Research Brief
July 2014
History of legal aid and family law
Key Findings
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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 statebased 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.
July 2014
Published by Victoria Legal Aid
Contact: research@vla.vic.gov.au
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Disclaimer. The material in this publication is intended for general information only.
1
Research Brief – History of Legal Aid and Family Law
History of legal aid and family law .................................................................................................................... 1
Executive Summary ........................................................................................................................................ 2
Marriage and divorce in Australia during the 19th century............................................................................... 3
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 ........................................................................................................................................... 12
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
2
Research Brief – History of Legal Aid and Family Law
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
3
Research Brief – History of Legal Aid and Family Law
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
1
H.Finlay, ‘Divorce and the status of women: beginnings in nineteenth century Australia’ Seminar paper – Australian
Institute of Family Studies (AIFS), 2001‘ Aifs.gov.au, 2013. viewed 21 Oct 2013.
<http://www.aifs.gov.au/institute/seminars/finlay.html>p.13
2
ibid p.16
3
Ibid p.18-19
4
Ibid p. 10
4
Research Brief – History of Legal Aid and Family Law
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
Committee10, 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
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. <http://www.familylawwebguide.com.au/library/spca/docs/Caught%20in%20a%20Time%20Warp%20%20Australian%20Family%20Law.pdf>. 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
10Legal
Aid Act 1961 (VIC) established the Legal Aid Committee. The Committee came into operation in 1964.
5
Research Brief – History of Legal Aid and Family Law
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
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.’ Familycourt.gov.au, 2013. viewed 24 Oct 2013.
<http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home> p.26
16
Finlay,.’Divorce and the status of women: beginnings in nineteenth century Australia p.28
17
Noone,. &. Tomsen, op cit p.60
6
Research Brief – History of Legal Aid and Family Law
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 nonresident 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
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).
7
Research Brief – History of Legal Aid and Family Law
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 K27 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.
22
Australia. Department Of Families, Housing, Community Services And Indigenous Affairs. ‘History of the Child Support
Scheme | Australian Government Department of Social Services.’ Fahcsia.gov.au, 2013. viewed 24 Oct 2013.
<http://www.fahcsia.gov.au/our-responsibilities/families-and-children/programs-services/history-of-the-child-supportscheme>.
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
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.
25Australian
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
8
Research Brief – History of Legal Aid and Family Law
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
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.’ Aifs.gov.au, 2013. viewed. 4 Nov 2013. <http://www.aifs.gov.au/nch/pubs/sheets/rs22/>.p.4
33
LACV, Fourteenth Statutory Report 1993–94
34J
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
9
Research Brief – History of Legal Aid and Family Law
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.
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
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Research Brief – History of Legal Aid and Family Law
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 offences49 – 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
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.
11
Research Brief – History of Legal Aid and Family Law
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 services53 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
Hunter55 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
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.’ Alrc.gov.au, 2013. Web. 6 Nov 2013. <http://www.alrc.gov.au/inquiries/equalitylaw>.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
12
Research Brief – History of Legal Aid and Family Law
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
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
<http://www.federalfinancialrelations.gov.au/content/npa/other/legal_assistance_services/national_partnership.pdf>
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.
13
Research Brief – History of Legal Aid and Family Law
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 million68 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
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
<http://www.legalaid.vic.gov.au/about-us/news/new-eligibility-guidelines-now-operational>
70
Victoria Legal Aid. ’Parenting dispute guideline changes | Victoria Legal Aid.’ Legalaid.vic.gov.au, 2013. Web. 7 Nov
2013. <http://www.legalaid.vic.gov.au/information-for-lawyers/grants-guidelines/family-law-guidelinechanges/parenting-dispute-guideline-changes>.
71
M Holcroft,. ‘Legal aid cuts where it hurts most.’Web log post. LIV President's Blog. December 2012. Web.7 Nov 2013.
<http://www.liv.asn.au/LIVPresBlog2012/December-2012/Legal-Aid-cuts-where-it-hurts-most>.
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.
<http://www.nla.aust.net.au/res/File/PDFs/NLA_selfrep_FCA.pdf>
14
Research Brief – History of Legal Aid and Family Law
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
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.
<http://www.abc.net.au/news/2013-04-08/cuts-to-legal-aid-see-accused-rapists-cross-examining-victims/4616784>. as
an example.
78
Victoria Legal Aid. ‘New guidelines for legal representation at family law trials.’ Legalaid.vic.gov.au, 2013. Web. 1 Nov
2013. <http://www.legalaid.vic.gov.au/about-us/news/new-guidelines-for-legal-representation-family-law-trials>.
79
See, eg: ‘Family Court Chief Justice laments system failures’. ABC The World Today. 17 March 2014. Web.
<http://www.abc.net.au/worldtoday/content/2014/s3964685.htm>
15
Research Brief – History of Legal Aid and Family Law
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.
16
Research Brief – History of Legal Aid and Family Law
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
17
Research Brief – History of Legal Aid and Family Law
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.
18