Legal Aid Matters
Legal aid funding share must flow to Victoria
State and Federal Budget boosts to legal aid must flow into the provision of better family and criminal law services and funding for legal practitioners, according to the Law Institute of Victoria.
LIV President Steven Stevens said both Governments had recognised the chronic underfunding of legal aid in their recent budgets.
“The real work to improve legal aid services must begin now,” he said. “Governments have now taken the first step,“ he said.
“Victoria received the lowest per capita funding of any State, and that has resulted in a cut in services in family law,” he said.
“Victorian lawyers have always provided legal aid services at a discount rate, but it is unjust of Governments to expect them to continue to provide many services for no fee at all,” Mr Stevens said.
The LIV called on the Federal and State Governments to address the funding imbalance in the new National Partnership Agreement on legal aid, which is due to be in place by 1 July this year.
Victoria receives $6.18 per capita from the Federal Government for legal aid, compared with the national average of $7.78.
Of the 2009/10 VLA budgeted expenditure of $123,121,000, the Federal Government provided $33,173,000 while the Victorian Government provided $67,126,000. The rest was budgeted to come from the Public Purpose Fund and self generated income.
The Victorian Government last week announced an additional almost $50 million for legal aid over two years and the Victoria would expect to receive at least another $4.5 million from the Federal Government’s $23 million per year increase announced last night.
“Currently it is harder to access assistance for a family dispute in Victoria than anywhere else in the country, and in most cases you need to be on a social security benefit and facing jail time to get criminal law assistance,” Mr Stevens said.
“This continued reduction in services due to funding pressure must be addressed now,” he said.
The impact of inadequate funding of legal aid and the community legal sector in criminal law matters
- Only a small fraction of those people dealt with by the Criminal Justice system are “hardened criminals” who have been convicted of serious offences.
- The courts are filled with people charged with traffic and minor offences, some of which attract mandatory sentences of imprisonment.
- In 2008-09 the second most common proven offence in the Magistrates’ Court was Drive Whilst Disqualified – which attracts a mandatory sentence of one months imprisonment if convicted a second time.
- Theft is the most common offence. This includes a packet of chewing gum from a grocery store, or the theft of food by a homeless person.
- Many criminal matters in the courts involve offences committed by some of society’s most vulnerable people – the homeless, or those suffering from mental illness.
- In 2008-09 6,849 defendants were linked in to Court Support services, which exist to provide housing, counselling and support services to vulnerable and needy defendants. These services address causes of offending and help prevent recidivism.
- Criminal defence lawyers protect those charged with offences, against the power of the State. In many cases, they stand between ordinary citizens and gaol. Never think “that will never be me” – it could be.
- Despite this, inadequate Legal Aid funding has made Legal Aid limit their guidelines. This means fewer people and fewer types of cases can be assisted through Legal Aid.
- The “means test” is now so low that only those on a Centrelink benefits are eligible for Legal Aid
- The “merits test” means that you have to run the risk of going to prison before you are eligible for Legal Aid.
- Very low fees to defence lawyers mean that many lawyers cannot afford to undertake legally aided work. This means that very junior and inexperienced lawyers are forced to take up the slack.
- Inadequate Legal Aid funding also puts pressure on under-resourced Community Legal Centres to cover the shortfall.
- Where people “fall between the gaps” of Legal Aid and Community Legal Centres, they are often forced to represent themselves.
- Inadequate Legal Aid funding means that some of societies most needy and vulnerable are denied access to justice,
Family Law
Unfunded Legal Aid Case studies
Changes to Victoria Legal Aid (VLA) guidelines now exclude people ordinarily eligible for legal aid from getting legal aid if their family law disputes involve children’s issues and property issues, even if the property in dispute is just superannuation, debts or chattels. The following cases highlight the impact of these guidelines and the difficulties created for families in already vulnerable circumstances**.
- Martha and Peter recently separated and have a 3 year old child who lives with Martha. Peter has a bad credit rating so during the marriage a number of loans were taken out in Martha’s sole name and sometimes in joint names. Their loans totalled $40,000. Peter refused to help pay the debts even though he earns a substantial income. Now that they are separated, Martha is responsible for the full time care of their young child while Peter has moved interstate. She is struggling to pay the debts herself as well as meet her other financial obligations as a single parent. Martha was eligible for legal aid for spousal maintenance but because there are property issues in dispute she is no longer eligible for legal aid, even though the property in dispute relates only to debts. Martha cannot afford a private lawyer and pro bono assistance for family law matters is very difficult to obtain. Martha is left with no legal representation and she will have to represent herself in court to resolve her dire financial situation and have their debts fairly apportioned. This case highlights the difficulties women face when their family law disputes involve children and property matters, in particular where the property relates to debts only.
- Adam and Amy were separated but had always determined visitation for their two children without interference from the courts. However, Amy no longer felt comfortable sending the children to Adam’s home due to fears from counsellors that he was emotionally and psychologically abusing their seven year old child. The child does not want to return to Adam’s house. However, Amy was served with papers to give Adam immediate visitation. Although Amy is on a disability pension, she was refused legal aid on the basis of the equity in her house. Amy was seeking representation for an upcoming court date but was unable to obtain pro bono assistance due to the very limited time line.
- This matter highlights the very strict application of the asset test, to the detriment of the family and ultimately the children suffering in the circumstances. The case concerns Hilary, a woman attempting to prevent her ex-husband, Phil, from accessing their children. They married without Hilary realising that Phil was an illegal citizen in Australia and had a wife with children overseas. There was a history of domestic violence, threats to kill and sexual abuse from Phil, resulting in an intervention order made against him. Hilary believed the application by Phil to access their children was merely a bid to stay in the country, as the government were attempting to extradite him based on character and dishonesty. Legal aid was rejected due to the fact that Hilary had some equity in her house. However, Hilary was receiving Centrelink benefits and was looking after four children as a single parent.
- This matter involved a dispute over Clair’s ex-husband’s contact with their children after a history of violence and alcohol abuse, which lead to contact and interim orders being implemented. Claire breached the orders by preventing Daryl from contacting
- their children. Daryl also breached the interim orders as he has failed to comply and restrict his alcohol consumption. Their young son no longer wants contact with Daryl because he is scared of Daryl’s alcohol abuse. Legal aid was refused because Claire’s new husband owned an investment property worth $110,000, despite Claire receiving a single parenting payment.
- A family had been involved in a long history in the Courts and proceedings had been initiated. Allegations that father, Terry, is violent towards the mother, Betty, and the proceedings were seen as an example of Terry asserting control over Betty. After three years of proceedings, the parties entered into final consent orders. Terry now seeks to vary the orders; changing the school of their young child. Betty is on a parenting pension but was refused legal aid because she had reached her legal aid funding cap. She sought pro bono assistance to cover the gap in legal aid funding.
- Sam is an aged pensioner involved in a property dispute between his son, Peter and Peter’s ex-wife, Lauren. Lauren alleged that Sam was holding a property in trust for Peter in order to avoid it being included in the property settlement. However, Sam alleged that this property was his principal place of residence. He was refused legal aid on the basis that he had substantial equity in the property in question.
- This case study highlights the important nexus in a family law dispute between resolving children’s issues and property issues and how resolving both matters are crucial and interrelated when resolving a family law dispute. In essence, resolving the property issues is part and parcel of resolving the issues relating to the children and providing for their well being. Paula and Vince have 3 children. They jointly own a heavily mortgaged home. Paula left Vince due to family violence but after separation, Vince refused to leave the home so Paula left with their 3 children. Due to the history of family violence and further allegations of sexual abuse against the children, the matter is in the Magellan list to hear their children’s issues. Paula is receiving legal aid for her children’s matters through private lawyers. Vince has not continued to pay the mortgage and the banks are threatening to foreclose. Paula is struggling financially and desperately needs to apply to the family court to resolve their property matters before the banks foreclose and she loses their home and any equity accrued. However if she includes their property matters in the dispute, she will lose her legal aid funding even though there is very little equity in the home. As the private lawyers do not get funded for her property matters, they are refusing to join the property matter to her children’s issues. She has approached Women’s Legal Service Victoria (WLSV) to act in her property matters as WLSV assist people with limited property. However she cannot have two lawyers acting for her in the same proceedings, so she is stuck with her private lawyers doing only what they are funded by legal aid to do which is litigate her children’s matters and ignoring the very urgent need to resolve her property matters for the financial security and stability of her family.
- Ben was seeking representation from a barrister for the final hearing at the Federal Magistrates' Court in relation to the care of his children. Ben was seeking 50% parenting responsibility for his children. Ben had previously been eligible for legal aid. However, since moving in with his new partner his legal aid application was rejected based on the new partners’ income. Ben claimed that his partner does not support him financially, they just live together. This case illustrates a strict application of the asset test. The matter was not able to be referred for pro bono assistance as there was insufficient time to refer before the final hearing.
- Doris has Family Court orders for access to her granddaughter Lily. Lily’s father, Michael has custody of Lily. Doris claimed that he had not complied with the access orders and she was seeking advice on enforcing them. Doris was advised by VLA that her request for assistance was rejected because VLA does not fund contravention matters due to recent funding cuts.
- Alice, an Indonesian, moved to Australia after having married an Australian man, Greg. Alice and Greg had a daughter together in Australia. The marriage broke down over domestic and child abuse. Alice had to represent herself in the Family Court (she also does not speak English). She did not really understand what was going on, and ended up signing Orders stating that she could not leave the country with her daughter. She subsequently applied for an intervention order on behalf of herself and her child in relation to suspected child abuse and there has been no contact between Greg and their daughter since then. Alice’s mother then fell unwell in Indonesia and she wanted to visit her. Alice therefore needed to get the Order varied. She had exceeded her legal aid funding cap and could not get any additional funding from legal aid. Her local community legal centre was also unable to assist. Combined assistance was secured from a specialist community legal centre and pro bono barristers.
- A 7 year old child is part of a family with a long history of family violence. Whilst interim orders in place, her father Patrick assaults her mother, Anna, at changeover. Interim Orders were suspended and changeovers were to occur at the local police station. Patrick assaulted Anna at the police station during a changeover. No ICL was appointed. The parents were ordered to attend a post separation parenting program. The parenting program provider recommended an ICL must be appointed. Support letter from provider along with lawyer’s appeal letter forwarded to VLA. After three months, the request for an ICL rejected. The matter ran to a final hearing and was settled by consent. An ICL would have assisted in dealing with the family violence issues and moving the focus on the best interests of the child much earlier than final hearing.
- A 13 year old girl is refusing to see her father, Morry. She had spent no time with Morry for nearly 2 years. Morry made an application to the Federal Magistrates Court. An ICL was ordered but not funded by VLA. All other matters could be settled except the issue of the child spending time with Morry. If an ICL had been appointed it would be focused on the child’s views. The matter still has not resolved and is going to a final hearing only on this issue. If an ICL was appointed they may have been able to get order for the child to attend counselling to deal with the issues.
- Children live with their father, Larry. There had been a long history of family violence and alcohol and drug abuse. Their mother, Cassie, made an application to spend time with her children. The12 year old had not seen Cassie for 12 months. Cassie was very concerned about the mental health of her child. An ICL was ordered by the Court but not funded by VLA. Issues with two younger children easily resolved but there was no focus on the needs of the older child. An ICL would have been able to meet with this child to ascertain if an order for therapeutic counselling was required.
Lawyers rally in support of increased legal aid funding
Over 200 lawyers and social justice supporters rallied outside the County Court in Melbourne today in support of increased legal aid funding.
The rally called on both State and Federal Governments to improve the dire state of legal aid funding in next month's Budgets.
Speakers at the rally were LIV President Elect Caroline Counsel, Former Chief Justice of the Family Court, Alastair Nicholson, Victorian Council of Social Services CEO Cath Smith and Victorian Bar's Robert Richter QC.
For a copy of Caroline Counsel's speech click here.
For a copy of Alastair Nicholson's speech click here.
For a copy of the media release click here.
State budget must support Legal Aid
Next month’s State Budget must devote more resources to legal aid funding to cope with the increased demands for legal assistance, according to the Law Institute of Victoria.
LIV President Steven Stevens said the 4 May State Budget must give more support to Victoria Legal Aid.
“Last year’s additional one-off $24.7 million funding to VLA was welcome, but it must be backed up by additional recurrent funding this year,” Mr Stevens said.
Mr Stevens said access to a lawyer was a fundamental part of the law and order debate.
“We have seen calls by the Victorian Opposition for an additional 1600 police, and tougher sentences. This will put increased strains on an already overburdened criminal defence system,” he said.
“Police, Courts, Prosecutors and defence lawyers must all be well resourced to ensure the right to a fair trial,” Mr Stevens said. He said if proper legal advice and assistance was not available to those facing serious criminal charges, there was an increased risk of a mistrial or appeal, which was expensive and created additional stress for both defendants and victims.
“We risk having one law for the rich and one law for the poor, unless those who need it are able to obtain legal aid,” Mr Stevens said.
VLA rates for criminal lawyers have not been increased in years, which has resulted in a reduction of private lawyers prepared to do legal aid work. VLA had a six per cent increase in criminal law grants, and a 10 per cent increase in demand for duty lawyers last year.
Over recent years, it has also become increasingly hard to qualify for a legal aid grant. In most cases, a person needs to be dependent on a social security benefit to meet the means test for a legal aid lawyer. People also generally have to be facing a period of imprisonment; intensive correction order or suspended sentence to qualify for legal aid.
“Other outcomes of court proceedings, such as a conviction, heavy fine or licence cancellation can have serious consquences on a person’s employment prospects and ability to travel overseas and it is unreasonable to expect that individuals will be able to defend themselves,” Mr Stevens said.
Last year, VLA received $55.9 million in State grants and $28 million from the Public Purpose fund, which consists of the interest on money held in solicitors’ trust accounts. It also received $37.5 million from the Commonwealth Government. Victoria receives the lowest per capita Federal legal aid funding, and Victoria has consistently urged the Federal Government for a better deal for legal aid funding.
Victorian legal organisations are holding a rally in support of legal aid next Wednesday, April 28, outside the County Court at 9.15 am.
Legal Aid Rally
Date: Wednesday 28 April, 9.15am – 10am
Location: Forecourt, County Court, corner William and Lonsdale Streets, Melbourne
Speakers: Former Chief Justice, Family Court, Alastair Nicholson; VCOSS CEO Cath Smith; LIV President Elect Caroline Counsel
Victorian barrister Robert Richter, QC.
The current state of legal aid funding leaves many vulnerable Australians without access to justice.
Australian lawyers and social welfare organisations have come together to address the current crisis in legal aid funding. The crisis is affecting the delivery of justice for some of society's most vulnerable members, many of whom are children caught up in family law disputes.
Our aim is to achieve:
- An adequately funded legal aid system
- A cooperative, nationally consistent and fair approach to provision of legal aid
- Access to justice for all Come and join the Rally on the Crisis in Legal Aid Funding
If you can't attend the rally, remember to write to your local MP asking them to invest more in Legal Aid, to work with the States/Territories to achieve a fairer system and to ensure broad access to justice for all.