Navigating Australia's Legal Aid maze

Looking for a free legal service Source: Getty Images/Fanatic Studio/Gary Waters

In most cases of domestic and family violence, men are perpetrators and women and children are victims. And yet, women in Australia who leave abusive relationships face considerable barriers to accessing justice, as SBS investigation reveals.

SBS investigates the reality of thousands of domestic violence survivors in Australia who can’t afford lawyers’ fees.

While still recovering from coercive control, as well as physical, sexual, emotional, and financial abuse, survivors are expected to navigate the maze of Australia’s underfunded government legal services.

They don’t understand Australia’s legal justice system and procedures or the highly technical legal jargon. They feel helpless when they are told they aren’t eligible for a legal grant because the ex-partner is being legally represented by the same service.

It gets much worse for those survivors who weren’t born in Australia and English isn’t their first language.


Why do men receive twice as many Legal Aid grants than women in Australia?

New data analysis reveals that men received twice as many Legal Aid grants compared to women, between July 2020 and March 2021: 66 per cent and 34 per cent respectively, as discovered by Sydney University’s Law Professor Simon Rice in a new analysis of Australia’s National Legal Aid Statistics.

Women in Australia having to go to the Family Court or Federal Circuit Court are systematically disadvantaged because Legal Aid funding for legal representation is strongly biased towards criminal law where males constitute the majority of defendants.

In Australia, law is broadly classified into three categories: criminal law, civil law and family law. Whilst Civil Law deals with disputes between individuals or organisations, Family Law deals with disputes within the family and tries to assist families after separation. It usually involves litigation about the children’s custody as well as the distribution of the family assets. Criminal Law is of a different nature, focused on dealing with cases of individuals who have broken a Criminal code.

Australian National Legal Aid Statistics records show that in 2020-21, out of 129,605 Legal Aid grants, men received 83,503, women 43,160, and people for whom gender criteria was not applicable received 2,942 grants.

In 2020-21, men received 83,503 Legal Aid grants, and women 43,160.

SBS, Legal Grants per gender (May, 2021)
SBS, with National Legal Aid Statistics (May, 2021)
SBS, from National Legal Aid Statistics (May, 2021)

In the financial year 2020-21, men received twice as much legal support than women for matters in Civil, Crime and Family Courts, according to the National Legal Aid Statistics.

Legal Grants given per gender in each state and territory
Legal Grants given per gender in each state and territory
SBS, with National Legal Aid Statistics data

Public funding for Legal Aid representation is limited and doesn’t cover the demand, forcing government agencies to use eligibility criteria methods to serve those most in need. One of them is the 'Means Test' that assesses if the applicant’s income and assets meet the criteria for free (or partially free) legal assistance. The objective of the means test, that all states and territories have in place, is to serve the most disadvantaged.

In principle, the 'Means Test' should impact women and men similarly. So why are women, including domestic violence survivors, getting half of the publicly funded legal aid compared to men who are perpetrators in the majority of cases?


 

Prioritising Criminal Justice affects DV survivors

The 1992 decision of the High Court in Dietrich v the Queen, determined that a lack of representation may mean that an accused in a serious criminal matter is unable to receive a fair trial. This means that in Australia an individual facing a criminal Court has to be represented by a legal professional.

This principle does not apply to Family Law or Civil Law. Access to legal aid is a universal discussion and has been addressed by United Nations.

A significant proportion of Legal Aid, funds serious criminal law matters, compared to civil and family law matters.

For the 2020-21 financial year, the National Legal Aid Statistics website shows that 83,499 people received legal aid grants for criminal law matters, 42,298 for family law matters and 3,808 for civil law matters.

Legal aid grants for family law matters are half than the ones granted to criminal law cases.

This limitation for family law funding is even more concerning when we break down the 42,298 Family Law grants. It includes grants allocated for legal representation of men, women (including, but not only DV survivors) and children, as the number of appointed Independent Children’s Lawyers (ICLs) continues increasing.

This means that the available funding for lawyers representing women in Family Law litigations is significantly less than 42,298 grants because part of the money is shared with lawyers representing men and children.

So how many of the 42,298 grants given to fund Family Law matters have actually benefit female survivors of domestic violence? The available data doesn’t allow this estimation.

Legal service providers face another challenge: conflict of interest.

When it comes to Family Violence matters, it is not rare that Legal Aid solicitors represent the respondent (alleged perpetrator) in other criminal law matters, which means they cannot represent the applicant/affected family member (victim).

National Legal Aid grants (2020-21)
National Legal Aid grants. Criminal, Family and Civil Law (2020-21)
SBS, with National Legal Aid Statistics (May, 2021)

A person may have to access the justice system through self-representation in Court, if he/she can’t pay for a lawyer’s legal fees. Over the years, Australian Courts have seen thousands of domestic violence survivors, standing in front of a Court by themselves, explaining their case and presenting evidence, without a lawyer.

Australia’s legal system does not apply the Dietrich principle to Family or Civil Law matters, so a person may be required to access the justice system through self-representation in Court, if he/she doesn’t have the means to pay for a lawyer’s legal fees. This includes victims of domestic violence.

Legal Aid services can’t represent both parties, to ensure there isn’t any conflict of interest.

However, Legal Aid Victoria said to SBS that women have options and they can still access other legal services when there’s a conflict of interest.

Joanna Fletcher, Executive Director, Family, Youth and Children’s Law at Victoria Legal Aid said to SBS that in Victoria 'conflicts of interest do not prevent women from receiving legal representation. For family violence matters in Victoria, where our lawyers are already representing one person, the other person can be assisted by a community legal centre or private lawyer who is funded by Victoria Legal Aid. In Victoria, the majority of family violence and family law legal aid grants are for clients who are receiving free legal assistance from a private lawyer'.

In these circumstances, says Ms. Fletcher, they refer the victim to a community legal centre or a private practitioner to be represented.

For many women, a referral is the point of entry to a legal maze they never suspected they'd had to navigate after surviving domestic violence.


 

Universal access to legal representation for Domestic Violence survivors

Australia doesn’t have a national policy or a budget allocation to fund a universal legal safety net for families experiencing domestic violence. A victim entering the public legal assistance system needs to apply for Family Law legal assistance, a program that deals with all family matters.

In Australia, on average, one woman a week is killed by her partner and almost 10 women a day are hospitalised for assault injuries perpetrated by a spouse or domestic partner.

In 2017, the NSW Government noted that in 2013, out of 85 females’ suicides, 49 per cent had a recorded or apparent family violence history. Between 2008 and 2016, there were 150 cases of intimate partner homicides in NSW; 90 per cent occurred in a domestic violence context.

The Attorney-General’s Department is responsible for coordinating government policy and projects that improve access to justice. In 2009, a report by the Access to Justice Taskforce argued that reform is needed to provide a 'coherent and holistic approach to decision-making across the legal assistance system'.

Since then, Australia has implemented a number of legal aid projects both at national and state levels. However, none of the initiatives are of universal access across the country and all of them require meeting certain eligibility criteria.

Women’s Legal Service Victoria Acting Chief Executive Officer Helen Matthews says that a significant number of disadvantaged women who need legal assistance are still today not eligible for legal aid grants.

If somebody is experiencing family violence even in a parenting matter, that doesn’t mean they are a priority client for legal aid.

However, many other countries, less wealthy than Australia, manage to provide free universal access to legal aid for victims and survivors of domestic violence. Some of them are Afghanistan, Thailand, Ghana, South Africa, Argentina, Brazil, Finland, Italy, where legal aid is available in all legal proceedings. China’s domestic violence victims have guaranteed access to legal representation; and Nepal recognises that free legal aid is a fundamental right of its citizens—even though they do not always meet the demand.


 

Mapping Australia’s services for those who can’t afford a lawyer

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.

In other words, legal aid is both a service provided by 'in-house' Legal Aid lawyers, and a pool of funded private practitioners and community legal centres that offer free legal representation. 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 provide assistance 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

After leaving a domestic violence situation, thousands of Australian women face another challenge: how to afford legal representation fees during the process of 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.

With an average hourly rate of $500, as estimated by Choice, lawyer’s fees are unaffordable for most, particularly in a society where women are already disadvantaged by the gender pay gap and the financial impact of motherhood.

There are specific Domestic Violence services that focus their work on helping increase awareness about violence, abuse and legal rights. However, almost none of these specific domestic violence service providers have the capacity to assign a lawyer to their clients, mostly of whom are women.

How much is allocated to each service is impossible to determine due to the fragmented and inconsistent data in Australia.

Kinds of legal aid levels Australia
Kinds of legal aid levels Australia
SBS

 



Maria’s nightmare: navigating Australia’s legal aid services maze

Argentinian-born Maria lived with her Australian partner for 12 years when emotional, verbal and financial abuse started.

Her partner never hit her, yet she was constantly worried about the potential psychological damage of this toxic relationship on their children. 

One night while having dinner, my daughter grabbed my hand under the table while he insulted me. It was heartbreaking.

It took Maria three years to stop inventing excuses for her partner’s behaviour before, out of desperation, she dialled 1800RESPECT. It was during those calls that Maria learned there is a name for intimidation and humiliation that became a part of her everyday life. She learned the meaning behind words: coercive control and gaslighting.

Michal Morris, CEO of InTouch Multicultural Centre Against Family Violence, says that 60 per cent of women who come to their centre are unaware of coercive control and gaslighting, while approximately 70 per cent are unsure about their legal rights.

Maria says that the available support phone lines are helpful as a first step because somebody listens and your feelings are validated.

It’s so painful that you need someone from outside to put in words what you already know, but I was too embarrassed to even admit to myself that I was a victim of abuse.

With two children, no money of her own and a partner whose controlling abuse was escalating very quickly, Maria says she was too overwhelmed to understand how to navigate the family law system and deal with emotional and financial abuse.

'Surviving family domestic violence leaves you emotionally fragile and lonely. It’s hard to make sense of the information and figure out the when, the how, the where and who is going to legally represent you. Unless your partner physically abuses you and police is involved, you feel disoriented, scared and responsible for your children to make a move.'

I ended up calling so many services that in the end I didn’t know who I was talking to. It would be great to be directed to a 'one stop shop' and have a customised legal service for victims.

Maria’s first consultation was in a nearby Neighbourhood Centre. After two weeks she managed to lock in a one-hour free-of-charge appointment with a solicitor. But on the day her solicitor was late, and Maria was worried because her partner would come searching for her in the Centre if she was late. 'When I finally told my story to the solicitor, he said he couldn’t help me because he was a criminal lawyer, not a Family Law solicitor.'

In a long procession from one legal aid service to another, Maria has been walking in circles, trying in vain to find free or affordable legal assistance.

On another occasion, she tried the free legal service at a different Neighbourhood Centre. That day, the solicitor’s laptop’s battery was flat and didn’t have a power cable. Unable to open Maria’s file, the solicitor conducted the meeting taking notes on a piece of paper. When they were almost finished, the solicitor realised that the advice was inaccurate because she had assumed Maria was married, when she was in a de-facto relationship. The precious time of the free consultation was wasted once again.

Eventually, Maria applied for a Legal Aid grant, she passed the online means pre-test, which encouraged her to send her application, but unfortunately, she didn’t pass the 'Means Test'. She had her own small business which was running at a loss. Yet, the fact that she co-owned the disputed former family home (mostly mortgage), made her ineligible for legal aid assistance or representation. The fact that Maria, in fear for her and children safety, moved out of her home and had no family support also did not make a difference.

United Nation’s 2016 global study on Legal Aid says about Australia: 'a particular impediment to women’s access to legal aid relates to the financial criteria for eligibility to legal aid, which often considers overall household income rather than women’s (considerably lower) individual income'.

Maria continued looking for available free legal services. Finally, she found one provider that could at least advise on her specific case. In this case she was eligible but the service provider couldn’t help her because there was a 'conflict of interest'. Her ex-partner had found this service before she did, and legal service providers can't advise both parties involved in the same conflict.

Maria had no choice but to find a private solicitor. Her matter is still unsolved and the debt with the legal firm continues growing.

'Solicitors charge to answer phone calls and reply emails. I was driving back home tired after cleaning for 11.5 hours in a construction site located 1.5 hour away when I realised that the money earned that day would only pay for 30 minutes of my solicitor’s fees, the equivalent of writing an email'.

I haven’t even put a foot in a court and in the last two and a half years; I’ve spent more than my whole superannuation, and I’m in debt.

Every single communication with the solicitor means money that Maria doesn’t have. Once her solicitor made a mistake and Maria spent the night awake thinking how much money it would cost to pay for the lawyer’s time reading the email, understanding the mistake and fixing it.

'I was frightened to ask if she would charge me for her mistake, but eventually, I plucked the courage and asked. I can't describe the relief I felt when I heard that she wouldn’t. That’s the sort of extreme pressure you go through. People don’t understand unless they experienced it.'


More than 20 per cent of Family Court cases in Australia don’t have a lawyer

Seven years ago, the 2014 Productivity Commission’s Access to Justice Arrangements report found that the number of people self-representing in Australian Courts is increasing.

The Family Court of Australia, in the 2019-20 Annual Report, states that 22 per cent of litigants were involved in matters where one or both parties did not have legal representation at some point of their proceedings, while 39 per cent of litigants were self-represented at trials. This means these individuals had to defend their case in Court without a lawyer. 

Representation of litigants in final order applications at some stage in the proceedings, 2015–16 to 2019–20
Family Court of Australia. Annual Report 2019-20

Most people who self-represent in Court can’t afford a lawyer and aren’t eligible for legal aid either.

In 2020, the University of Technology Sydney’s research project No Straight Lines indicates that in family law proceedings, 82 per cent of the self-representation cases include allegations of family violence.

Self-represented individuals in Australian courts commonly experience more than just one form of violent and abusive behaviour before separation. Women are more likely than men to say that they had experienced coercive control and gaslighting.

82% of the self-representation cases include allegations of family violence

As for the nature of the proceedings involving self-representing litigants, the report asserts 65 per cent are related to parenting matters, 10 per cent financial, 8 per cent parenting and financial, 3 per cent contravention, and 14 per cent for other and unclear reasons.


 

Who helps self-represented individuals in Court?

The challenge of self-representing in Court is particularly difficult for migrant women who might face language barriers and an understanding of Australia’s legal system.

InTouch CEO Michal Morris says that while legal issues are incredibly complex and nuanced for migrant women experiencing family violence, it isn’t apparent how to get help and where to go as the legal system is developed around the Australian culture and norms.

There are different programs across the country provided by government bodies, universities, and civil society that assist individuals who self-represent in Court. However, these services are fragmented, not easy to find and unable to serve all the individuals who require support.

Monash University has a Family Law Assistance Program designed to assist self-represented individuals in Family Law litigation. Under the supervision of a qualified and experienced lawyer, students provide knowledge and support about the legal process, prepare court documents, and appear before a register or judge.

Self-represented individuals in family law matters can also access the Family Court and Federal Circuit Court websites to learn about the court proceedings, but it’s difficult to understand. To fill the gap in legal and social service provision to self-representing individuals, each Australian State and Territory has a Family Advocacy and Support Service (FASS), which combines free legal advice and support at court for self-represented parties affected by family violence.

The 2018 Final report of the Evaluation of the Family Advocacy and Support Services concludes that the FASS should continue and some key services should be enhanced, including continuing to provide a duty lawyer and social services to both victims and alleged perpetrators.

Using a duty lawyer in court already in itself requires a level of understanding of the system, as explained by Women’s Legal Service Victoria Acting Chief Executive Officer Helen Matthews. Her organisation’s high-volume area of work is through duty lawyers for women appearing before the Melbourne Magistrate Court.

The role of duty lawyers varies according to the court, the case, and the provider of the service. In some courts they only provide advice, while in others, they appeared in court, assisted in negotiation, document preparation and more.

Self-representation assistance for Family Court matters is even more complicated.

Some organisations can assist self-represented parties with issues such as bankruptcy, employment law and human rights. Government founded National Self-Representation Service assists self-represented parties in the Federal Court and Federal Circuit Courts through various organisations: LawRight, Legal Aid Western Australia, JusticeNet South Australia and Justice Connect.

However, their help does not extend to Family Law proceedings.

If understanding the Court system is challenging, facing a cross-examination is something not many individuals can deal with.

Cross-examination is when a witness is asked questions by the other person or lawyer in the case, in order to test the witness' evidence or to try to obtain evidence not provided by the witness.

Professor of Law Dr. Jeff Giddings says that access to justice and a fair trial in Family Law matters means the right of all parties involved is not to be treated unfairly. One of the many challenges faced by self-representing individuals is court cross-examinations.

To avoid this situation, for family violence Court cases, Australia legislated against cross-examination without a lawyer. But what happens when any of the parties can’t pay for legal representation?

In 2019, Australia amended the Family Law Act 1975 to ban personally cross-examining the other party if there are allegations of family violence. The legal representative can either be a private lawyer or one funded through the Family Violence and Cross-examination Scheme.

However, the Scheme doesn’t apply to all cases. If the Scheme does not apply, it is up to the courts to provide the appropriate protection and assistance to self-represented victims of family violence, when giving evidence. This could be unfair because the assistance varies depending on the court. At the same time, this support can be seen as bias favouring one part.

Sydney University Law Professor Simon Rice says that the courts' help to individuals self-representing in court are  unable to make the process even, especially if the other party has a lawyer, because the process is highly technical.

For example, if a party has a long history of violent offending and/or mental health issues, that information does not automatically go before the court; it has to be subpoenaed and the material then has to be tendered to the court. 

An individual who is not familiar with court proceedings will struggle with things like trial affidavits and subpoenas.

  • A subpoena is a document issued by a government body, normally a court, to order a person to provide information that will be used as evidence.
  • An affidavit is a written record of someone’s evidence, and it should only include what is relevant to the case.

In trials, subpoenaed material can be a hugely important part of the evidence. Knowing how to tender the material is complex – it’s not a matter of having a subpoena to produce evidence issued, you then need to serve it, file a notice of request to inspect and then tender the material. 

As SBS continues investigating and talking with legal experts at different levels, the team discovers more challenges faced by family violence survivors when navigating Australia’s legal system. Section 102NA of the Family Law Act 1975 adds to the list.

Section 102NA Family Law Act 1975 can result in a perpetrator, and not the victim, getting Legal Aid support in Court cross-examinations.

Section 102NA of the Family Law Act regulates mandatory protections for parties in certain cases. It applies both to cases where the examining party is the alleged perpetrator, and when the examining party is the alleged victim.

As Legal Aid can't be provided to both parties, sometimes the application of the norm results in the perpetrator, and not the victim, getting Legal Aid support in the cross-examination.


 

Poverty: long-term impact of domestic violence and self-representation

In 2018, the Australian Institute of Health and Welfare calculated that 48 per cent of women who were homeless found themselves in that situation due to domestic violence issues.

Unrepresented parties in family and civil proceedings also face long-term consequences: the loss of their family, home, lost income, property and possessions together with the adverse effects on physical, emotional and mental health.

In addition, self-representation has an impact on the mental and emotional health of children of self-represented parties, as the time spent on preparing the case and being concerned about the outcome distracts from the quality time spent with children.

The President of the Law Council, Dr Jacoba Brasch QC says The Law Council’s Justice Project found that a failure to address legal problems have broader cost implications – such as to health, housing, social services and welfare, child protection, families, corrections, policing and justice portfolios.

They may lose their children in the process, and that they may not get a good deal financially out of the relationship breakup, which can end up in homelessness, long-term debt, and other significant consequences, Mr Arrage says.

Women's Legal Service Victoria’s Impact Report 2020 states that women who have experienced family violence are ten times more likely to have legal problems.

Community Legal Centres Australia CEO Nassim Arrage says that it is known for a long time that legal issues and health issues are often interrelated and that not solving or not getting a good outcome in a legal sense can end with health problems.

He points out that not having good support to go through the legal system means that many women won't even try to access that system.

 


 

Funding of Legal Aid Schemes and Services

The federal government has committed to invest $400 million per year in the legal assistance sector over five years, effective from 1 July 2020, through the new National Legal Assistance Partnership (NLAP) agreement between the Commonwealth and the states and territories.

The NLAP agreement estimates a 51 million financial contribution for the Domestic Violence Units / Health Justice Partnerships in the whole country, for 5 years -an average of 10 million per year:

  • 7.5 million for New South Wales 
  • 8.1 million for Victoria
  • 12.2 million for Queensland
  • 7.9 million for Western Australia
  • 5.3 million for South Australia
  • 2.7 million for Tasmania
  • 2.4 million for the Australian Capital Territory
  • 5.3 million for the Northern Territory

Investment - National Legal Assistance Partnership 2020-25
Investment - National Legal Assistance Partnership 2020-25
SBS, with 2020-25 National Legal Assistance Partnership data

The NLAP has also assigned a baseline of resources for Family Law and/or Family of 77.6 million dollars, an average of 15.5 million per year for all Australia. New South Wales will receive a total of 20.6 for the 5 years; Victoria 18.4; Queensland 14.2; Western Australia 10.1; South Australia 7.2; Tasmania 2.8; the Australian Capital Territory 1.7; and 2.7 for the Northern Territory.

National Legal Assistance Partnership 2020-25
National Legal Assistance Partnership 2020-25
SBS, with 2020-25 National Legal Assistance Partnership data

But the sector says this is not enough to address an increasing demand that’s affecting thousands of women and children in Australia. 

The Law Council of Australia considers that 'current Commonwealth funding levels under the NLAP to be approximately half of the level required to meet demand on the sector'.

Their 2021-22 Pre-Budget Submission to the Attorney-General Department, reads that the legal assistance sector was seriously underfunded prior to the pandemic which increased the demand for funding and resourcing.

Dr. Jacoba Brasch, president of the Law Council, said to SBS that the primary problem faced by the legal assistance sector is that funding from a succession of governments has failed to keep pace with population growth and inflation.

Funding from a succession of governments has failed to keep pace with population growth and inflation.

She says that the strain on the legal assistance sector to address unmet legal needs with restricted funding is not new. It was also noted in the 2018 Review of the National Partnership Agreement on Legal Assistance Services and by the 2014 Productivity Commission’s Access to Justice Arrangements report.

The 2014 commission recommended to better align the 'Means Test’ used by legal aid commissions with other measures of disadvantage, in order to increase the number of individuals who can access legal representation grants.

In 2018, the Law Council’s Justice Project also noted that since 1997, the Commonwealth has dramatically reduced its spending on legal aid funding from around 55 per cent of the contribution at that time, to only 33 per cent in 2017-18.

The Law Council has repeatedly called for the Commonwealth’s share of Legal Aid Commission funding to return to at least 50 per cent of their budget, allowing for a more equitable split with the states and territories.


 

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 are the 170 Community Legal Centres (CLC) across the country. Due to insufficient funding, Community Legal Centres are unable to provide legal advice to every third person who seeks help, while legal representation is even harder to access.

CLC’s CEO Nassim Arrage said to 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 and stay safe from an abuser.

For the year 2018-19, the expenditure in discrete assistance was 88% and 7.5% in legal representation.

Service expenditure in assistance and representation (CLCs) 2018-19
Service expenditure in assistance and representation (CLCs) 2018-19
Law Foundation. Community Legal Centres, National Picture, 2018-2019

There are 170 Community Legal Centres (CLC) around Australia, out of which 70 per cent provide general advice concerning domestic violence. Only 45 per cent of centres can offer specialist legal advice in the area of 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 are women.

These services don’t translate into legal representation, but general advice about the woman’s rights and how to proceed. 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’s 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 the limited funding.

Indicators of disadvantage 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.

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 the 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. Without fail, every time she called, she was given general legal information, without helping Maria understand how the law applies to her specific circumstances.

Legal literacy is a skill in itself as it’s very difficult to understand the system and navigate it, especially when most individuals dealing with family matters are emotionally affected.

To address this issue, from 2015 to 2018 the Commonwealth ran the successful Specialist Domestic Violence Units pilot project to assist women in an integral way; 68 per cent of them stated 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 for some, considered suicide. The National Legal Assistance Partnership agreement between the Commonwealth the states and territories has assigned 51 million dollars to fund this program for 5 years, from 2020.

Legal Services for Indigenous Australian individuals have their own challenges and dynamics, that are not addressed in this investigation, as it requires specific treatment. It's relevant to note that in the 2019-20 Pre-budget Submission, The Law Society of New South Wales points out that the issue of under-sourcing legal needs for First Nations’ members is long-standing.

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 argues that '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 approaching legal assistance, amongst other reasons, because of decades of distrust and fear towards the legal system.


 

Seeking help at Legal Aid

In each state and territory, Legal Aid Centres extend legal services through legal aid grants. Each jurisdiction has their 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 applicant’s matter has a reasonable prospect of success.

Women’s Legal Service Victoria Acting Chief Executive Officer 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.

To apply for legal representation through Legal Aid NSW, Maria 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 because she didn’t meet the 'Means Test' criteria. 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 was providing free legal representation, she eventually gave up. 


 

How to solve problem

The Law Council has long called for a stronger commitment to improving data and evidence that allows the identification of Australian community’s legal needs.

Its president, Dr Jacoba Brasch QC, says the proper resourcing of the family court system is a critical issue requiring urgent attention and that funding for legal assistance services must identify legal need in the community, a baseline level of services before arriving at an appropriate funding model.

For the Law Council, this approach would be more conducive to establishing a framework for the Commonwealth, states and territories to agree on national objectives, such as a minimum proportion of the population who should be eligible for free legal assistance.

The Law Council expects the data collection through the implementation of the National Legal Assistance Partnership (NLAP) will help decision-makers to make evidence-based policy and funding allocations that reflect Australian community’s legal needs.

The 2018 Final Report of the Justice Project of the Law Council of Australia addresses the challenges faced by migrants and identifies the need to build legal literacy skills and their general knowledge of the Australian system of law and government, in a language they understand. It also identifies the need of more evidence to capture the cultural, linguistic and gender diversity of recent arrivals in the justice system as well as their outcomes.

The 2014 Access to Justice Arrangements Inquiry report of the Productivity Commission concluded that governments have a role in assisting disadvantaged Australians, not only as a duty of care of the most disadvantaged sectors of community, but because 'numerous studies show that efficient government-funded legal assistance services generate net benefits to the community'.

The Productivity Commission has identified one of the most affected groups is 'missing middle', between those on high incomes and the ones on lower incomes who are more likely to be covered by publicly funded assistance schemes.

The Commission estimates that only 8 per cent of households would likely meet income and asset tests for legal aid, leaving the majority of low and middle-income earners with limited capacity for managing large and unexpected legal costs.

Experts agree that that the gap in services, particularly for migrant women facing situations of domestic violence, won’t be addressed until more resources are assigned to meet the needs of disadvantaged Australians.

United Nation’s global study on Legal Aid identifies Australia’s challenges in accessing legal aid, including 'resourcing constraints and strict accessibility tests to access legal aid for civil/family law'.


 

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:

1800 RESPECT
Telephone: 1800 737 732
Web: www.1800RESPECT.org.au

Kids HelplineTelephone:
1800 55 1800
Web: kidshelpline.com.au

Men’s Referral Service
Telephone: 1300 766 491
Web: www.ntv.org.au

Lifeline
Telephone: 13 11 14
Web: www.lifeline.org.au