After leaving a domestic violence situation, thousands of Australian women face another challenge: how to afford legal representation fees during mediation or litigation for the children’s custody and property settlement. The outcome of this process has an impact on the long-term wellbeing of women and children.
What does legal aid involve, and who are the providers in Australia?
Legal aid is an umbrella definition for a range of services, including providing legal information, advice, assistance and representation. Legal grants mostly refer to the costs of legal representation, either in mediation or in a court of law.
Free legal representation can be provided by 'in-house' legal aid lawyers, a pool of funded private practitioners or lawyers working at community legal centres. In all cases, funding is limited, and applicants have to meet the criteria of each service provider.
In Australia, the legal system involves public and private services working together to assist through:
- Legal Aid commissions; state and territory statutory agencies
- Community Legal Centres, independent, non-profit, non-government organisations
- Indigenous legal services, independent, non-profit, non-government bodies known as Aboriginal and Torres Strait Islander Legal Services (ATSILS)
- Private legal profession; lawyers acting through pro bono work or funded by Legal Aid
The outcome of this process may have long-term consequences, including the loss of their family, home, lost income, property and possessions, and the adverse effects on the physical, emotional, and mental health of women and children involved.
With an average hourly rate of $500, as estimated by Choice, lawyers' fees are unaffordable for most, particularly when women are already disadvantaged by the gender pay gap and the financial impact of motherhood.
There are specific Domestic Violence services that focus on helping increase awareness about violence, abuse and legal rights. However, almost none of these specific domestic violence service providers has the capacity to assign a lawyer to their clients, most of whom are women.
How much is allocated to each service is impossible to determine due to fragmented and inconsistent data.
Seeking help at a legal aid service
In each state and territory, legal aid centres extend legal services through legal aid grants. Each jurisdiction has its own policy and guidelines about who can get a family law grant, but in general, they assess the eligibility through a 'Means Test' and a 'Merit Test'.
Whilst a means test is the assessment of income and assets, a merit test looks at whether the matter has a reasonable prospect of success. The merit test is intended to ensure that limited state funds are made available to those most in need, while the merits test aims to serve the most deserving applicants.
Acting Chief Executive Officer of the Women’s Legal Service Victoria, Helen Matthews, says that Legal Aid Victoria doesn’t prioritise legal aid grants for women based on their family violence experience, even if it means resolving family matters or an argument over property.
Matthews says that getting legal aid for family law matters is extremely hard in Victoria because the eligibility is very restrictive, and there is a problem in the supply of private lawyers who are prepared to do legal aid work.
Maria is among thousands of migrant women who, due to domestic violence, had to leave the family home with her children.
To apply for legal representation through Legal Aid NSW, she had to complete a legal aid application to get a grant.
The 16-page online application was overwhelming.
She struggled with the legal jargon and was left feeling perplexed, but she needed to get it right, knowing her partner would use all means money can buy to take her children away.
Maria’s application for legal representation was rejected as she didn’t meet the means test criteria because she part owned a home on a mortgage.
Instead, she was given a list of pro bono lawyers. She contacted many of them, but after days of calling and hearing that none of them provided free legal representation, she eventually gave up.
Community legal centres across Australia and Aboriginal and Torres Strait Islander Legal Services are underfunded.
Another point of entry to access free legal support or representation is the 170 Community legal centres across the country. Due to insufficient funding, these centres cannot provide legal advice to one in three people seeking help, while legal representation is even harder to acces.
CLC’s CEO Nassim Arrage told SBS that due to government funding decisions, legal assistance services, even before the COVID-19 pandemic, turned away 170,000 people a year - including women seeking support to escape an abuser.
For the year 2018-19, the expenditure in discrete assistance was 88 per cent and 7.5 per cent in legal representation.
Of the 170 Community legal centres around Australia, 70 per cent provide general advice concerning domestic violence, and only 45 per cent can offer specialist legal advice about domestic violence.
In the financial year 2019-20, the sector provided over 706,000 free-of-charge services; more than 50 per cent of their clients were women.
These services don’t translate into legal representation but general advice about women’s rights. A small portion of them, the ones who met the criteria, received free legal representation.
Community legal centres are unable to provide legal advice to 30 per cent of the applicants who seek help, while legal representation is even harder to access.
Mr Arrage says that across all 170 centres, the waiting time for an appointment with a solicitor could be anywhere between one to six weeks. This only involves a consultation session, not advice or representation.
While there are no eligibility criteria for accessing their services (as Legal Aid has in place), Australia’s Community legal centres’ staff use 'indicators of disadvantage' to prioritise their clients due to limited funding.
These indicators include English language proficiency, age, health, etc. When a person seems to be able to help themselves, they are likely to only access legal information and guidance through self-help resources that are created to help them through the legal process.
Only highly disadvantaged clients are more likely to access legal advice and representation.
Northern Community Legal Centre CEO Jenny Smith says they refer around 30 per cent of potential clients to other services. Due to a lack of funding, their capacity stretches only to their priority clients.
Maria spent years visiting various community legal centres across Sydney and spent hours calling NSW free government telephone service, LawAccess. Every time she called, she was given general legal information, and not how the law applies to her specific circumstances.
It may be very difficult to understand and navigate the system, especially when individuals dealing with family matters are emotionally affected.
To address this issue, the Commonwealth ran the Specialist Domestic Violence Units pilot project from 2015to 2018, to assist women in an integral way. Over two-thirds of them said that, without this assistance, they would not have been able to go through the process alone, that they would have given up, gone back to their partners, and some would have considered suicide.
The National Legal Assistance Partnership agreement between the Commonwealth and the states and territories has assigned $51 million to fund this program for five years, starting in 2020.
Indigenous Australians have their own challenges in accessing legal services, that are beyond the scope of this report and will require further investigation. It's relevant to note that in the 2019-20 Pre-budget Submission, the Law Society of New South Wales pointed out the long-standing issue of under sourcing legal needs for First Nations’ members.
In the 2017 Briefing paper Access To Justice Issues Faced By Aboriginal And Torres Strait Islander Peoples In Western Australia, the Law Society of Western Australia argued: "the overrepresentation of Indigenous people within our judicial system is largely due to limited access to justice."
Their research shows that Indigenous women are particularly discouraged from accessing legal assistance because of decades of distrust and fear towards the legal system, among other reasons.
Learn more about domestic violence in Australia in SBS’s documentary series See What You Made Me Do.
Stream it for free on SBS On Demand with subtitles in
Simplified Chinese, Arabic, Vietnamese, Korean, Hindi and Punjabi.
If you, a child, or another person is in immediate danger, call 000
If you, or someone you know, needs assistance please contact the following organisations: