History of Legal Aid and Family Law



History of legal aid and family law

Key Findings

The history of family law is a reflection of the social circumstances of the time. Legal divorce proceedings were generally not available to the ordinary person until relatively recent times, so legal assistance for divorce was not common in the 19th century.

Legal assistance for matrimonial matters was only available in a limited capacity until the 1960s, when the Legal Aid Committee was established in Victoria.

The operation of family law in Australia has been heavily influenced by our Constitution, and distinctions between federal and state laws. Family law is a product of the combination of Commonwealth power in relation to marriage and divorce, with the states retaining powers in relation to child welfare, property matters and de facto relationships. This is reflected in current legal aid funding arrangements, where legal matters related to families (such as family violence and child protection) are funded by the state, while the Commonwealth funds matters in relation to family breakdown and parenting disputes.

The modern family law system and the modern family law legal aid system arise from the introduction of no-fault divorce, the establishment of the Family Court of Australia and the establishment of the Australian Legal Aid Office and subsequently state-based Legal Aid Commissions in the mid 1970s.

In the first year of the Legal Aid Commission of Victoria’s operation, there were roughly equal numbers of family law and criminal law grant of aid approvals. However, in times of economic restraint, legal aid agencies have restricted their services, with family and civil law matters being cut more severely than criminal law services. This is due to a number of historical factors, but may also be due to underlying assumptions about the relative importance of different sorts of legal problems.

Where criminal law legal aid has been prioritised over legal aid for family and civil matters, this has impacted on women’s access to legal aid as the overwhelming majority of crime is committed by men. This is despite women being more likely to be economically disadvantaged.

There have been further significant changes to Australia’s family law system throughout the 1990s and 2000s and family law legal aid services have had to change regularly to keep up with these developments as well as funding pressures.

History of legal aid and family law 1

Key Findings 1

Executive Summary 2

Marriage and divorce in Australia during the 19th century 4

Commonwealth involvement in Family Law 1959–1975 5

The modern family law system 1975–1990 6

1990s – Pressures on family law and legal aid cuts 8

Women and legal aid 11

2000 and beyond 13

Timeline 16

Executive Summary

The ‘Family law’ system as we know it today had its origins with the development of divorce laws in Britain and in colonial Australia. Unlike in criminal matters, for most of the 18th and 19th centuries, there was no concept of legal assistance for the poor in family law matters, as there was no such thing as ‘family law’ (as we know it today). There were laws relating to the dissolution of marriage, but they were only designed for rich, titled men – it wasn’t until in the latter half of the 19th century that the social consequences of bad marriages (for instance abandoned or abused wives, neglected children) were seen as a state responsibility, so it was in the interests of the state to provide some means of relief from a bad marriage. While early Australian laws were modelled on British divorce laws, the social circumstances in Australia meant that the impetus for reform and development of the law was more urgent, and in the late 19th century we saw some progress on more grounds for divorce being available that took into account the particular needs of women. We also saw the very important move from an individual having to petition Parliament for an act to dissolve their marriage to being able to apply to the courts for dissolution.

The separation of powers between the states and the Commonwealth has also had a major influence on how laws relating to marriage breakdown have developed. So while each state and colony in Australia had its own marriage/divorce laws, with Federation the Commonwealth took over the powers in relation to law making regarding marriage. Despite having these powers, the Commonwealth’s use of them was limited until 1959. While it created a new Commonwealth Marriage Act, the states retained legislative powers in relation to child welfare, de-facto relationships, children born outside of marriage and disputes about property. In the meantime, legal aid became available for family law matters through the Public Solicitor’s Office, which though able to undertake these family related matters, was predominantly focused on criminal law. Later the Legal Aid Committee of Victoria was established and subsequently took over the bulk of civil matters, including matrimonial matters, from the Public Solicitor’s Office. Poor people could apply for assistance through these schemes, which were run by the private profession.

The Commonwealth did not take responsibility for legal aid for family law until the establishment of the Australian Legal Aid Office (ALAO) in 1973. A large part of the work of the ALAO was in family law matters. In 1975, the introduction of no fault divorce and the Family Law Act, saw a significant increase in the number of divorces. During this period, a federal specialist family court was established and we saw family law matters moving from the state courts to the Family Court of Australia. It was envisaged that legal aid would be available to people who needed access to the Family Court but did not have the means to do so and that aid would be provided by solicitors employed by the ALAO.

However, in 1975, with the change of government, the ALAO was disbanded and a decision was made to decentralise legal aid and establish separate legal aid commissions in each state and territory. Some of the ALAO staff and caseload were absorbed into the Legal Aid Commission of Victoria. At the establishment of the commission there was an even split between family and criminal law approvals for grants of aid. However through the 1970s and 1980s, the mix of work would see the number of criminal law grants approved overtake family law grants of aid.

In the 1990s, the Legal Aid Commission was under financial pressure and implemented further restrictions on grants of aid, particularly in family and civil law. At this time, there was recognition that women as a group faced barriers when accessing justice. Legal Aid Commissions tended to prioritise criminal over family and civil matters, resulting in men becoming the overwhelming beneficiaries of legal aid. In 1995, the Federal Government stated that it was going to address these concerns through a National Women’s Justice Strategy, but there was a change in government in 1996 before this could be implemented. The strategy was abandoned and the new Government subsequently changed the Commonwealth/State funding arrangement, restricting Commonwealth funding to Commonwealth matters only and introducing a ceiling on funding for family law matters. This effectively reduced Commonwealth funding for legal aid, and family and civil law services faced the biggest cuts during this period.

This arrangement caused Victoria Legal Aid to accrue a surplus in unspent Commonwealth money, while at the same time, reporting a state deficit. The added frustration of the funding agreement was that VLA wasn’t able to spend Commonwealth money on increasing demand for legal assistance in the areas of family violence and child protection. This has eased somewhat with the National Partnership Agreement, but the Commonwealth/State funding restriction is still in place today.

Throughout this time, VLA has had to keep pace with the multiple changes in a dynamic jurisdiction, which has seen significant reform since its inception. VLA provided support to a new court, the Federal Magistrates’ Court (now Federal Circuit Court), provided funding for primary dispute resolution, set up a Family Violence sub-program and a Child Support Unit (Family Law Financial Support) and has set up its own dispute resolution program through Roundtable Dispute Management. In the last three to four years in particular, VLA has made major changes to guidelines in order to manage family law expenditure, including controversial funding decisions related to Independent Children’s Lawyers and the funding of family law trials. Restrictions to family law services invariably affect the lives of vulnerable people, and particularly two of VLA’s priority groups – women experiencing (or at risk of experiencing) violence and children. VLA has to manage a limited legal aid fund, in an environment where demand is increasing across all programs.

Marriage and divorce in Australia during the 19th century

Pre-federation, the laws governing divorce were mainly derived from British law. Colonies did not have the power to grant divorces, Australian colonists who wanted a divorce would have to apply directly to Britain.[1] As it was in Britain, prior to the 1857 Divorce and Matrimonial Causes Act, getting a divorce was out of the reach of anyone apart from the very wealthy and required a petition directly to parliament. While women could apply for a divorce, the grounds on which they could do so were inequitable. For instance, a man would only have to prove one single incident of adultery, a woman would have to prove aggravated and repeated adultery. Historically, divorce was more about the protection of property, and the inheritance of property, which is why the very wealthy and men were the only ones able or motivated enough to enact their rights to a divorce. The double standard for men and women was justified on the grounds that adultery was much more serious when committed by women as it could throw doubt on lines of inheritance. There was no question of access to divorce by the poor, as the divorce laws as they were, excluded most of society. In fact, allowing divorce to occur was controversial throughout the 19th century as marriage, even bad marriages were seen as preferable to encouraging divorce amongst the lower classes.

After the 1857 British Act, each state or colony in Australia developed its own divorce laws, however uniformity with the mother country was paramount, and any law that differed from the British legislation required royal assent directly from England, rather than from the Governor as the Queen’s representative.[2] In 1861, Victoria introduced its first divorce legislation, based on the British Act. By 1873, all states had some divorce legislation in place. The Victorian legislation reflected the double standard in relation to the grounds for divorce, where a man could divorce his wife for one single act of adultery, while a woman would have to prove repeated adultery, or adultery coupled with incest or cruelty.[3]

Australia in the 19th century was a very different place to England, with a more transient population, where numbers of men heavily outweighed the numbers of women. This may partly explain why divorce law developed more quickly and progressively in Australia then in England. For instance, desertion was a real problem for Australian women, it occurred at a much higher level than in England, with men deserting them for casual work or for the goldfields. This desertion could have more serious consequences for women as they lacked the traditional family or community supports they may have had in England. If they were unable to re-marry (and in the early days of the colony, there were plenty of men around to become second husbands), they became a burden on the colony. The way Australia was settled also led to a more transient population. Married couples lost contact with each other, for example, if one was transported here and the other left behind in England, and the number of de facto relationships was higher as it was easier to form new relationships outside of marriage.

’In Australia…the expedient of parliamentary divorce, as a way of escaping from a marriage, had never existed. A ‘popular’ way out was bigamy based on the presumption of death’.[4]

Due to these cultural differences, the colonies advocated for more grounds to be available in order to get a divorce. In Victoria, a new Divorce Act in 1889 included desertion, habitual drunkenness, leaving the mother without support and cruelty as some of the additional grounds available for divorce.[5] While there was still no concept of legal assistance for the poor when it came to access to divorce, what this legislative development shows is a shift away from divorce law as a privilege exercised only by the rich, to the law being used to protect the welfare of women, or to escape an unhappy or unreasonable marriage by either party (for instance men could divorce women for neglecting their domestic duties).[6]

With federation in 1901, the Constitution gave the Commonwealth powers relating to marriage and divorce. Other aspects of family law, such as property, adoption, child welfare, de facto relationships and inheritance remained with the state.[7] The Commonwealth would not enact these powers until 1959, until then each state and territory had its own marriage and divorce laws and family divorce applications were heard in state courts. In terms of legal assistance for divorce applications, the Victorian Public Solicitor’s office was established in the late 1920s, and while it did include provision for legal assistance for matrimonial matters,[8] it was quite under-resourced so, in practice, it mainly focused on criminal matters.

Commonwealth involvement in Family Law 1959–1975

In 1959, the Commonwealth enacted the Matrimonial Causes Act thereby creating a uniform matrimonial/divorce and child custody law in Australia. There was no federal court created so family law matters were still heard through the state Supreme Courts, who had been vested with federal jurisdictional power in relation to family matters.[9] Commonwealth ‘family law’ powers specifically dealt with marriage and divorce, the state retained separate powers in relation to family violence, child welfare, and de facto matters (including jurisdiction over children born outside of legal marriage).

In 1964, applications for legal assistance for family law matters went through the Legal Aid Committee[10], while the Public Solicitor’s Office focused on criminal law applications. The committee, made up of members of the Law Institute of Victoria and the Victorian Bar, assessed applications for aid and assigned work to private solicitors. The committee dealt with a lot of family law matters, in fact before the Australian Legal Aid Office (ALAO) was established in 1973, the largest single category of cases were matrimonial cases (divorce, maintenance and custody of children).[11] This meant that the private profession was heavily involved in the delivery of family law services. The Public Solicitor’s Office, with salaried government lawyers, delivered criminal services and effectively outsourced civil matters (mainly family law matters) to the private solicitor run Legal Aid Committee. This established the history of legal assistance in the criminal area being delivered by the government through salaried lawyers, while legal assistance in the ‘private’ civil and family sector was provided by a scheme controlled by the private profession.

The Australian Legal Aid Office (ALAO) was established in 1973, and took over the provision of legal assistance for family law matters from the committee, though the committee still retained some of these matters. In 1973–4, the committee reported assigning 2,809 grants towards family matters. By 1975, two years after ALAO was established, this number had more than halved to 1,315.[12] When the establishment of ALAO was announced, Lionel Murphy (Attorney-General 1972–75) specifically mentioned the need to provide legal aid for divorce matters.[13]

The modern family law system 1975–1990

In 1975, the Family Law Act was introduced. This Act revolutionised the family law system, due to the complete removal of all grounds for divorce, apart from irretrievable breakdown. This concept of no-fault divorce was meant to make divorce more accessible and simplify court proceedings by removing the grounds of divorce as a contestable matter.[14] Following the introduction of the Act, there was a large jump in the number of divorces, from 28,308 divorces in 1975, to 66,092 in 1976.[15] We also saw the establishment of a central, federal family court, which became a specialist court for family law matters. With the set up of the Family Court of Australia, the Commonwealth still gave the states the power to create their own family court – Western Australia was the only state to take this up, which is why it has ‘separate’ family law legislation (which is still consistent with the Commonwealth).[16]

It was always envisaged that Commonwealth legal aid would be available for family law matters, and the recently established ALAO would provide the bulk of legal assistance for divorce matters. In fact, family law matters were soon its largest area of activity.[17] However, a change of government in 1975 and the subsequent decision to decentralise legal aid service delivery to state based legal aid commissions meant the ALAO was eventually disbanded and some of its staff and casework taken over by Legal Aid Commissions. In fact, in the first year of operation for the Legal Aid Commission of Victoria (LACV), the number of family law grant approvals matched the number of criminal law grant approvals (40.1 percent and 40.5 percent respectively), which reflected the influx of cases from the ALAO to the commission, probably one of the few times in LACV history where the division between family and criminal work was about equal. The original LACV, established by legislation in 1978, but not opening its doors until 1981, had a total of 9 family law solicitors (6 full-time and 3 part-time). From its very beginnings, the commission did not provide assistance for straightforward divorce matters, but did provide divorce classes as well as casework.[18]

The Constitutional issue of Commonwealth and State powers continued to affect the operation of family law in Australia, so though we had a centralised Family Court and family law system, the court had no power over de facto relationships and the state retained its power in making laws concerning child welfare and family violence. And there was a two tiered system for dealing with family disputes involving children – the federal system for children born within marriage, and the state courts for children born outside of marriage. It wasn’t until the 1980s that most states referred their powers to the Commonwealth in relation to children in de facto family law matters. This happened in Victoria in 1987, which still retained its jurisdiction over child welfare, family violence, adoption and de facto property disputes.[19] In the same year (1987), the Victorian Crimes (Family Violence) Act came into force. A decision was made that legal aid would not be granted for family violence intervention order applicants, unless the police refused to bring the proceedings.[20] The assumption behind this decision was that the police would be assisting the applicant. This was relaxed a little in the 1990s, where aid would be granted only if the respondent was contesting the application, however the substance of the guideline still applies today and VLA predominantly provides grant funding for respondents in these types of matters.[21]

In 1988–89 we saw the introduction of the Child Support Scheme, which calculated what the non-resident parent would pay based on their income and circumstances. The Child Support Agency was established to administer the scheme and the previous power of the courts to calculate maintenance amounts and enforce the agreement was transferred to the agency. This was introduced due to the problem of non-compliance with court ordered maintenance arrangements, and because of the recognition of the increased risk of poverty for women and children following divorce.[22] While the introduction of the scheme was meant to reduce the need to go to court, VLA found that, rather than saving the commission money, it actually increased costs in other areas of family law as parents forced to pay maintenance became involved in disputes about access and custody and VLA saw an increase in family law matters overall.[23] In 1989–90, VLA set up a dedicated Child Support Service, funded from a specific Commonwealth grant and subsequently the need for advice and casework in relation to maintenance decreased, however VLA increased its self help programs assisting parents with child support claims.[24]

Throughout the 1970s and 1980s, awareness of access to justice issues, particularly for vulnerable groups such as the poor and women, was growing. The vulnerability of women within the family law system, and the economic disparity and unequal power relationship between men and women in a family law dispute was an area of concern, particularly with evidence showing women who had not remarried were considerably financially worse off post divorce than men.[25]

1990s – Pressures on family law and legal aid cuts

From the early 1990s, VLA was under increasing financial pressure and was implementing a range of restrictions on legal aid. Family and civil grants in particular fell in the early 1990s, for instance family law grants had fallen from 27 to 18 percent of all grants in 1992–93.[26] In 1994, the decision in Re K[27] identified the criteria in which the Family Court could order a separate representative appointed for a child. This decision resulted in a ten fold increase in the number of orders for the appointment of a separate representative, rising to an average of 67 a month, compared to only six per month in 1992–93.[28] This placed huge pressure on VLA expenditure, as VLA funded almost all separate representatives in the Family Court. The costs for funding separate representation went from $163,000 in 1993/94 to $2.4 million in 1995/96.[29] However, despite the fact that in 1998, the High Court decided that the Family Court did not have the power to order VLA to fund a representative,[30] the court continued to make orders for a separate representative, based on the criteria in Re K.

Also in 1994, the government responded to a recommendation arising from high-profile inquiry into child protection (following the tragic case of Daniel Valerio)[31], and introduced mandatory reporting of suspected child abuse by professionals such as teachers and welfare workers.[32] This saw the number of protection orders in the Children’s Court increase, and subsequently increased demand for legal aid in child protection matters.[33]

In 1997, the Coalition government made significant cuts to Commonwealth expenditure on legal aid, and created a new funding arrangement which ensured that Commonwealth money could only be spent on Commonwealth matters. The funding agreement also stipulated cost ceilings on family and Commonwealth criminal law matters.[34] VLA had already placed fee ceilings on family law matters in 1995, but also placed further limits on funding for each stage of matter. Private practitioners strongly objected to the cuts and some threatened to withdraw from legal aid work.[35] A survey of the legal profession at the time found that some private practitioners responded to the cuts by significantly reducing the amount of legal aid work they took on, and some even admitted they gave a different level of service to legally aided clients than to self funded clients, for instance by giving that work to junior solicitors.[36] Practitioners surveyed also noted that they had been involved in matters where the other represented party deliberately prolonged proceedings, with the knowledge that the other party’s legal aid grant would expire.[37]

It wasn’t just the ceiling itself which caused distress amongst some clients and some practitioners, it was the manner in which they were applied. VLA chose to apply the cuts retrospectively. A Senate Inquiry into the Australian Legal Aid System noted the effects of that decision;

’Litigants found, sometimes apparently without warning, that their legal aid had run out, notwithstanding that they might be at a particularly critical stage of the matter, perhaps even mid-trial’ [38]

While most states imposed the ceilings, it was noted that Victoria in particular, allowed for no discretion in relation to the decision. Interestingly, the amount related to the caps themselves were thought to be quite reasonable as most family law matters did tend to fall within the cost of the ceiling ($10,000) – they were even cited as a way of influencing the profession and courts to ensure that legal aid cases were run efficiently and to reduce unnecessary actions.[39] However the other side of this was the risk of exploitation by the other party, who could delay proceedings knowing that the legal aid grant would run out.

The main problem with the caps cited in the Senate Inquiry were not the caps themselves but rather the retrospective nature and the complete lack of discretion. Some legal aid commissions did allow for more discretion, but Victoria argued against any discretion as it may lead to inconsistent decision making, increase the risk of more reviews and threaten VLA’s budget position.[40] However, Victoria got around the issue by allowing the Family Court to decide whether a cap could be exceeded, limited to funding for one extra court day.[41] In 1998, VLA changed its guidelines to allow for more discretion – if it looked likely that the case would exceed the cap, then the case was moved inhouse to contain costs, or if that were not possible then a further $2,000 could be granted on top of the cap. While this provided some relief and flexibility for individual cases, this extra money had to come from VLA’s own budget, there was no extra Commonwealth money to fund these extensions of aid.[42] Despite the problems with the caps, the Committee did not suggest their removal, rather that the impacts of the caps would need further investigation.[43]

Besides the need to cap family law expenditure as a result of the cuts to Commonwealth funding in 1997, the other stipulation of the agreement – that Commonwealth money could only be used for Commonwealth matters, caused problems for the increasing legal need in the areas of family violence and child protection. Though often co-existing with family law issues, only state money could be spent on these matters. This led to a rather awkward situation for VLA which by the end of 1997, found that it had a $12 million operating surplus, all from the commonwealth funding side, while all the state money had been used up, and none of the Commonwealth money was allowed to be used for state matters.[44] VLA responded to this surplus in the next financial year by announcing higher levels of family law fees and increasing the number of child representatives in the family court, all in the attempt to reduce their Commonwealth surplus.[45]

By the end of the 1990s, there was somewhat of a mini-expansion of family law services, with extra family lawyers recruited and a new duty lawyer service set up for family matters in the Federal Magistrates Courts. VLA also started giving grants for primary dispute resolution.

Women and legal aid

The legal aid funding situation in the 1990s, which impacted so heavily on family and civil matters, raised questions about women’s access to legal aid. In the early 1990s it was well known that women were not getting legal aid (in the form of grants of aid) to the same extent that men were. This led to an investigation by the Attorney General’s Department into whether there was a gender bias within legal aid commissions.[46]

The Department’s analysis of data did find a gender bias, which, while not overt (ie. women were not being denied grants just because they were women) nevertheless existed, due to policy decisions made by Commissions which prioritised criminal over family and civil matters. And during the 1990s, the situation worsened with an increase in criminal matters, and a reduction in family/civil matters across legal aid commissions.[47]

It is worth noting that the Attorney General’s assessment of gender bias in legal aid only looked at grants of aid for litigation, and not at preventative or early intervention services. If these were included, then we may see the gender division in receiving legal services being more equal. However, just looking at overall number of services can also be misleading – while an equal number of women and men may be benefiting from information or advice services, in terms of the value of services provided, men are still getting more value from legal aid in terms of money and time spent on their legal matters.[48]

This prioritisation of criminal matters has some historical basis in Victoria, with the Legal Aid Act explicitly mentioning criminal offences[49] – with the implication that these types of matters are to be considered more important. VLA is also required to comply with section 197 of the Criminal Procedure Act, where the court may order VLA to provide representation in a criminal matter, which places further demand on the fund to be spent on criminal law matters. Some of this prioritisation may also be due to the fact that criminal legal aid has been in existence for longer than civil legal aid in Victoria, and arguments by some that the major priority for legal aid should be representation for clients threatened with loss of liberty in a criminal matter.[50] This, however, may ignore other potential serious personal and social consequences of family and civil law matters, for example being subjected to abuse or violence or the loss of children, as well as the fact that such a prioritisation tends to disadvantage women because men commit the overwhelming majority of crime.[51]

As a result of an inquiry into barriers for women accessing the justice system in 1994,[52] the Australian Law Reform Commission recommended that more legal assistance be provided to women, including specialist women’s legal centres in each state and territory and that a National Women’s Justice Program be established. In response, the Federal Government agreed to establish the program including a national network of specialist women’s legal services[53] but this was abandoned with the change of government after the 1996 election.

The momentum for improving women’s access to legal aid dampened with the Federal Government cuts to federal legal aid in 1997. Legal Aid Commissions responded to these cuts by capping family law matters and radically cutting civil law work. This exacerbated the structural inequality that already existed within Legal Aid Commission guidelines. The further requirement that Commonwealth money could not be used for state matters meant that Commonwealth funding was denied for family law related matters that may impact more on women – family violence and child protection, or for the range of civil problems which may result from family breakdown – tenancy, housing and debt issues for example.[54]

Hunter[55] argues that women ultimately suffered from a changing focus in legal aid service delivery, from a welfare model (implying universal access to all who need it, although the reality is that legal aid has never been resourced to that level) to a neo-liberal model that sees legal aid being targeted only to those who need it the most.[56] So, in times of economic necessity, the service becomes more targeted to a smaller group, and the circumstances qualifying for help become more extreme or acute. As Legal Aid Commissions were dealing with serious funding cuts post 1997, more restrictions were placed on receiving aid for family and civil matters, women were largely the losers in relation to the cuts, and legal aid came to be seen not as a right or an essential service, but only available to the most marginalised.

2000 and beyond

During the 1990s, the family law system in Australia went through significant reform including the emphasis on alternative or primary dispute resolution and significant changes to the Family Law Act which aimed to promote a more child-centred view and ‘shared parenting’.[57] The decade also saw the creation of the Federal Magistrates Court (now Federal Circuit Court) and changes to the family law process including the introduction of pilots for less adversarial trials and the introduction of the Magellan list for cases involving allegations of child abuse. Throughout the 1990s and into the new millennium, VLA continued to adapt to those changes in its family law practice. By 2000, VLA funded primary dispute resolution and had a duty lawyer service at the Federal Magistrates Court. In 2004, VLA set up its own dispute resolution service through the Roundtable Dispute Management Program. However, in the next few years, financial pressure would continue to impact on family law services. Some of this pressure came about due to increasing demand and a Commonwealth/State funding agreement in 1999, which saw increases distributed unevenly amongst the states, with Victoria receiving significantly less of an increase in funding than other states. By the end of 2008, Victoria Legal Aid had an operating deficit of $20.3 million.[58]

In 2008, the Commonwealth/State funding agreement continued until a new funding arrangement was negotiated in the form of a National Partnership Agreement. The previous agreement didn’t take into account the population growth in Victoria and the impact on demand. Finally, in 2010, the new National Partnership Agreement came into effect. The criteria used to allocate funding to each state and territory was more favourable to Victoria than previous agreements had been resulting in an increase in the Commonwealth money available.[59] The agreement also allowed for more flexibility in how Commonwealth funding could be used, allowing money to be used for state family violence and child protection matters where there was a related Commonwealth family law issue.[60]

Following the decision in Re K, family law judges in Victoria were ordering appointments for Independent Children’s Lawyers (ICLs) at a rate that exceeded other states and this was impacting on the VLA fund.[61] This led to a controversial decision in 2008 to limit ICL funding by placing a quota on the number of ICLs that could be appointed each month.[62] It was indiscriminate, unaffected by the merits or seriousness of the matter and was soundly criticised by members of the judiciary and legal profession at the time.[63] There were also limits on the funding of family reports, the assets equity test was reduced to $100,000 and VLA no longer funded instructing lawyers for family law cases. [64]

The quota did have the effect of reducing the appointment of ICLs but the quota was removed after a review of guidelines in 2011. While there was an expected increase in demand (and subsequently on VLA funding) for ICLs following the removal of the quota, this was expected to be offset by other savings from family law guidelines changes – for example, restrictions on litigation grants and no longer providing funding for divorce applications. The changes in guidelines particularly sought to prioritise matters involving children, family violence or particularly vulnerable clients, for example those with mental health or substance abuse issues.[65] In early 2011, the assets equity threshold for eligibility was also re-increased to $300,000.[66]

The removal of the ICL quota resulted in a large increase in the number of ICL appointments. While this was anticipated the actual number of appointments exceeded what had been initially forecast and budgeted for when the guideline change was introduced.[67] VLA subsequently restricted ICL appointments to cases that contained specific Re K factors, namely unreported allegations of physical, sexual or psychological abuse, child alienation and where there were issues of significant illness or personality disorder in one or more parties who had contact with the child.

In 2012–13, funding pressures, including an operational deficit of $3.1 million[68] led to further guideline changes, across all program areas. In family law, there was a suite of guideline changes announced,[69] that impacted across almost all family law sub-program areas (child protection, ICL, family violence, RDM and parenting disputes). One of the biggest changes to the guidelines was to limit funding for parents for family law court proceedings to pre-trial preparation only and not fund representation at final hearings, unless the other party has representation.[70] This change was condemned by the LIV,[71] but was somewhat overshadowed by the criminal law changes to limit the use of instructing solicitors in criminal trials. This is partly due to the fact that judges used their power to stay criminal trials while higher courts determined whether the lack of an instructing solicitor was impeding a fair trial for the accused. VLA chose to implement an interim guideline restoring instructing solicitors until the matter was resolved.

Self represented litigants have been a more common feature in the Family Court and Federal Magistrates Court, even in complex trials,[72] so there is an argument that while an unrepresented person in the Family jurisdiction is disadvantaged compared to someone who may be represented, this does not seem to be considered to be as unacceptable as an unrepresented person in a higher criminal court. The history of the capping of family law fees in legal aid matters means that in the past, individuals have found themselves without representation (or partially represented) during the course of a trial. In criminal law, the link to legal representation (in serious criminal matters) and the right to a fair trial had been reinforced in R v Dietrich, where the court has power to stay a trial in order for legal aid to fund representation, regardless of VLA guidelines.[73] The federal family law courts do not have the same power to intervene in VLA funding decisions, as has been found in Re JJT and Lancet v Lancet (which looked at whether proceedings could be stayed until VLA provided funding for an ICL), which confirmed the power of the court to order the appointment of an ICL, but that the court had no power to order VLA to fund that ICL through a grant of aid.[74] And unlike in the Criminal Procedure Act,[75] there is no legislative requirement for VLA to fund specific family law matters with the exception of state contested family violence intervention order matters where courts can order VLA to fund representation for cross-examination.[76]

While the guideline changes to family law in 2012-13 may not have provided the same degree of controversy as the criminal law guideline changes, they have still generated negative publicity and concern about their impact on the most vulnerable, for instance women who have experienced family violence.[77] With its financial situation stabilising due to the impact of the guideline changes and in recognition of these concerns, in late 2013 VLA re-introduced funding for representation at family law final hearings for certain groups of particularly vulnerable clients.[78] This change was welcomed but concerns about the ongoing impact of the guideline on women who have experienced family violence continued to be voiced.[79]

Since the 1990s, in times of economic hardship or where legal aid funding is reduced (or not increased to meet legal need), criminal law matters tend to be prioritised and family and civil matters lose out. To some extent the recent guideline changes have resisted that trend by making targeted changes to both criminal and family programs and only limited changes in the civil law area, which is already a much smaller program. However, the base for assistance for family law was already lower than that provided in criminal law, in terms of the level of services provided, the volume of work and the numbers of grants. While criminal law trials (temporarily) lost an instructing solicitor for the full duration of the trial, the funding for an instructing solicitor in family law trials had already been cut back in 2008 and now legally aided persons are no longer funded for representation during the course of the final hearing in the trial (in parenting disputes), save in the circumstances noted above.

While VLA has identified women at risk of violence and children as priority groups for legal aid assistance, the environment in which we are operating is making it difficult to reprioritise resources towards the legal issues most impacting on women and children. Family law and family law related issues are competing in an environment where increased policing and changes to sentencing are increasing demand for criminal legal aid. Even the focus on policing family violence is increasing demand for legal assistance for the perpetrators of family violence, as well as the victims. Similar to the 1990s, despite being well aware of the barriers to accessing the justice system faced by women, in times of economic hardship, we will need to maintain an awareness of who misses out on legal aid and why and whether the decisions made regarding eligibility exacerbate inequality.

Timeline

1857 – (UK) passes Divorce and Matrimonial Causes Act 1857

1861 – The colony of Victoria introduces Divorce legislation, modelled on the English 1857 Act.

1889 – Victoria introduces the Divorce Act, which extends the grounds for divorce available. The Act received Royal Assent in 1890.

1894 – The Victorian Society for the Prevention of Cruelty to Children established. This would become the Victorian Children’s Protection Society and would be in place until the mid 1980s.

1901 – s 51 (xxi) and (xxii) gives the Commonwealth Parliament powers to make laws in respect to marriage, divorce and parental rights arising from divorce

1927 – (VIC) Poor Person’s Legal Assistance Act 1927 provided aid for civil matrimonial matters. A person was eligible if they did not own property worth more than 50 pounds

1959 – (COM) Matrimonial Causes Act 1959 – the first time the Commonwealth enacted its legislative powers in the area of divorce.

1964 – The Legal Aid Committee established through the (VIC) Legal Aid Act 1961. The Committee oversees a scheme to pay private practitioners to represent poor people and to provide a limited advice and referral service, mainly in civil matters and criminal cases at the Magistrates’ Court.

1975 – Family Law Act introduced, came into force 1975. In relation to legal aid, this transferred family law into a Commonwealth rather than a State responsibility.

1976 – Family Court set up – equal in jurisdictional powers to state Supreme Courts and the Federal Court.

1983 – the appellate division of the Family Court of Australia set up permanently (previously appeals were handled by senior judges).

1984 – the Family Court of Australia has the jurisdiction to determine disputes involving ex-nuptial children. De facto property and maintenance issues still remain in the state jurisdiction.

1985 – The state takes over responsibility for child protection services (from the Victorian Children’s Protection Society).

1987 – Victoria refers its powers in relation to children in the areas of family law (specifically guardianship, custody, maintenance and access) to the Commonwealth. The state though retained its powers in relation to adoption and child welfare. The state also retained its powers in relation to property disputes of unmarried couples.

(Vic) Crimes (Family Violence) Act introduced.

1988 – Child Support Scheme introduced.

1994 – Re K, important decision establishing the criteria where the Family Court could order representation of children.

Mandatory reporting for child abuse introduced into Victoria, following a large scale inquiry. The (VIC) Children and Young Persons Act 1989 was amended to make it mandatory for prescribed professionals, eg. teachers, police – to notify child protection services if they suspected child abuse.

1995 – Family Law Reform Act introduced. Came into operation in 1996, which further highlighted the status of mediation as the primary means of resolving family conflict. Changes included changing the words custody and access to residence and contact – to move away from possessive (win/lose) language.

Following the ALRC inquiry into Equality before the law, the Federal Government releases its National Women’s Justice Strategy, which was intended to provide funding for a national network of women’s legal centres, and provide additional funding for civil and family legal aid. However, within 12 months, there was a new Federal Government, which reduced funding to legal aid.

1997 – New Commonwealth funding agreement stipulates that Commonwealth funding can only be spent on Commonwealth matters. The Commonwealth guidelines stipulated caps on family law matters. VLA imposes caps on grants for family law matters, not exceeding $10,000 per party, and 15,000 for cases involving children.

Magellan pilot commences at Melbourne and Dandenong registries.

1998 – The first Family Violence Prevention Legal Service opens in Kempsey, NSW.

1999 – (CTH) Federal Magistrates Act passed, establishing the new Federal Magistrates Court.

2000 – Federal Magistrates Court opens with Diana Bryant as the inaugural Federal Chief Magistrate

VLA starts granting aid for primary dispute resolution in family law matters.

2003/4 – VLA establishes the Roundtable Dispute Management services

2006 – (CTH). Family Law Amendment (Shared Parental Responsibility) Act 2006

The Family Court pilots a less adversarial trial (LAT) model.

2008 – (CTH) Family Law Amendment (De Facto financial matters and Other measures ) Bill 2008 to bring family law property matters involving de facto and/or same sex partners into the federal family law system (with the exception of SA and WA, who have not referred these powers to the Commonwealth) – Note WA has never referred its family law powers to the Cth, so already includes de facto couples consistently with married couples.

VLA makes changes to family law guidelines including introducing its ICL monthly quota, not funding instructing solicitors and reducing the equity allowable when assessing means to $100,000

2011 – VLA changes the family law guidelines by removing the ICL quota, and extending some of the grants related to RDM and reducing some grants related to litigation funding in order to favour early resolution of family problems and to prioritise children and clients with special needs. In the same year, the equity threshold was also raised from $100,000 to $300,000, meaning more people would be eligible for a grant of aid.

2012 – VLA places restrictions on ICL appointments, limiting them to cases that demonstrate specific factors as identified in Re K.

2013 – VLA makes further changes to guidelines, including limiting funding to trial preparation for family disputes, restrictions on RDM funding to priority clients, restrictions for parties who contravene recent court orders without reasonable excuse, increasing the age of representation in the Children’s Court, requiring ICLs to conduct their own advocacy, restrictions on services for Family Violence Order respondents and child protection applicants.

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[1] H.Finlay, ‘Divorce and the status of women: beginnings in nineteenth century Australia’ Seminar paper – Australian Institute of Family Studies (AIFS), 2001‘ .au, 2013. viewed 21 Oct 2013. p.13

[2] ibid p.16

[3] Ibid p.18-19

[4] Ibid p. 10

[5] ibid, p.18-19

[6] ibid

[7] H. Finlay, ‘Caught in a time warp: Australian family law: a split jurisdiction.’ Family Law Web Guide, n.d. viewed. 24 Oct 2013. . p.11

[8] Poor Person’s Legal Assistance Act 1927(VIC) A person was eligible if they did not own property worth more than 50 pounds.

[9] Finlay, . Caught in a time warp: p.11

[10]Legal Aid Act 1961 (VIC) established the Legal Aid Committee. The Committee came into operation in 1964.

[11] Legal Aid Commission Of Victoria. Legal aid in Victoria: a brief summary of the history and operations of the Legal Aid Commission of Victoria. 4th ed. Melbourne: LACV, 1994 p.6

[12] Legal Aid Committee. Annual report. 1973-74 & 1974-75 Melbourne: LAC, 1976

[13] Cited in R. Coates, A History of Legal Aid in Australia. Fourth Annual Colloquium of the Judicial Conference of Australia: the 20th century – a century of change, Melbourne. Melbourne: JCA, 1999

[14] M Noone, & SA Tomsen. Lawyers in conflict. Annandale, N.S.W.: Federation Press, 2006 p.55

[15] M Harrison, ‘Family Court of Australia – Finding a better way: A Bold Departure from the Traditional Common Law Approach to the Conduct of Legal Proceedings – April 2007.’ .au, 2013. viewed 24 Oct 2013. p.26

[16] Finlay,.’Divorce and the status of women: beginnings in nineteenth century Australia p.28

[17] Noone,. &. Tomsen, op cit p.60

[18] Legal Aid Commission of Victoria, Third Statutory Report 1981-82, Melbourne LACV, 1982

[19] Finlay, ‘Caught in a time warp: p. 29 it wasn’t until 2008 that legislation was introduced to bring de facto property matters into the Family Law jurisdiction. This change still relied on Victoria to refer its powers to the Commonwealth.

[20] J Giddings,’Restrictive legal aid guidelines and the review of decisions’. Legal aid in Victoria: at the crossroads again. By J Giddings, (ed). Melbourne: Fitzroy Legal Service, 1998 p.151

[21] However, most services in this area today are, in fact, provided via duty lawyering rather than grants of legal assistance, through which both applicants and respondents are provided with legal advice and representation. The bulk of family violence intervention order duty lawyer services are provided by the VLA staff practice and community legal centres (many funded by VLA to do so).

[22] Australia. Department Of Families, Housing, Community Services And Indigenous Affairs. ‘History of the Child Support Scheme | Australian Government Department of Social Services.’ .au, 2013. viewed 24 Oct 2013. .

[23] Legal Aid Commission of Victoria, Tenth Statutory Report 1988-89, Melbourne, LACV,1989. p.4 & p.32

[24] Legal Aid Commission of Victoria, Eleventh Statutory Report 1989-90, Melbourne, LACV 1990 p.7

[25]Australian Law Reform Commission, ‘The economic consequences of marriage breakdown in Australia’. Matrimonial property (ALRC Report no.39).. Canberra: ALRC, 1987 Chapter 6 summarises research into the economic consequences of breakdown of marriages.

[26] Legal Aid Commission of Victoria, Thirteenth Statutory Report, 1992–93, Melbourne LACV, 1993

[27] Re K [1994] FamCA 21

[28] Legal Aid Commission of Victoria, Fourteenth Statutory Report 1993–94, Melbourne, LACV, 1994

[29] Giddings,. ‘Restrictive legal aid guidelines and the review of decisions’ p. 150

[30] JJT (ex parte Victoria Legal Aid), (1998) HCA 44

[31] JF Fogarty Confidential Report of the Ministerial Panel of Inquiry into the Death of Daniel Valerio: Presented to the Minister for Community Services, the Honourable Kay Setches, M.p. Melbourne?: Victoria. Department of Community Services, 1991

[32] A Lamont, Alister & L Bromfield. ’History of child protection services – Resource sheet – Child Family Community Australia.’ .au, 2013. viewed. 4 Nov 2013. .p.4

[33] LACV, Fourteenth Statutory Report 1993–94

[34]J Giddings . ’Restrictive legal aid guidelines and the review of decisions’ p.154

[35] Noone & Tomsen p.187

[36] Springvale Legal Service. Hitting the ceiling: Springvale Legal Service report into the impact of funding limits in legally aided family law matters which came into effect 1 July 1997. Melbourne: Springvale Legal Service, 1998. p. 20

[37] Ibid p. 17–18

[38] Australia. Parliament. Senate Legal and Constitutional References Committee, J McKiernan, (Chair). Inquiry into the Australian legal aid system: third report [Canberra]: Parliament of the Commonwealth of Australia,1998 p. 1

[39] ibid p. 82–83

[40] Ibid p. 90

[41] Ibid p. 92

[42] Ibid p. 93–94

[43] Ibid p. 95

[44] Victoria Legal Aid. Second Statutory Annual report 1996-97, Melbourne, VLA, 1997

[45] Victoria Legal Aid. Third Statutory Annual report 1997-8, Melbourne, VLA, 1998

[46] Australia. Attorney General's Department. Legal Aid And Family Services. Gender bias in litigation legal aid: issues paper. Canberra: The Dept., 1994

[47] Ibid p. 40

[48] In the financial year 2013–14, men received 67% of grants, duty lawyer and legal advice work, women received 33%. For Legal Help, the numbers are roughly equal, with women slightly outnumbering men.

[49] Legal Aid Act 1978 (VIC) s.24(2). The Act seems to imply a lower threshold for granting legal aid for these matters than for unspecified other matters (family and civil).

[50] Australian Law Reform Commission, Equality Before the Law: Justice for Women (Report Number 69 Part 1) Sydney, N.S.W.: Australian Law Reform Commission, 1994 [4.8]-[4.17]; Australia. Attorney General's Department. Legal Aid And Family Services. Gender bias in litigation legal aid: issues paper. Canberra: The Dept., 1994, 37; Senate Legal and Constitutional References Committee, Legal Aid and Access to Justice, Canberra, A.C.T: Parliament of the Commonwealth of Australia, June 2004, 46-47.

[51] Ibid.

[52] Australian Law Reform Commission, RW Agnew, (Chair) Equality before the law (ALRC Report no 67). Sydney, N.S.W.: Australian Law Reform Commission, 1993

[53] ‘Equality before the law | ALRC.’ .au, 2013. Web. 6 Nov 2013. .refers to the government response to the report in their Justice statement 1995.

[54] G Macfie, ‘Families and justice: a Commonwealth legal aid priority’ Impact, Spring, 2003 p.10

[55] R Hunter, ‘Mirage of Justice: Women and the Shrinking State’ Australian Feminist Law Journal, 16, 2002 p.66

[56] Ibid p. 72

[57] Family Law Reform Act (CTH) 1995

[58] Victoria Legal Aid, Thirteenth Statutory Annual Report 2007–2008, Melbourne, VLA,2008 p3

[59] The Commonwealth government provided an additional $8.3m in recurrent funding until 2014 and the Victorian Government provided an additional $24.9m for two years, which managed to significantly reduce VLA’s structural deficit.

[60] Council of Australian Governments National Partnership Agreement on Legal Assistance Services, COAG, 2010

[61] Victoria Legal Aid Fourteenth Statutory Annual Report 2008-2009, Melbourne, VLA, 2009 p.22

[62] 40 in the Federal Magistrates Court, and 23 in the Family Court per month.

[63] Victoria Legal Aid Service Review: Independent Children's Lawyers. Melbourne: VLA, 2011 p.11

[64] Law Institute of Victoria. Forced cuts to legal aid protested at funding rally, media release, 28 April 2010, gives a flavour of the cuts to family law and the opposition by LIV and other members of the judiciary.

[65] Victoria Legal Aid. New family law guidelines, intranet news item, 26 September 2011

[66] Victoria Legal Aid. Board announces reforms to eligibility criteria and fees, intranet news item. 21 December 2010

[67] VLA had budgeted for a 30 percent increase in ICL appointment, but quickly exceeded that with a 45 percent increase within the first year of the guideline change.

[68] Victoria Legal Aid. Seventeenth Statutory Annual Report 2011–12, Melbourne, VLA, 2012 p.51

[69] Victoria Legal Aid. New eligibility guidelines now operational, website news item. 9 April 2013

[70] Victoria Legal Aid. ’Parenting dispute guideline changes | Victoria Legal Aid.’ Legalaid..au, 2013. Web. 7 Nov 2013. .

[71] M Holcroft,. ‘Legal aid cuts where it hurts most.’Web log post. LIV President's Blog. December 2012. Web.7 Nov 2013. .

[72] R Hunter, J Giddings & A Chrzanowski. Legal aid and self-representation in the Family Court of Australia. Sydney: Griffith University, 2003 p.3-5 summarises research into SRLs in the family court.

[73] Dietrich v R, (1992) 177 CLR 292

[74] Re JJT (ex parte Victoria Legal Aid), (1998) HCA 44 ; Lancet v Lancet (2008) 218 FLR 36

[75] Criminal Procedure Act 2009 (VIC) s 197

[76] Family Violence Protection Act 2008, (VIC) ss.71 and 72

[77] See: S Sara, ‘Victims quizzed by attackers 'due to legal aid cuts'. ABC News. 8 April. 2013. Web. 7 Nov 2013. . as an example.

[78] Victoria Legal Aid. ‘New guidelines for legal representation at family law trials.’ Legalaid..au, 2013. Web. 1 Nov 2013. .

[79] See, eg: ‘Family Court Chief Justice laments system failures’. ABC The World Today. 17 March 2014. Web.

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