereby leaving the person
with no legal aid to overcome difficulties having the order enforced.
5.84 It remains to be seen whether these amendments will produce sufficient
flexibility to accommodate the episodic nature of family law matters.
Committee's conclusions on capping
5.85 Some recommended that the cap on family law matters be removed.
[84] The Committee does not agree. The Committee
believes that governments should provide more funding for legal aid. If
adequate funding is provided, it may be possible to eliminate capping.
However, with the current lack of adequate funding, the Committee is of
the view that devices that lead to more efficient use of that funding
cannot be ignored, despite their attendant problems. While there is a
lack of detailed study and pertinent data, the Committee considers that
there is some anecdotal evidence to show that capping may help to bring
about more efficient management of their cases by legally-aided parties
and their lawyers.
5.86 However, the Committee does not believe that caps should be blindly
imposed, without any attempt to address the problems that they cause.
In order to do this, something needs to be done to remedy the present
lack of adequate information on how to manage the problems caused by capping
from the perspective of the clients, the legal profession and the courts.
On present information, the Committee is unable, for example, to say whether
some of the cap levels ought to be raised.
5.87 The Committee recognises the force of the arguments for not having
rigid caps, but instead allowing a discretion to exceed them in exceptional
circumstances. At the same time, it acknowledges the view that budget
problems will arise at the legal aid commissions if a discretion exists
and is exercised with any frequency. To some extent, this merely reinforces
the Committee's view that more funding is needed for legal aid. But until
data is available showing how often the cap is reached and in what types
of circumstances, the Committee does not consider it would be prudent
to make a firm recommendation on the introduction of greater discretion.
To provide an accurate picture, the data would need to show how many cases
had been run in a sub-standard way in order to remain under the cap, as
well as the number of cases that actually reached the cap.
5.88 The President of the Australian Law Reform Commission, Mr Alan Rose,
told the Committee of the need to monitor the operation of capping nationally
with a view to adjusting cap levels either up or down in the light of
practical experience. He added: `I am not convinced that that experience
nationally is being captured and can be made use of effectively …'.
[85]
5.89 The Committee agrees with this view.
Recommendation 11
Accordingly, the Committee recommends that the Government should
act to ensure that the necessary data on the operation of the caps in
its legal aid guidelines is collected, analysed, published and acted upon,
so as to ensure that capping does not deny justice in particular cases.
Other issues relating to the Commonwealth guidelines
Separate representation for children
5.90 The significance of a lack of separate representation in cases where
it is warranted was noted above (see paragraph 5.64). The Committee notes
with serious concern that there are cases in which the Family Court believes
separate representation is necessary but which fall outside the guidelines.
Chief Justice Nicholson told the Committee of a plan in Victoria to fast-track
the Court's dealing with matters in which child abuse is alleged by one
of the parties.
We want a child representative appointed right at the beginning when
the issue arises. We want that person to obtain reports. In effect, we
are fast- tracking these cases through the system. None of these cases
would comply with the Victoria Legal Aid guidelines … [and VLA] replied,
saying … that it was outside guidelines and that they did not have
any discretion in the matter. Again, I am critical of the fact that they
should not have any discretion. [86]
5.91 Requests for separate representation for a child frequently arise
from the Family Court itself. At present there are differing approaches
by the legal aid commissions as to whether they simply accept the Court's
assessment that separate representation is warranted or do their own evaluation.
[87] The guideline covering the provision of
aid for a separate representative for a child in family law matters begins
by stating:
In no circumstances should this Guideline be interpreted to indicate
that there is an obligation on the Commission to make a grant of legal
assistance because a court has ordered that a child's representative be
appointed.
5.92 The guideline then provides that such assistance may be granted
if a court requests and if the legal aid commission `decides that it is
reasonable to provide such representation' (emphasis added). The Legal
Services Commission of South Australia informed the Committee that there
have been cases in which it could not give aid for separate representation
in court, even though the Court had requested it, because either the funding
had already been used up in the previous proceedings or the cap had been
reached before the case could be finished. [88]
5.93 The Committee was advised that the Family Court has asserted that
it has the power to order that Victoria Legal Aid, in effect, provide
funding for a separate representative to order the provision of assistance.
If Victoria Legal Aid were to comply with such an order, it would in its
view be in breach of the legal aid agreement with the Commonwealth. [89]
The issue whether the Family Court has this power effectively to order
commissions to provide legal aid was argued before the High Court in February,
and a decision is awaited. [90]
5.94 Because of the pending High Court decision, the Committee has not
addressed in this report the policy decision whether the Family Court
or the Commonwealth through the guidelines addressed to the legal aid
commissions should have the final say on whether legal aid should be provided
in any given case. The Committee remarks that if the Family Court is found
to have the power to order the provision of legal aid, this may have implications
for the ability of the legal aid commissions to manage their budgets.
Cost recovery for special representation
5.95 The guidelines contain provisions requiring a legal aid commission
to attempt to obtain payment from all parties in a matter who are not
legally-aided for the cost of providing a separate representative for
the child. In its 1 July 1997 form, the amount any party had to pay was
determined by dividing the total cost by the number of parties.
5.96 The Committee was told that one of the issues raised by this guideline
was that levying each parent fifty-fifty assumes that they are equally
situated financially and equally able to bear the burden of the levy.
[91]
5.97 The Committee notes that the version of the guideline to apply from
1 July 1998 gives flexibility in this regard. It provides that for
the commission to seek payment from each of the parties in such amount
or amounts and in such manner as the Commission determines, having regard
to capacity to pay.
Discharge or amendment of parenting orders
5.98 The National Council of Single Mothers and Their Children argued
in December 1997 for an amendment of the guideline dealing with the availability
of aid to seek a discharge or amendment of a parenting order. [92]
The 1 July 1997 version of the relevant guideline required, amongst other
things, that there be `special circumstances which suggest that the application
is likely to be successful, for example, evidence of violence or physical
or mental harm to the applicant and/or a child'. The National Council
argued that this requirement for `evidence' was too stringent, given the
difficulty of obtaining legally sustainable evidence in cases where child
sexual assault is alleged. [93] It recommended
that `evidence' be replaced by `allegations'.
5.99 The Committee notes that the version of the guidelines to apply
from 1 July 1998 has dropped the term `evidence' and now refers to `the
likelihood of current or future violence or physical or mental harm to
a child or the applicant'.
Property orders limits on value of the property
5.100 Under the guidelines (in the 1 July 1998 version) relating to property
issues the applicant is required to provide evidence that she or he is
likely to retain the family home and cannot borrow sufficient funds both
to buy the other party's interest in the family home and pay the anticipated
legal costs of the proceedings. The guidelines also contain limits on
the property concerned:
Legal assistance for representation is limited to proceedings where the
equity of the matrimonial property in dispute is valued at less than $20,000
and such assistance will usually only be for proceedings in the magistrates'
court (where that is the ordinarily appropriate forum).
Where the equity in the matrimonial property in dispute is less than
$10,000 assistance may only be granted for negotiations or other primary
dispute resolution processes.
5.101 The submission from the Women's Legal Resource Centre in New South
Wales criticised these limitations:
Given the significant negative impact that divorce and separation have
on women's and children's economic position, providing legal aid to ensure
that women obtain a fair and equitable division of property should be
acknowledged as being the public interest. The amounts nominated by LAC
in NSW of $10,000 and $20,000 do not adequately reflect the needs of women
seeking financial assistance to enforce property entitlements. [94]
Lack of uniform application of Re K guidelines
5.102 In its decision in Re K, the Full Court of the Family Court
set out guidelines in which it identified thirteen situations in which
separate legal representation for a child might be warranted in proceedings
in the Family Court. [95] As noted in Chapter
1, the Legal Aid Commission of Western Australia continues to grant aid
in respect of only two of the thirteen categories. [96]
These are cases involving allegations of physical, sexual or emotional
abuse of children, and cases in which it is alleged that the person having
contact with the child is so anti-social as to seriously impinge on the
child's welfare. [97]
5.103 The Committee considers that this lack of uniformity is unacceptable.
The guidelines should be applied in a uniform way throughout Australia.
The guidelines in the Re K decision came about as a result of submissions
made by the then Commonwealth Government. If the current Government disagrees
with the content of the guidelines, it should say so. It should define
the types of matters in which it is prepared to fund separate representation,
by legislation if necessary. It should then ensure that its amended guidelines
are applied in a uniform way.
Footnotes
[1] Transcript of Evidence, Senator Cooney,
p. 1408; Submission No. 85A, National Network of Women's Legal
Services, pp. 22-3.
[2] Transcript of Evidence, Victoria
Legal Aid, pp. 1408-9.
[3] Submission No. 187, Women's Legal
Resource Centre (NSW), p. 6.
[4] Submission No. 85A, National Network
of Women's Legal Services, p. 9.
[5] Submission No. 85A, National Network
of Women's Legal Services, p. 13.
[6] Senate Legal and Constitutional Legislation
Committee, Examination of Additional Estimates 1997-98: Additional
Information, vol. 2, March 1998, p. 315.
[7] Senate Legal and Constitutional Legislation
Committee, Examination of Additional Estimates 1997-98: Additional
Information, vol. 4, June 1998, pp. 466-7. In providing this data,
the Attorney-General's Department advised: `It should be noted that injunctions
for matters arising under State law are not restricted to orders relating
to domestic violence. While other matters have been excluded from the
data where they could be identified the information on State law injunctions
may include some injunctions which did not arise as a result of domestic
violence.'
[8] Re K (1994) 117 FLR 63 at pp. 82,
83.
[9] Senate Legal and Constitutional Legislation
Committee, Estimates Hearings, Transcript of Evidence, 10 June
1997, Senator Bolkus, p. 96.
[10] Submission No. 109A, Women's Legal
Resource Group Inc, p. 1.
[11] Transcript of Evidence, Campbelltown
Legal Centre, p. 1374.
[12] Transcript of Evidence, Domestic
Violence and Incest Resource Centre, p. 1467.
[13] Submission No. 109A, Women's Legal
Resource Group Inc, p. 3.
[14] Transcript of Evidence, Domestic
Violence and Incest Resource Centre, p. 1471.
[15] However, it was also stated that in Victoria
only 20% of intervention orders were brought by police (Transcript
of Evidence, Domestic Violence and Incest Resource Centre, p. 1472),
the remainder presumably being brought by individuals themselves or with
some legal assistance.
[16] Submission No. 109A, Women's Legal
Resource Group Inc, pp. 2, 3.
[17] See for example, the funding provided
for the NCAVAC/DEETYA research: Senate Legal and Constitutional Legislation
Committee, Estimates Hearings, Transcript of Evidence, 13 November
1997, Attorney-General's Department, p. 173.
[18] Transcript of Evidence, Federation
of Community Legal Centres (WA), p. 1542: concern was expressed that education
services would disappear if the domestic violence unit became a stand-alone
litigation unit.
[19] Incorporated into Submission No. 85A,
National Network of Women's Legal Services, p. 6.
[20] See for example his address at the launch
of the Business Against Domestic Violence initiative, Melbourne, 12 November
1997, where he said of the initiative (printed text, p. 4): In conclusion,
can I say again how very personally committed I am to this proposal. Governments
have more to do than simply worry about the bottom line of the budget,
important though that is. They have more to do than simply worry about
the strengths of the economic foundations of society, important though
those foundations be. Governments are also rightly concerned about the
values of a community. Governments are rightly concerned about the victims
of violence. Governments are rightly concerned to give a lead, to set
an example in providing protection to those who are in domestically vulnerable
situations.
[21] Submission No. 44C, Legal Services
Commission of SA, pp. 5-6.
[22] Transcript of Evidence, Legal Aid
Queensland, p. 1757.
[23] Legal Aid New South Wales, Media Release,
10 November 1996, `Legal Aid Funding Cuts'. Reductions in existing caps
on criminal law matters were announced at the same time.
[24] Submission No.44C, Legal Services
Commission of SA, p. 6. It appears that many of these matters were commenced
before 1 July 1997 at a time when the state cap applied: see Transcript
of Evidence, Legal Services Commission of SA, p. 1603.
[25] Transcript of Evidence, Legal Services
Commission of SA, p. 1590.
[26] Transcript of Evidence, Legal Services
Commission of SA, p. 1590.
[27] Compiled from data in Attorney-General's
Department, Legal Aid in Australia: 1995-96 Statistical Yearbook,
July 1997, Table 12.
[28] Senate Legal and Constitutional Legislation
Committee, Estimates Hearings, Transcript of Evidence (26 February
1998), Attorney-General's Department, pp. 36-7.
[29] See for example, Submission No. 60A,
National Council of Single Mothers and Their Children, pp. 1-2; Submission
No. 85A, National Network of Women's Legal Services, pp. 13, 17; Submission
No. 101B, Springvale Legal Service, p. 2; Submission No. 186,
Geelong Community Legal Service, p. 1; Transcript of Evidence,
Federation of Community Legal Centres, p. 1449; Federation of Community
Legal Centres (WA), p. 1536.
[30] The circumstances are set out in the judgment
of Nicholson CJ in In the marriage of S (1997) 22 Family Law
Reports 112, at pp. 118-19. Under the changes, in relation to matters
then current, the parties would be limited to $15,000 funding provided
that, if they had already exceeded $14,000, they would be granted another
$1,000 to bring the matter to a conclusion.
[31] Transcript of Evidence, Women's
Legal Resource Group, p. 514. See also Submission No. 85A, National
Network of Women's Legal Services, p. 13 (women in the middle of complicated
courts cases affected).
[32] Submission No. 147, Domestic Violence
and Incest Resource Centre, p. 2.
[33] Submission No. 178, Federation
of Community Legal Centres, p. 12.
[34] Transcript of Evidence, Legal Aid
Commission of NSW, p. 1720.
[35] Transcript of Evidence, Australian
Law Reform Commission, p. 1810.
[36] Transcript of Evidence, Family
Court of Australia, p. 1642. See also `Not all bad news for families',
Law Institute Journal, vol. 72(3), March 1998, p. 12 quoting a
family law practitioner saying that he can often use the presence of a
cap to force some common sense into the parents and resolve a dispute.
[37] Submission No. 44C, Legal Services
Commission of SA, p. 6.
[38] Submission No.157A, Victorian Bar
Council, p. 16.
[39] See para. 4.53 above for further details.
[40] Submission No. 178, Federation
of Community Legal Centres (Vic), p. 9.
[41] Transcript of Evidence, Legal Services
Commission of SA, p. 1590.
[42] Transcript of Evidence, Legal Services
Commission of SA, p. 1590. See also Transcript of Evidence, Australian
Law Reform Commission, p. 1804 (`… caps in some cases are set too
low'); Submission No. 126A, Law Council of Australia, para. 2.3.
[43] Attorney-General's Department, Report
of the Review of Scales of Legal Professional Fees in Federal Jurisdictions,
31 March 1998.
[44] Attorney-General's Department, Report
of the Review of Scales of Legal Professional Fees in Federal Jurisdictions,
31 March 1998, p. 30. In one calculation, involving a three-day trial,
the average cost to the client was $17,625, based on all cases in the
sample. But if the cases financed by legal aid were excluded, the average
cost rose to $20,715.
[45] The report (p. 23) defines the three levels
as follows: direct cases involve a trial of a day or less and a fast-tracking
towards the resolution of certain narrowly-defined issues; standard cases
follow all steps laid down in the rules and a trial of two to six days;
and complex cases are judge managed as seems most appropriate for the
particular case.
[46] The report (p. 2) notes that its proposed
scales were designed with only two purposes in mind: to determine the
amount that a client should pay a solicitor if they have failed to enter
into an enforceable arrangement; and to determine the amount that a party
must pay if the court makes an award that one party pay the costs of the
other. The report also states (p. 21): The new scales should not be used
for any other purposes. For example, they should not be used by legal
aid to determine rates of pay; they should not be used by the courts to
determine the reasonableness of fee agreements entered into by solicitors
and their clients; nor should they be used by solicitors as a guide to
setting prices.
[47] The review at one point (p. 30) assumed
that the average length of a trial was three days.
[48] Transcript of Evidence, Family
Law Practitioners Association, p. 1779. See also Transcript of Evidence,
National Council for Single Mothers and Their Children, p. 1620.
[49] Submission No. 101B, Springvale
Legal Service, p. 4.
[50] Transcript of Evidence, Bar Association
of Queensland, p. 1796. See also Transcript of Evidence, Legal
Aid Commission of NSW, p. 1721 (rules of court in NSW which require the
barrister to continue to act).
[51] Transcript of Evidence, Law Society
of SA, p. 731; Welfare Rights and Legal Centre (ACT), p, 917; Law Council
of Australia, pp. 1318-19.
[52] Transcript of Evidence, Law Society
of SA, p. 1568.
[53] Submission No. 44C, Legal Services
Commission of SA, p. 6. See also Submission No. 108B, Australian
Law Reform Commission, p. 8.
[54] Submission No. 101B, Springvale
Legal Service, p. 2.
[55] Transcript of Evidence, Family
Court of Australia, p. 1643. See also Transcript of Evidence, Women's
Legal Resource Group, pp. 515, 1468; National Women's Justice Coalition,
p. 873; Submission No. 101A, Springvale Legal Service, p. 2.
[56] These considerations are not unique to
legally-aided cases involving a cap: see the general discussion in Transcript
of Evidence, Bar Association of Queensland, p. 1797-8.
[57] Transcript of Evidence, National
Council for Single Mothers and Their Children, p. 1621. See also the Council's
Submission No. 60A, p. 3.
[58] Letter from Victoria Legal Aid on behalf
of all the Legal Aid Commissions to Mr N Reaburn, Attorney-General's Department,
22 December 1997, p. 3.
[59] Transcript of Evidence, Domestic
Violence and Resource Centre, p. 1469. See also Transcript of Evidence,
Association of Non-English Speaking Background Women of Australia, pp.
517, 518; Submission No. 108B, Australian Law Reform Commission,
p. 8: `… cases requiring interpreter services reach the cap more
quickly, resulting in discrimination against people from non-English speaking
backgrounds. Similar problems may arise for people with other specialised
needs, such as people with a disability and Aboriginal and Torres Strait
Islander people.'
[60] Submission No. 35C, Victoria Legal
Aid, Attachment, p. 4.
[61] See Legal Aid Commission of Tasmania,
Annual Report 1996, p. 8 for a chart showing the comparative `average
cost per case' for the various jurisdictions in various types of matters.
[62] Submission No. 108B, Australian
Law Reform Commission, p. 6.
[63] Submission No. 157A, Victorian
Bar Council, p. 7.
[64] Submission No. 44C, Legal Services
Commission of SA, pp. 8-9.
[65] Transcript of Evidence, Legal Services
Commission of SA, pp. 1602-3.
[66] Transcript of Evidence, Bar Association
of Queensland, p. 1796.
[67] Submission No. 178, Federation
of Community Legal Centres (Vic), pp. 9-10.
[68] Transcript of Evidence, Victoria
Legal Aid, p. 1408; Legal Services Commission of SA, p. 1603; Attorney-General's
Department, p. 1825.
[69] Transcript of Evidence, Attorney-General's
Department, p. 1825. For a slightly different view on the Commonwealth's
position on rigidity versus discretion, see Transcript of Evidence,
Legal Aid Queensland, p. 1758: `We have resisted the approach from the
Commonwealth to have a rigid cap. We have debated whether or not there
should be discretion in the CEO. We are of the view that there should
be discretion.'
[70] Transcript of Evidence, Victoria
Legal Aid, p. 431; and see also at p. 1408.
[71] Transcript of Evidence, Bar Association
of Queensland, p. 1797
[72] Transcript of Evidence, Bar Association
of Queensland, p. 1795.
[73] Transcript of Evidence, Bar Association
of Queensland, p. 1797.
[74] Transcript of Evidence, Legal Aid
Commission of NSW, p. 1720.
[75] Transcript of Evidence, Legal Aid
Queensland, p. 1757.
[76] Transcript of Evidence, Legal Aid
Queensland, p. 1754.
[77] Transcript of Evidence, Family
Law Practitioners Association, pp. 1783-4; Bar Association of Queensland,
pp. 1796-7.
[78] Transcript of Evidence, Legal Aid
Queensland, p. 1759.
[79] Transcript of Evidence, Queensland
Family Law Practitioners Association, p. 1784.
[80] Letter from Victoria Legal Aid on behalf
of all the Legal Aid Commissions to Mr N Reaburn, Attorney-General's Department,
22 December 1997, p. 2. The letter notes than not all legal aid commissions
agreed with the compromise.
[81] Revised Commonwealth Guidelines to apply
to assistance provided by the ACT Legal Aid Commission from 1 July 1998,
Family Law Guideline 12.3.
[82] Transcript of Evidence, Legal Services
Commission of SA, p. 1601; Family Court of Australia, p. 640.
[83] Submission No. 97, Family Court
of Australia, p. 12.
[84] See for example, Submission No. 178,
Federation of Community Legal Centres (Vic), p. 10.
[85] Transcript of Evidence, Australian
Law Reform Commission, p. 1811.
[86] Transcript of Evidence, Family
Court of Australia, pp. 1636-7.
[87] Transcript of Evidence, Legal Aid
Queensland, p. 1767; Legal Services Commission of SA, p. 1601.
[88] Transcript of Evidence, Legal Services
Commission of SA, p. 1592.
[89] Transcript of Evidence, Victoria
Legal Aid, pp. 1403-4.
[90] Re JJT & Ors; Ex Parte Victoria
Legal Aid (M74/1997), oral argument heard on 11 February 1998.
[91] Transcript of Evidence, Family
Court of Australia, pp. 1643-4.
[92] Submission No. 60A, National Council
of Single Mothers and Their Children, p. 1.
[93] See also Submission No. 85A, National
Network of Women's Legal Services, p. 5.
[94] Submission No. 187, Women's Legal
Resource Centre (NSW), p. 4. See also Submission No. 85A, National
Network of Women's Legal Services, p. 11.
[95] (1994) 117 FLR 63 at pp. 82-4. The Court
noted at p. 84 that the thirteen categories of cases are not intended
to be exhaustive.
[96] Transcript of Evidence, Family
Court of Australia, p. 1639. See also Letter from Chief Judge Michael
Holden of the Family Court of Western Australia to the Committee, 24 March
1998, p. 1. See Transcript of Evidence, Legal Services Commission
of SA, for the contrasting approach taken by that Commission.
[97] Legal Aid Commission of WA, Annual
Report 1997, p. 28. The other guidelines provide in summary that a
representative should normally be appointed: if there is an apparently
intractable conflict between the parents; if the child is apparently alienated
from a parent; if there are real issues of cultural or religious difference
affecting the child; if the sexual preference of a parent or some other
person having significant contact is likely to impinge upon the child's
welfare; if there are issues of significant medical, psychiatric or psychological
illness in relation to either party or a child or other person having
significant contact; if on the material filed by the parents, neither
seems a suitable custodian; if a child of mature years is expressing strong
views relating to a major change in a long-standing custodial arrangement;
where one of the parties proposes that the child be permanently removed
to a place which will greatly restrict other party's access; where it
is proposed to separate siblings; where none of the parties are legally
represented; and for applications relating in particular to the medical
treatment of children where the child's interests are not adequately represented
by one of the parties.