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LIV President's Blog
March 11, 2011

Family Law Eligibility Guidelines are not fair for all

We have expressed deep concern about elements of proposed VLA’s Family Law Eligibility Guidelines. In our submission, we said that the proposals would have negative effects, including a huge increase in the incidence of self-represented litigants in court; delays in resolving proceedings; more appeals; more costs and the risk of miscarriages of justice. We believe litigation will be less child focused and more protracted and we are concerned that women will be disadvantaged. We expressed concern about a change in the guidelines for mental illness and proposals to favour VLA’s dispute resolution. We are disappointed that there is no increase in funding for family law legal aid. On the positive side, we welcomed the proposed end of the Independent Children’s Lawyer quota system; and the recommendation to reintroduce Roundtable Dispute Management (RDM) for property matters.

As a family lawyer I am all too familiar with shortage of legal aid funding in this area. There is never enough money to meet even the most urgent and pressing need, and the LIV has been lobbying hard for several years to see an improvement in Budget funding in this area. That was why we were particularly disappointed that despite the increased Federal legal aid funding of $92 million over four years, no additional funding has been allocated by VLA for family law matters. Instead, we have seen proposed Family Law Eligibility Guidelines which have merely re­­-sliced the existing pie.
There are some worthwhile elements to the draft guidelines – but they are far outweighed by negative consequences for practitioners and family law clients.
We do welcome the proposed end to the Independent Children’s Lawyers quota system. This was never in the best interests of the child and left them to the luck of the draw of how early in the month the application was made to see if it was funded or not.
However we are deeply concerned at VLA’s shift from “what we fund to who we fund” which, while providing more ICLs, will see a huge increase in self represented litigants.  Self represented litigants often wish to argue, as we know, matters that are not relevant to the actual dispute and it take a disproportionate amount of time to resolve these cases. This will result in further court delays, more appeals, more costs and the risk of miscarriages of justice. Litigation will be less child focused and it is likely that children will be exposed to protracted parental conflict.
In my experience, it is usually the woman who is likely to miss out on legal advice if legal aid funding is not made available. Women who have been at home with the children or those who do not have good English or a well paid job are unlikely to have access to funds for a private lawyer. This shift away from funding parents will have a real and serious side effect of disadvantaging women yet again in our legal system.
We have a number of other concerns relating to parenting orders and litigation grants; section 601 certificates; timing of an advice and negotiation fee and VLA’s preference for its own dispute resolution program.
Overall, we have also expressed our disappointment that there has been no improvement in remuneration for the lawyers who undertake this work at an already heavily discounted rate.
What are your concerns or are you happy with the eligibility guidelines? 

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Margaret Donoghue
Dear Caroline,

I agree with your comments as far as they go.

I'm particularly concerned about the plight of clients with mental health issues (diagnosed and undiagnosed), who often struggle with RDM and for whom the court system is bewildering, even with legal representation.

I also think it is time for a complete review of publically subsidized legal services in the family law area. Where has that $92 million gone? It seems to me that, over the last 10 years, providing funding for clients has diminished, and this can't be explained by an increase in costs paid to us!
VLA have been able to put significant resources into their own organisation both in terms of new offices and the new ATLAS system. I question whether this really does help provide representation or advice to more clients.
The whole rule of law depends on people having faith that the legal system works for and applies to them. Our legal system, with its tailoring and subtelties is complex. Our profession performs a really important role in helping clients through it; this needs to be remembered to VLA!
25/03/2011 3:36:00 PM

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