Trial By Legal Aid: A Legal Aid Impact Study
Billi Clarke and Helen Matthews with assistance from Amanda Jones
Crossroads Family & Domestic Violence Unit & Victorian Women’s Refuges and Associated Domestic Violence Services (VWRADVS) Legal Sub-group. Published by Crossroads Family and Domestic Violence Unit and Victorian Women’s Refuges and Associated Domestic Violence Services Legal Sub-Group, PO Box 2027, St Kilda, Victoria 3182, Australia. First published 1999 © Crossroads Family and Domestic Violence Unit & Victorian Women’s Refuges and Associated Domestic Violence Services Legal Sub-Group1999. Printed copy: Typeset and designed by Vanzella Graphic Design. Printed by Currency Productions
Acknowledgments: This project was funded by the Victorian Women’s Trust, and Victorian Women’s Refuges and Associated Domestic Violence Services (VWRADVS)
CONTENTS
Foreword
Preface
Glossary
Introduction
Project methodology
Case studies
Conclusion and recommendations
In the past few years the availability of legal aid throughout Australia has been significantly reduced. This has had an impact on all areas of law, but it has been particularly damaging in family law, where aid for adults and for the representation of children has become subject to stringent and often inflexibly administered guidelines.
It must be assumed that women and men for whom aid is denied must either abandon a claim that may be quite legitimate, or remain unrepresented. This presents inordinate difficulties at a time of great distress, and puts additional pressures on both the Court and the lawyers acting for other people in the dispute. It inevitably increases the opportunities for delay and reduces opportunities to settle disputes.
Family law matters tend to be both bitter and legally technical. They are usually of such a nature that persons acting for themselves can rarely do adequate justice to the case they want to present. In addition to the normal difficulties presented by court appearances and the preparation of the necessary paperwork, the nature of family law disputes makes it almost impossible for previously intimate partners to negotiate with each other, or examine or cross-examine each other in an objective, effective or meaningful way. When there are allegations of violence or child abuse the position becomes even more difficult and the more vulnerable person may be further intimidated. If children’s welfare is somehow in dispute and they have no one to act for them, there can be no meaningful cross-examination of witnesses by anyone and their circumstances are extremely difficult to establish.
At an earlier stage of proceedings, settlements can often be reached by lawyers who are skilled in negotiating and are able to argue with objectivity. It is understandable that people with a high level of animosity towards each other cannot take advantage of this opportunity, and they risk pursuing unnecessary litigation as a consequence, with all the difficulties and distress which accompany it.
The various difficulties which legal aid restrictions present are vividly illustrated by the eight case studies which form the basis of the Crossroads Legal Aid Impact Study, Trial by Legal Aid.
The experiences of the women in the study provide poignant and powerful reminders of the impacts of the withdrawal or unavailability of aid on them, and on their immediate families. They illustrate the vulnerability of those who live in already precarious environments, whose lives have been characterised by violence, and who are trying to care for (and often protect) young children. It might be concluded that the fact that thes women are lacking in both influence and financial resources is by no means coincidental.
Of course, the circumstances of particular sub-groups provide even more disadvantages to those who are already without access to legal information and representation. The case studies show how gender, ethnicity, lack of English and geographic isolation compound the women’s already considerable difficulties, and allow what might be short-term disadvantages to develop into far more long lasting and damaging experiences.
The accounts also demonstrate how the legal system is in itself constrained in the ways it can ameliorate the lack of legal aid. Judges cannot become too involved without appearing to be less than objective, lawyers for other parties have an overriding obligation to their own clients, and procedures cannot be circumvented in order to assist one or other disputant. I was gratified to see that in several instances judges had been aware of the circumstances of an unrepresented litigant and had done all they could to minimise any disadvantages that flowed from this. Nevertheless there are distinct limits to what can be done in this regard and there is a risk of unintended injustice if proceedings are truncated. Some solicitors and barristers had also provided invaluable pro bono assistance when aid had been refused or had run out. Similarly this cannot be assumed, nor should it form a fair or appropriate basis on which to develop legal aid policy.
The case studies in Trial by Legal Aid also indicate how family law disputes can be serial in nature, can develop over fairly considerable periods of time and fail to fit into discrete categories for the purposes of aid allocation. For example, a contact refusal may stem from fears that a child is being abused, which in turn leads to proceedings involving State child protection authorities. Simultaneously (and possibly feeding the other problems) property proceedings are underway—and as these scenarios graphically describe—women are often unable to obtain any aid when there is a prospect of their receiving a property settlement at a later date. Such problems are compounded when the other party—most commonly the male former partner—has access to more resources and can ‘play the system’ to drag out proceedings and exhaust the other’s legal aid. The current system also attempts to second-guess the merits of particular claims, with the unsuccessful applicant having no meaningful right of review.
Not surprisingly, it is the more complex matters that are the most expensive and the ones in which the cap is most likely to be reached. Yet, these same disputes so often involve serious issues of abuse and other risks that, as the case studies show, require serious examination.
Studies such as Trial by Legal Aid complement the statistical material that is collected by various agencies such as the Family Court. From these we have become aware that in thirty-five per cent of matters in our court one or both parties are unrepresented. Figures such as this are important as they help to explain the calls on Court services for additional information, and they also contribute to an explanation of why settlement rates are reducing. However they do not, and cannot, provide an understanding of the extent to which such denials impact on the lives (and indeed the safety and wellbeing) of families.
Whilst we would all agree that public expenditure must be carefully regulated, the consequences for these women of their being refused access to any or adequate legal aid can only be described as disastrous and unfair. The accounts of people and their experiences must count for something in a society which has more than adequate resources to go around, and which, in theory, emphasises the importance of equitable access to justice.
The Hon. Alastair Nicholson AO RFD (Chief JusticeFamily Court of Australia)
One of the aims of this project was to involve as many individuals and services as possible. There were so many people who supported and assisted in this study and their generosity turned Trial by Legal Aid from an idea into a finished product.
We would like to thank the women whose experiences are documented as case studies in this project. All these women wanted to tell their story simply because they wanted to prevent similar difficulties happening to other women. They wanted nothing in return except the chance to make a difference. While they are not identified in the case studies, they know who they are; and, although for many of them the story continues, they should be proud because it is because of their willingness that we have an opportunity to possibly change a small part of the world.
The Victorian Women’s Trust gave hope to the whole idea by funding the project. We would especially like to thank Linda Jaffe who personally donated the funds that financed this project. Right from the start the Trust believed in the project, and we acknowledge Trisha Pinto whose openness and warmth made it all very easy.
Thank you to the Honourable Alastair Nicholson, Chief Justice, Family Court of Australia who wrote the Foreword to this document. We thank him not only for this contribution but also for his general commitment to the notion of making our justice system a fair and accessible one. We also thank Margaret Harrison, his Senior Advisor, for her assistance and support.
Next we thank the members of the Victorian Women’s Refuges and Associated Domestic Violence Services (VWRADVS) Legal Sub-Group who encouraged and advised on the project.
This group has been responsible for many initiatives that have brought about change. Their shared philosophy was one of the catalysts for this study. Appreciation is also given to the general membership of VWRADVS who financially contributed to the cost of producing this document.
Appreciation also to the family Violence Prevention and Support Program who assisted with printing costs.
To Alla Mikhailov who provided free interpreting, translating and wholeheartedly supported the idea, we offer thanks.
Special thanks goes to Marriner Theatres who generously provided the venue for the launch of this study, and to Zeal Theatre Group who gave us an artistic look at the experience of women with their performance at the launch.
Many thanks to The Salvation Army Crossroads Network, St Kilda, who contributed funds, worker time and office space. To Doug Parker, Jenny Plant and Lisa Harris, a personal thanks for their continued support and inspiration.
To Amanda Jones from the Crossroads Network who wrote the methodology and who came to our rescue, giving us structural help and an insight into our broader aims. In the final stages of the project Amanda worked long into the night and made a major contribution to the finished document. Thanks mate, we owe you one.
Our appreciation to Joan Kirner, who showed genuine and open support, and who seems to have no idea what an inspiring role model she is.
Many thanks and appreciation to Susan Funder who very generously agreed to edit the document at the very last minute and who never complained about receiving handwritten eleventh-hour inclusions.
Our appreciation is given to the following individuals and services for their assistance, support and encouragement:
Pearson’s Barristers and Solicitors, Leanne Abella; Hale and Wakeling Barristers and Solicitors, Susan Wakeling; Fitzroy Legal Service and the Federation of Community Legal Centres; Vig Geddes and Jenny Nunn from the Domestic Violence and Incest Resource Centre; Mallee Domestic Violence Service; Central Highlands Legal Service; Gwyn from Eastern Domestic Violence Outreach Service; Women’s Health in the South East; Margo from The Women’s Place in Morwell; staff from Salvation Army Services—Mary Anderson Lodge, Inner South Domestic Violence Service and Crossroads Family and Domestic Violence Network; Sally Finn; Spur Montana; and the membership of the Family Violence Protocols Committee.
To all involved, we offer our deep felt appreciation for your contribution to this study, Trial by LegalAid.
Billi Clarke
Some of the terms used in this study are explained below.
- child representative—court appointed lawyer whose role is to represent the interests of the children who are the subject of a dispute in the Family Court.
- confidential counselling—a meeting between separated parents who are parties to a dispute over child residence, welfare or contact, and a court appointed counsellor, the details of which are not made known to the court. The primary purpose of the meeting is to assist parties resolve the dispute.
- contact/access—time spent by a child with non-residential parent.
- contempt proceedings—application to the court for sanctions against a person, including fines and imprisonment, for failure to comply with court orders to which that person is subject.
- cross-examination—questioning of a witness during a court hearing with a view to undermining their previous evidence or credibility.
- ex-parte proceedings—court hearing in the absence of one of the parties to a dispute which usually occurs because of the urgent nature of the application before the court.
- intervention order—order made in a Magistrates Court restricting the behaviour of the individual named in the order, to protect the applicant for the order from harassment, assault, property damage, etc.
- pro bono—literally ‘for the good’; legal work done by a solicitor/barrister without fees being charged.
- property settlement—distribution of assets between separated partners, either by agreement or court order.
- residence/residency orders—court orders prescribing with which parent a child is to reside.
- supervised contact—contact between a child and non-residential parent which can only take place in the presence of another adult.
- welfare report—written by a Family Court appointed counsellor based on interviewing, and observations of, the parties to a dispute and their children, which is provided to the court to assist in determining the outcome in disputes over child residence, welfare or contact.
In June 1996, the current Commonwealth Government of Australia made the decision that it would no longer continue with the legal aid funding agreements it had with the States and Territories. In August of that year, it was officially confirmed that between 1997/98 and 2000/01 an amount of $100 million would be slashed from the overall legal aid budget.
Access to legal aid in Victoria was significantly affected. Fee ceilings were introduced in criminal trials and a capping of $10 000 was set for Family Law grants. An initial ceiling of $15 000 was set for all existing grants of assistance.
Prior to these cuts, there was a perception by the community that legal aid would be granted to assist in difficult and complex family law circumstances, such as where relationships involved domestic violence. However, these new budget cuts and accompanying guidelines brought about a stricter judgement process by the Grants Division in relation to determining the merit of individual applications. Applicants for legal aid now fell into one of three categories: they were either denied legal aid outright; they were granted legal aid with the requirement that it was repaid; or they were granted legal aid for specified purposes approved by Victoria Legal Aid (VLA), which may or may not require repayment. On whatever basis the grant was made in family law matters, the total amount of funding potentially available to the claimant was now capped at $10 000.
The new system seemed to fail to take into account the particular nature of domestic violence cases. The very fact that domestic violence has occurred should clearly indicate that an imbalance of power has characterised the relationship and that this imbalance is likely to extend to the court system. Negotiated agreement is how most family court matters are resolved. In domestic violence cases, however, there is typically a high degree of conflict that impedes or complicates this process at every stage.
The cuts had an immediate impact on many existing cases, and for many pending cases, there was no time to prepare for alternatives to the anticipated availability of legal aid.
Over a period of time it became increasingly evident that these budget cuts were having wide-reaching consequences. Legal practitioners and support workers were observing that it was becoming increasingly difficult to gain legal aid funding, whether it was to obtain it outright for worthy cases, for specific areas of a case which were perceived as worthy of aid, or for sufficient funding to pursue a case to its conclusion, beyond the now non-negotiable capping figure. Women were thus more likely to find themselves going to court entirely unrepresented, losing their representation part way through their litigation, or unable to pursue anything other than the proceedings prescribed by VLA.
In one of the worst scenarios a woman could find herself going to court unrepresented, having to face the perpetrator of violence against herself and possibly their children, and having to cross-examine and be cross-examined by him. The distress and intimidation of such an experience could be compounded for women of non-English–speaking background.
In the words of one woman,
"The hardest thing is having to go before the registrars, who are not happy that I am not represented. I do not know how to tell them what‘s before the court. I didn’t know I had to have a list of witnesses ready. The registrars are not happy with me. They refer to form numbers that I have to file, but numbers mean nothing to me. I only get a letter telling me that there is a hearing date, but not what is involved or is meant to have been prepared."
Domestic violence workers were concerned from the outset that these economies could have serious consequences for women who were victims of domestic violence seeking legal redress. The Victorian Women’s Refuges and Associated Domestic Violence Services (VWRADVS) Legal Sub-group has continually lobbied around the legal aid issue. Meetings were held with the appropriate ministers, discussion papers were written, and membership was gained on the Victoria Legal Aid Community Consultative Committee, but all to no avail.
It has become clear that this effort needed to be based on evidence more substantial and empirical than the extensive anecdotal evidence, however widely reported, of practitioners in the field. There were no documented studies available which sought to describe and analyse the impacts of the changed legal aid system on women victims of domestic violence.
Consequently, the decision was made by members of the VWRADVS Legal Sub-group to apply for funds to undertake a case study project, specifically to document the experience of women and children who had reached the legal aid fee capping level, been granted partial aid only, or were denied aid outright, in relation to their domestic violence case.
Obviously the impacts of the cuts to Victoria Legal Aid are felt generally across a range of groups in the community; however, VWRADVS Legal Sub-group, in seeking to represent specialist services that support, accommodate and advocate on behalf of women and children who have experienced domestic violence, have focused on women and children only.
The purpose of this study, then, is to describe and analyse the ways in which denial of legal aid, or granting of insufficient legal aid funding appears to have impacted critically and negatively on these women’s experience of the legal process, and on the outcomes of their cases.
The project used a multiple case study design.
A purposive sample was sought of women engaged in legal proceedings relating to their experience of domestic violence who:
- were refused access to legal aid outright; or
- were refused legal aid to pursue the specific legal order they sought; or
- had reached the legal aid capping figure while still involved in litigation.
Women’s refuge services, domestic violence services, community legal centres, and private legal professionals practising in family law across the State were contacted by letter. Their assistance was requested in identifying and approaching women who were current or former claimants, and who, since the changes to legal aid, fell into any of the above categories, and who might be interested in participating.
Practitioners initially gained informed verbal consent from women to provide information about their case to the project workers for further consideration. A referral form was developed for practitioners to this end. This included a brief explanation of the circumstances of the case. The project workers then contacted the women by telephone to further discuss their story and brief them on the nature of the project. In some instances, the referring practitioners were consulted further about cases, to assess their suitability for inclusion. Several potential cases were excluded at this stage, on the grounds that the woman’s dispute with VLA was ongoing, the case was still too emotionally charged for the woman to comfortably share her story, or there were some doubts as to whether the adverse experience and/or poor outcomes were due to difficulty with legal aid. The project sought to involve women from a range of backgrounds, including women of different cultural backgrounds, and women residing in both metropolitan and non-metropolitan areas.
There were fewer referrals than expected, for several reasons:
- some women expressed concern about whether confidentiality could be maintained given that their cases were ongoing;
- the period for locating the women coincided with the busy Christmas school holiday period;
- it depended on legal practitioners agreeing to spend time locating and informing former clients about the project.
Ten cases were identified as suitable for inclusion, and each of the ten women gave written informed consent to participation. However, two women decided to withdraw before the final draft report was completed. One woman withdrew because she had lost hope generally in the possibility of any positive outcome both for her own case and for the project. The other woman was engaged in ongoing litigation and, in the course of the project, had made a final appeal to legal aid. She consequently became concerned that her participation in the project might become known to VLA, and possibly jeopardise her chances to succeed in her appeal. The loss of one of these cases, in particular, was unfortunate, as it highlighted the additional complications associated with trying to access legal support while residing in a small rural town. The eight remaining participants included one woman from a non English–speaking background (requiring an interpreter), one woman for whom English is a second language, and six Australian-born women. Two participants resided in regional Victorian centres, the remaining six in metropolitan Melbourne.
The data-collection methods included multiple, semi-structured individual interviews, both face-to-face and telephone-based, consultation with practitioners and support workers, and review of legal case files and other associated documentation. Telephone-based interviews were conducted with those women who resided in regional Victoria or who could only be contacted after-hours. Face-to-face interviews were taped and transcribed. Participants were given the option of deciding where the interviews would take place, and who would accompany them, if so desired. Most interviews took place in the office of the woman’s current support worker.
The interviews sought information about:
- the history of the relationship prior to and after its breakdown, including issues associated with children;
- the circumstances of the domestic violence;
- the evolution of the family law proceedings;
- the dealings with legal aid;
- the support services sought and gained; and
- associated issues that might bear upon the case and the woman’s life after the conclusion of the case.
Documenting the experience of the women themselves was supplemented by review of the available legal documentation, and by consultation with legal practitioners and support workers who were still associated with the women. In most cases the women themselves had access to their legal files, because they were no longer being represented, they were representing themselves, or the case was concluding.
Draft case studies were prepared and a copy then provided to each participant by mail. A phone-in time was organised to enable participants to discuss any concerns and recommend changes. Each final ‘draft case study’was given approval by participants. The names of the participants and family members were changed, as was other key identifying information, to protect their confidentiality.
An analysis and legal interpretation was then undertaken to identify critical issues in the woman’s experience of the process and/or outcomes of legal proceedings associated with her legal aid difficulties.
Kate was just eighteen when she married Brian and was only nineteen when she had her first child. It was when she was pregnant with her third child that Brian started abusing her. He would push her around, throw her across the room, frequently verbally abuse her, criticise her appearance and undermine any feelings of self-worth by telling her that no one else could possibly want her. At the same time, he displayed quite irrational jealousy and possessiveness.
They had moved to a country town, Brian’s home town in rural Victoria, where his family lived and he had obtained work. Kate’s family and friends resided in Melbourne. After a while Kate took up part-time work and it was here that she formed a relationship with a man who was also married. The affair was short-lived. Despite her infidelity she was committed to her family and making her marriage work; at this stage, she was again pregnant with her fourth child.
Kate did try to tell Brian of the affair but he found out from a third party quite sometime later. He reacted violently, punching Kate in front of the children. At one stage he threatened her with his gun. Kate agreed to do whatever was needed to keep her marriage together. Her strongly felt guilt and her fear of Brian made her vulnerable to what she now sees as Brian’s manipulation. She had been suffering post-natal depression after the birth of her fourth child, and Brian suggested they temporarily separate to sort things out. He insisted she should move out, as she was the guilty party. He did not want the children to be disrupted so they stayed in the house with him. He did not let her take the baby, only seven months old, as this could have made the other children jealous. He assisted Kate to move, steering her towards a two-bedroom flat which could not accommodate her four children. He said the separation was only temporary.
Kate believed they were in the process of rebuilding their marriage. They made plans for their future and she underwent a sterilisation procedure. For most of the time during the trial separation, Kate would look after the baby and, outside of school hours, the other children. She saw them everyday, and their father, and prepared the evening meal. She and Brian at times slept together. Kate believed the separation was temporary. Soon they would be back under the same roof and she felt Brian was wooing her back. However, soon after separating, Brian had requested through his solicitor an interim residence order. At first Kate sought legal advice and was granted legal aid to contest the application. Brian told Kate he needed the order for Social Security purposes. He persuaded her to sack her solicitor and against the solicitor’s advice, she withdrew any opposition and signed the consent orders. She continued to see her family every day.
It was quite some shock to Kate when she discovered Brian was leaving the area with the children and moving to Melbourne to live with his girlfriend; one of the children told her that Brian was in Melbourne moving their furniture. Kate challenged him on his return and he became violent. He left with the children, the youngest only twelve months old, and again Kate sought legal advice. Her new solicitor applied for legal aid to fund residency and property proceedings. Victoria Legal Aid was reluctant to fund the matter, as it was likely that Kate would benefit from a property settlement. Kate’s solicitors were not prepared to act for her on the basis of delayed payment of costs from a property settlement, however after delay of nine months, legal aid was granted.
Proceedings were issued on Kate’s behalf and Brian was eventually served with the relevant documents. There were several attendances at court for interim and procedural steps. Much time was spent negotiating times for Kate, at this stage living in Melbourne, to be closer to the children.
Kate had contact with her children, but at handover times Brian was difficult and aggressive. Kate struggled to maintain accommodation, which would house her four children, and ultimately she failed to do so. Her limited income from working went on rent, child maintenance and servicing her car loan— needing the car to transport the children for contact visits.
Despite the sterilisation procedure, Kate became pregnant again. Illness associated with the pregnancy forced her to stop working. She fell behind in her car payments and the car was repossessed. Kate’s fifth child was due when the final hearing of her Family Court proceedings was listed. The case was deferred for a few months. VLA no longer considered Kate could succeed in her application for the children to reside with her and funding for residency was discontinued.
Funding was then completely withdrawn just prior to the hearing. However, at the persuasion of Kate’s solicitors, aid was restored for the property proceedings only.
At the hearing, Kate’s application for residency was withdrawn without reference to the fact that her legal aid funding for residency orders had been withdrawn. Arrangements for her contact with the children and other child-related matters were quickly negotiated by the lawyers. The property case, which basically involved the family home and two cars, took five days. In the course of the hearing, VLA said that as the matter had not been settled, they would fund only two days of the hearing.
Ultimately, the court ordered that Kate receive $15 000 and a few personal items still held by Brian. Ensuring that the orders were carried out has involved further legal costs.
VLA required payment of $5000 of their costs and this has been deducted from settlement monies received. Kate’s solicitor’s bill is a further $7500, which is also to be deducted from settlement monies. The remainder is insufficient to cover the amount owing on the car loan. Kate is facing bankruptcy. VLA refused to reduce their required repayment.
Kate’s problems don’t end there. With her baby, she moved away from Melbourne to obtain more affordable rental accommodation. This has made her contact with her other children more difficult, and more costly. As well, Brian has chosen to interpret the contact orders so that Kate sees the children for only one week of the six week Christmas holiday period. It is a new way to abuse her. Kate has no legal aid to enforce contact in accordance with the court orders.
Commentary on critical issues:
- The priority of the mother in this case was to obtain residency of her children. She was not given the opportunity to have her case argued before the court because VLA determined that she was unlikely to succeed.
- A factor in the determination by VLA that the case lacked merit was in regard to the ‘status quo’; that is, that the children had become established in the care of their father. The delay in granting aid contributed to the setting up of the ‘status quo’.
- A high level of repayment of funding was required by VLA despite there being no real benefit gained from property proceedings. Difficult circumstances such as those described here were taken into account under the previous legal aid system.
- The mother has no legal aid to enforce contact in accordance with the court orders.
Jocelyn and David commenced a relationship in 1981. They had three children. Throughout their relationship there were numerous violent outbursts from David, which lead to separation. They were finally separated in 1992.
When David drank too much he would become very aggressive. He would abuse Jocelyn both physically and verbally. Jocelyn was lacking in confidence and put up with his rages. He was caring towards their children, three young girls close in age, but on one occasion after he had been drinking, David lost his temper with the youngest child. She had broken something of value and he reacted violently. He treated her so roughly that Jocelyn knew it was time to leave.
The children went with Jocelyn and David had regular access. Jocelyn and David seemed to manage their separation quite well. They had sold their suburban Melbourne home and agreed that, as Jocelyn was renting a Department of Housing Property, David could have most of the proceeds of the sale of their house to buy a house which ultimately would be left to the children. Jocelyn’s portion enabled her to purchase replacement household goods and furniture.
During 1995 the agreement regarding the children broke down. David had commenced a new relationship and had become a ‘born again’ Christian. He now wanted the children to live with him. He accused Jocelyn of witchcraft and of being involved in the occult. He accused Jocelyn and her boyfriend of sexually abusing the children, the eldest of whom was only seven years old. Jocelyn has always denied that that there is any truth in these accusations.
David applied to the Family Court for residence orders for all three children. Jocelyn received legal aid funding to make a cross-application. A child representative was appointed by the court and funded by Legal Aid.
The children had been interviewed at a child sexual assault clinic. The resulting report did raise concerns regarding sexual abuse and a notification was made to Department of Human Services, child protection division.
In the Family court after a four-day hearing, orders were made granting Jocelyn residency of the children and David standard contact. Quite clearly, the court did not find that the children were at risk while in Jocelyn’s care. Despite this, a representative from the Department of Human Services who was present in the court immediately took steps to issue a care and protection application in the Children’s Court. After a two-day hearing, the Children’s Court Magistrate ordered that the children were to reside with David, and Jocelyn was to have contact as arranged by the department. Jocelyn immediately lodged an appeal through her solicitors.
The County Court appeal was listed for hearing a few months later. While waiting for the appeal, Jocelyn only saw her children once and that was at an office of the Department of Human Services. Jocelyn was devastated by the loss of contact with them. Concerned that the relationship was quickly breaking down, she made every effort to increase contact but found it very difficult to get any co-operation with the Department.
Jocelyn’s relationship with her boyfriend ended under the pressure of the accusations. Although Jocelyn never believed that her boyfriend had done anything wrong, she could not risk further allegations and the return of the children was her priority.
When the County Court appeal was finally heard, it took eight days. David had extended his accusations to other members of Jocelyn’s circle—her friends, family and neighbours. All were called to give evidence. No specific findings were made against Jocelyn or any of the other people accused of abuse or occultism. On the basis of a psychologist’s evidence, a finding was made that one of the children had been sexually abused. There was no physical evidence and no specific finding was made as to when, where or by whom the girl had been abused. However, the appeal was unsuccessful. The children remained with David and the court recommended that Jocelyn was to have increased contact with the children as arranged by the Department of Human Services.
Jocelyn’s lawyers considered the outcome grossly unfair. Her solicitor sought further legal aid funding but was refused. At this stage, the fee capping guidelines had been introduced, and as they operated retrospectively, Jocelyn was now ineligible for any further legal aid.
The contact that the Human Services Department was to arrange did not take place. Jocelyn made many attempts to initiate contact with her children through a protection worker but, in her words, ‘she was always put off’. At the time Jocelyn was interviewed for this publication, she had not seen her children for over three years.
Not long after the County Court appeal there were more Children’s Court proceedings. A priest had advised the Department of Human services that David wanted to put the children through an exorcism. The department applied to have the children removed from David’s care and they were placed in temporary foster care. Jocelyn attended the hearing and was represented by her barrister who charged no fee. At a subsequent hearing in the Children’s Court the children were returned to David. Jocelyn had received no notification of the hearing. The children also made disclosures of sexual abuse by the foster parents. Jocelyn believes that, all along, David has coached the girls into making the accusations against her and, quite probably, against everyone else.
In August 1998, Jocelyn issued Family Court proceedings to obtain at least some contact with her children. She had no legal aid and still could not afford to pay for a lawyer privately. She had to relocate to a rural town for affordable housing and was unemployed. Distance, isolation and lack of resources all combined to create a situation that meant that Jocelyn had been unable to access legal avenues any sooner.
With the help of her former lawyers, who again charged no fee, she prepared her own Family Court documents. She is currently acting for herself, and so is David who is contesting her application. The child representative, who at an earlier stage had reached the legal aid capping fee, had withdrawn from the proceedings. However, he was re-appointed, the VLA choosing to treat the matter as a separate application, and a further grant of aid was allocated. A welfare report by a Family Court counsellor was ordered and has been completed, and the case awaits its final hearing.
Jocelyn is confident that her application will have the support of the child representative and the Family Court counsellor. She is very worried about the effect that living with their father has had on the children, and on their attitude to her. Documents subpoenaed from the Department of Human Services include references to David’s psychiatric condition, which add to her concerns.
Commentary on critical issues
- The capping of legal aid became a condition of all grants made in Family Law cases. The fairness of applying that condition retrospectively is questionable.
- It is inappropriate for VLA to include child protection proceedings, initiated by a State government department, in its definitions of family law matters to which funding limits apply.
- VLA has been inconsistent in its approach to funding the renewed proceedings in this case. The re-appointed child representative has received a second grant of assistance whereas the applicant mother has not.
- In complex matters, such as in this case, it is burdensome for the court to ensure fairness when a party is forced to act as their own advocate.
Mary and Bradley met in 1989, a relationship developed and they were soon living together. Mary had a child from a previous relationship, three-year-old Veronica. Veronica’s father had very little contact with his daughter; he is not relevant to this case.
Mary and Bradley lived together for several years and had a child, Christine. The household was turbulent and Bradley was regularly violent towards Mary, and the elder child, Veronica. Mary gradually summoned the strength and took steps to remove Bradley from the home.
Mary applied for and was granted an Intervention Order against Bradley covering herself, and she later applied for another order to include Veronica. Bradley twice breached the order in respect of Veronica, and as a consequence Mary and the two children were accommodated in a women’s refuge. Legal proceedings in relation to the breach went ahead, but Veronica’s evidence was not corroborated and the charges were dismissed. Throughout this process there were multiple attendances at court and Mary was granted legal aid.
Bradley was having contact with Christine during this time and at one stage failed to return her to Mary’s care. Legal aid was granted for Mary to issue Family Law proceedings for residence orders. Bradley lodged a cross application in respect of both girls, and the early court appearances resulted in interim orders, which gave quite him generous contact with Christine, a pre-schooler. Veronica, however, was refusing any contact.
The matter returned to court several times. A child representative was appointed, and a welfare report ordered. Bradley sought contact with Veronica and procedural steps taken. Each step involved legal representation, the costs of which came out of legal aid funding.
The most significant development affecting the case occurred while Mary and her children were residing at the refuge. Veronica disclosed that she had been sexually abused by Bradley while they were living together as a family.
The Department of Human Services, the police and a sexual assault clinic followed up this disclosure over a period of some months. Mary’s solicitors advised her to delay any legal action until investigations were completed and the disclosure confirmed. Veronica was not having any contact with Bradley at this time, but she was fearful for her younger sister. Christine’s contact continued until the sexual assault clinic advised that contact should be suspended. Mary changed solicitors, the court was notified about concerns regarding risk to the children, the Department of Human Services became involved in the court proceedings, and physical contact was suspended. Telephone contact, however, was maintained.
There were a number of court hearings that attempted to put supervised contact in place. Supervision was to be by a member of Mary’s family, and Bradley brought along members of his own family to ‘even the score’. Supervised contact did not continue, however, as Bradley would not agree to any form of supervision. More legal aid funds were eaten away.
During these proceedings Bradley was living with members of his family who were paying his legal costs. After Bradley’s contact ceased, they launched separate proceedings in the Family Court seeking contact for themselves with Christine. By this stage Mary’s legal aid was greatly depleted. It was clear that the matter had become so complex that a negotiated settlement of the dispute was impossible, and a decision by the court in a final hearing was required. Mary had to contest these additional proceedings herself without legal representation. After some delay, the court directed that the family’s application be heard with the original matter which was approaching final hearing.
The $10 000 legal aid limit was not going to last until the completion of the case. Mary’s income as very limited and she was unable to meet the legal costs privately. She took on more responsibility for her legal work. She attempted, with the help of her support worker, to prepare final trial documents as required by the court, but the task was overwhelming. Her solicitor prepared the documents, taking some shortcuts, without payment from legal aid or Mary. The solicitor wanted to save some funding for the actual court hearing. The insufficiency of the grant of legal aid was raised in the documents.
When the case started, approximately twelve months after contact had been suspended, there was only sufficient funding for the barrister to appear for Mary for one day. Quite obviously, the trial was going to take longer than this. Mary was expecting to have to appear for herself, and to try to cross-examine witnesses, including Bradley.
By this time it was 1998, and the problems with legal aid funding levels were well known to members of the Family Court. The judge in Mary’s case wanted to avoid proceeding with an unrepresented party. In his final orders his Honour stated that the Legal Aid Commission through the lack of appropriate funding levels provided by the Commonwealth Government in this particular case have seen fit to terminate the representation of the mother in the proceedings. It is absolutely essential she be represented and that the representatives explain to her the ramifications of the judgment and the orders that I choose to make. So I am anxious to deliver the judgment in the matter whilst they are still able to provide her with appropriate advice.
The judge had read the documentary material filed by the parties and took steps to conclude the matter quickly. The concurrent application of Bradley’s family was dismissed. The outstanding application regarding Veronica was dismissed. The only issue was Christine’s contact. Supervised contact was not going to work. The question for the court to consider was reduced to whether the risk of Christine being harmed or abused during contact was greater than the harm to her from being unable to continue her relationship with her father, a relationship she wanted. To save time, few witnesses were called, and reports were relied upon without evidence being given in person.
The matter concluded the next day and Mary’s barrister appeared for no fee. Without going into his reasoning, the result was that contact should occur with some safeguards. These included:
- overnight contact for six months;
- counselling for the child and the parties;
- the child representative to continue to be involved; and
- the presence of an adult female at certain times during contact.
Mary was thankful that the judge had considered her legal aid problems and sought to resolve the matter quickly. However, she was not satisfied with the outcome or the adequacy of the safeguards. Not all of her concerns could be canvassed, nor could sufficient evidence be put before the court in such a hasty trial. She still has to deal with a distressed child who is sick with fear for her young sister. She still has to deal with doubts about her child’s safety. Should something go wrong, she no longer has access to legal aid.
Commentary on critical issues:
- Reliance on limited legal aid provides the opportunity for manipulation of the system by more adequately resourced parties.
- There is pressure on the courts to compensate for inadequate legal aid funding.
- With no opportunity for the full evaluation of evidence, parties can be left feeling dissatisfied with the process and with doubts about outcomes.
- Once the legal aid capping has been reached, enforcement of orders may not occur.
Margaret’s first marriage was to an abusive man with a drug and alcohol problem. They had two children before separating. She then developed a relationship with Tony, and six months later she and the children moved in with him. This meant relocating from their hometown of Melbourne to a distant, Victorian rural centre. Nine months later Margaret and Tony were married.
Tony had a sizeable business that he operated with members of his family. Tony and Margaret lived on the business property in a small house that had been extended and renovated by Margaret’s father. Margaret also worked in the business. She was paid a wage, however Tony used to collect it from the pay clerk and Margaret would never see it.
Tony completely controlled their banking and finances. Once Margaret had moved in with him, he set the rules as to what she could and could not do. He would remove her car keys, cut short her telephone conversations, and even stop her going to the supermarket. Visits from Margaret’s family became less frequent because Tony’s behaviour made them feel so uncomfortable. He also interfered with the children’s contact with their natural father. He physically and sexually abused her, as a result of which she had no confidence or self-esteem. She left once, but came back and was punished by Tony for her actions.
Then in 1995 Margaret and Tony had a baby, Lucy. When Lucy was less than eighteen months old, Margaret took all three children, left the family home and ended the relationship. She sold some domestic animals that she had bred, and managed to accumulate enough cash to finance her move. She remained in the same town as her husband.
The Family Court had sittings in the region twice a year for a period of approximately two weeks. Tony had made no contact with Margaret for one month and then initiated Family Court proceedings. He wanted custody of Lucy and access to Margaret’s two other children. The first day in court was in November 1996.
Margaret had been to a solicitor and applied for legal aid funding. Her only income was the Supporting Parents Benefit and she could not afford to pay for a solicitor privately. Her application for legal aid was rejected because she was expected to receive an ample property settlement from which her legal costs could be met. Without legal aid funding, Margaret’s lawyer required an up front payment of $1000 to cover the costs of initial court documents, and to pay a barrister to appear in court on the day. Margaret borrowed the money from her mother.
Because of the limited court time available, Margaret was under pressure to reach agreement regarding the children. She consented to orders for contact between Tony and Lucy that she later regretted. Her barrister suggested she agree to more contact than she wanted, in the hope that Tony would then give up his application for residence orders. This did not occur, and he pursued the matter.
Margaret’s eldest child refused to see Tony at all. The second-to-eldest child was included in the contact orders but only went once. It was eighteen months before Tony stopped pursuing contact with the older children.
Margaret had an interim order for Lucy to reside with her and the matter, along with the property settlement application, was adjourned until the next sittings in March 1997.
Margaret again applied for legal aid but was refused. Her solicitor was now acting for her on the basis that she and her barrister would be paid out of the anticipated property settlement.
At the March hearing, Margaret sought to reduce the frequency of contact because of Tony’s abusive behaviour when he came to pick up Lucy. She also wanted to pursue property settlement negotiations. Little was achieved and the matter was again adjourned until October 1997.
At the October sittings, Margaret had to deal with a second court application. Her former husband brought proceedings because contact with his children had ceased. Margaret again applied for legal aid to deal with this separate matter, but aid was denied.
The older children were interviewed by a court counsellor. They disclosed abuse by their father. He was denied contact with them other than by telephone and was advised to undergo anger management treatment.
As time past, there was no progress made in relation to the property settlement between Margaret and Tony. The necessary financial documents from Tony regarding the business were not filed. Margaret’s solicitor could not overcome these stalling tactics.
At the next court date in early 1998 Margaret withdrew her claim for a property settlement. She had amassed $9000 in legal costs. The matter was not yet ready to be determined by a judge. Margaret could not afford to let her debt get any higher. The anticipated property settlement did not eventuate. Margaret received nothing.
Their final day in court was late in 1998. Tony knew Margaret couldn’t afford the legal costs. He was again trying to exercise control over her. Final orders were made by consent, setting out Tony’s contact with Lucy who was to reside with Margaret. Margaret has to give Tony ample notice of any intention to move out of the area. She knows he would object.
Since then disputes about Lucy have continued. Tony is still abusive and controlling.
Margaret’s solicitors pursued payment of her costs. Margaret’s parents, aged in their sixties, took out a five year loan so the bill could be paid. Margaret is still in receipt of Supporting Parents Benefit and was ineligible for a loan herself. She struggles to make the repayments. Tony still lives at, and operates, the family business.
Commentary on critical issues:
- The judgement from VLA in respect to Margaret’s case, proved to be wrong. VLA anticipated that proceeds from distribution of the marital property would be sufficient to cover all legal costs. Margaret was effectively pushed into issuing property proceedings, but there was no settlement, as Margaret could not afford to continue with the application. Margaret’s parents are at the end of their working lives and, as a result, have suffered financially.
- VLA determined that Margaret would be unsuccessful in contesting the application by her former husband for contact; this turned out to be not the case.
- Residing in a rural region meant that Margaret was reliant on limited circuit court sittings for negotiation over complex issues. She felt pressured into settling her case, and consented to decisions that were difficult to live with, in the long term.
- Margaret’s former husband could afford to prolong the proceedings and his behaviour was only scrutinised when the court was sitting.
Sally and Paul had a turbulent relationship that commenced in 1990. The longest period of time they lived together was ten weeks. It was later apparent that Paul, now in his fifties, was a convicted child sex offender. He was a violent man, but Sally wanted it to work; she wanted family life. Their daughter, Isobelle, was born in 1992. The relationship broke down completely in 1994. Sally wanted to take Isobelle away with her and settle interstate. Paul brought ex parte proceedings in the Family Court, which prevented her from leaving. At the same time, he commenced an application for contact with Isobelle.
Sally was granted legal aid funding for representation by a solicitor. She was advised that she should consent to interim orders for contact or she would put her application for the residency of Isobelle at risk. Isobelle had been residing with Sally since the breakdown of the relationship. Sally and Paul consented to final orders later that year, which provided for contact to take place weekly for an eight-hour period. Paul had also wanted overnight contact and the orders provided that this would take place at a future date.
In 1995, Isobelle told Sally that her father had touched her in the genital area and Sally notified the Department of Human Services. The department then brought an application in the Children’s Court, which was against Sally because she had allowed contact between Paul and Isobelle. The department had a psychologist’s report, which stated that Isobelle was fearful of her father, but that there was no medical evidence of a physical nature that confirmed sexual contact. The matter was dropped by the Department and access continued.
Sally was at this stage very alarmed. Her solicitor, still funded by legal aid, filed a Notice of Risk with the Family Court in relation to the matter. More court proceedings took place and a child representative for Isobelle was appointed by the court. Contact between Paul and Isobelle continued in accordance with the original orders.
Isobelle again disclosed sexual contact by her father and there were further concerns as she had a vaginal discharge. Sally again notified the Department of Human Services and the child representative, but contact resumed as per orders.
In October 1995, Paul was charged with child sex offences in relationship to other children, and the child representative advised that contact should be supervised. In November 1996, Paul was convicted and given a suspended sentence.
In 1997, further orders were consented to, which were intended to be final. These set out a schedule of some months of restricted contact followed by the introduction of unsupervised overnight contact. Paul’s past sexual convictions were not in themselves enough to exclude him from overnight contact. Investigations had not been able to prove events disclosed by Isobelle, and there is a limit to how much examination of a young child should occur.
Sally was advised that there would be a report made by the Family Court counsellor in relation to contact, but this did not occur.
Sally organised supervisors for contact, but there was still some confusion as to where contact was to take place. Paul then proceeded to bring contempt proceedings against Sally when contact had not occurred because of this confusion.
By this time, Sally had reached the limit of funding available for Family Law disputes. She did not have the income to pay for her solicitor, so she represented herself at the contempt proceedings. The court refined the orders to make them clearer and there was no finding against Sally.
The 1997 final orders were still in place and overnight contact was due to commence. Sally did not want to breach the orders and tried to encourage Isobelle to go. Isobelle was very reluctant and upset at the thought of going to stay with her father. Sally enquired about the counselling report she had expected, only to be told that no orders had been made in relation to the report. She contacted the Department of Human Services for help but they told her the case had been closed and they would have no further involvement. She offered Paul continued supervised contact and he reluctantly agreed. She wrote to the court and went back to Family Court counselling where she was advised to apply for new orders. Sally no longer had legal representation and did not know how to proceed.
During this period of time, Paul again brought proceedings for contempt of the court against Sally. Overnight contact had not gone ahead in accordance with the orders and now both parties were acting for themselves. The contempt charges were dismissed.
Shortly after this, the police notified Sally that Paul had contacted a court counsellor and had threatened both Sally and Isobelle. The police advised her to avoid Paul and to stop any contact with Isobelle. Paul was charged with ‘threat to kill’, he pleaded guilty and received a fine and a suspended sentence.
Paul then issued a third contempt application in the Family Court. Sally approached her local Member of Parliament for assistance, as she was unable to continue doing all her own legal work. Although she was becoming more familiar with the legal system, she felt that something needed to be done to stop Paul repeatedly bringing the matter to court. The MP was sympathetic and contacted Victoria Legal Aid, which resulted in more funds becoming available. Sally could now instruct new solicitors.
At the hearing of the third contempt application Sally was represented but Paul failed to appear. The matter was dismissed and an order for costs was made against Paul. It is unlikely that these costs will ever be recovered.
Through her solicitors, Sally made an application to the Family Court for the discharge of the existing contact orders and for new orders in relation to Isobelle’s general welfare. Paul was served with the application but failed to attend the hearing. The new orders were made in his absence and are now recognised as being final. Sally still fears that Paul will again drag her unwillingly into court again in an effort to resume contact with Isobelle.
Commentary on critical issues:
- Sally’s case illustrates the inadequacy of funding limits in matters involving sexual abuse of children.
- Having no legal aid funding available for amending court orders, Sally was the subject of three unnecessary, unsuccessful contempt proceedings.
- It is inappropriate for VLA to include child protection proceedings, initiated by a Government department, in its definition of family law matter to which funding limits apply.
- It is not appropriate for an individual to be involved in direct negotiation with, or cross-examine, the perpetrator of violence against themselves or their children.
Carla and Jose married in their home country in 1990. They had moved to Australia when the marriage failed and Carla was unable to speak, read or write English. They had a child Emilio who was three years old when Carla and Jose separated.
There was some history of violence on Jose’s part during the marriage, but at the time of separation and for some time thereafter, the level of violence accelerated. This made Emilio’s contact with his father extremely difficult. Jose wanted to reconcile with Carla and threatened to suicide if Carla did not agree. At this stage, Carla was very close to returning to the relationship out of fear for herself, for her child and for Jose himself.
Initially, Jose was not interested in seeing his son and contact arrangements were quite casual, often occurring at Carla’s home. It appeared that Jose only wanted to spend more time with Carla and he showed very little interest in Emilio. When he did take Emilio out it was only for short periods and Emilio was reluctant to separate from his mother on these occasions. Emilio was afraid of his father, as he had witnessed several violent incidents, and at one stage his father, during a physical attack on his mother, had struck Emilio.
Shortly after separation, and with the help of the police, Carla obtained an interim intervention order against Jose because of his violence. When Jose attended the Magistrates Court for the return date hearing for the final order, he persuaded Carla that his violent and unreasonable behaviour would discontinue. Carla was unrepresented, believed Jose and withdrew her application for the order.
However, when the violence continued, Carla applied for legal aid through a Victoria Legal Aid caseworker to pursue another intervention order. The application for aid was initially refused but at the last minute, the caseworker was able to obtain some aid and arranged for a lawyer to meet Carla at the court for the hearing. Carla’s previous ‘voluntary’ withdrawal of her application affected her credibility and the Magistrate did not grant the order.
At the same time, Jose was demanding to see more of Emilio. The child’s fears and Jose’s volatility led Carla to apply for legal aid to restrict Jose’s weekly hours of contact. Aid was denied and the reason given was that, because the Magistrates Court had refused an intervention order when violence was alleged, the Family Court would probably refuse restricted child-contact times.
Confidential Family Court counselling was encouraged and attended by both parties. There Jose insisted that Emilio should live with him. The counsellor pointed out that this was unrealistic. Emilio was still a pre-school child and Carla had always been responsible for his day-to-day care. Carla believed she had the counsellor’s support when she suggested two hours on a weekend to start with, with increasing contact, over a period of time, to rebuild the relationship between father and son. Jose refused the proposal.
Carla again applied for legal aid as Jose continued to pursue more contact with Emilio. VLA did not consider it worthwhile to bring the dispute over contact hours before the Family Court, but did allow a limited amount for an interpretation (to obtain some clarification about that the orders actually meant), and some negotiations over contact hours. No agreement was reached, but Emilio’s residency with Carla was no longer an issue.
Jose had legal aid and his solicitors issued court proceedings on his behalf seeking, among other detailed orders, overnight contact every weekend.
Carla’s application for legal aid was received and again denied on the basis of the presumed precedent of the decision by the Magistrates Court regarding the intervention order. On the eve of the first hearing of the husband’s application, the decision to grant aid to Carla was reviewed and again denied. That Carla did not understand English or the Australian legal system, and that she had a very different cultural background did not appear to be relevant. That she did not understand the process, could not afford to pay for legal advice, and was being denied input into the decision-making process regarding her child was not sufficiently important. VLA did not think that she was likely to get the orders that she wanted, so she was denied access to proper legal advice and representation.
There were two hours of legal aid funding still available for negotiations. No aid was made available for the filing of documents in response to Jose’s application. The barrister who had been briefed to negotiate at court was generous enough to prepare the necessary documents for filing and work well beyond the two hours for which he would be paid. However, the matter was not resolved.
There were several other court appearances, some of them wasting everyone’s time as adjournments were granted so that Carla could seek legal aid. No aid was granted. Carla was assisted by her support worker, who arranged interpreters, and from the barrister who acted ‘pro bono’when he could.
In the course of the proceedings a child representative was appointed. The child representative, the barrister, the VLA case worker and the support worker all tried to persuade VLA that Carla should receive funding. Aid was still refused. Disputes over contact continued. Carla suffered Jose’s abuse in the presence of their child. Jose was still legally represented through legal aid funding.
Nearly four months after the first court appearance, and three or four court appearances later, interim contact orders were consented to by both parties. Again, at court five months later, still without legal aid and this time with only her support worker and interpreter to assist her, Carla consented to final orders. Jose was represented throughout this process. The orders basically allowed for fortnightly overnight contact, arrangements for special days such as Christmas, and some holiday contact once Emilio starts school.
Carla has been told that the orders appear reasonable in the circumstances. She may come to accept this. But she will always find it hard to understand why she was not allowed equal opportunity to participate in and to understand the legal process so intimately affecting her life, but so foreign to her. She likes living in Australia but she doesn’t like our laws.
Commentary on critical issues:
- Where there is a dispute between parties who have the disadvantage of language or cultural barriers, not to mention the issue of domestic violence, it is unreasonable to expect a resolution by negotiations alone. Access to the court process can assist resolution of disputes, as it encourages negotiation. When people of a non-English–speaking background attend court, they require legal representation.
- It is a matter of equity that recent migrants, and those without English or knowledge of the system, have access to clear explanations of the law and the legal process that will be followed to settle the dispute. In this case VLA was prepared to meet the legal costs of divorce proceedings due to language barriers, but would not extend funding to deal with more contentious and complex issues.
- It is inappropriate for support workers to act as legal advisers and advocates in court. They are unqualified to do so, and it is a misuse of their expertise.
Sharon and John each had a child from previous relationships. Sharon had obtained orders for sole guardianship and custody of her daughter, Emily; the father lived interstate and had chosen to withdraw completely from his daughter’s life. John’s daughter, Natalie, who was a couple of years older than Emily, had not had contact with her mother since she was a baby.
Early in their relationship Sharon unexpectedly fell pregnant. She was living with John, but life together was already proving difficult. John was not contributing financially, and the two children were not getting on well together. Life became progressively difficult and Sharon and John separated. A few months after the baby, Susan, was born, Sharon moved back on a trial basis and stayed.
John was very controlling and abusive to all members of the household. He would happily play with the children, but was always ready to punish. He would continually hit both children and often hit Natalie around the head. Sharon was particularly concerned about this as Natalie had a learning disability.
John showed Sharon no respect. He would call her fat and moronic and swear at her. He would talk about his money, his house, and his car. Sharon was not doing paid work as she was at home looking after both children. She struggled financially as John rarely provided enough money to run the household. Sharon often relied on her mother for additional food and petrol money.
John was also physically violent towards Sharon. On one occasion, he repeatedly beat her having completely lost control. He would often masturbate in front of Sharon and seemed unconcerned that Susan was in the same room.
John worked for himself and in his spare time was renovating the house. The renovations were a source of tension and conflict in the household, as John required assistance from Sharon, Natalie and Emily; the girls at this stage were only twelve and nine years of age, respectively.
In spite of these problems Sharon stayed with John. She did not want to return to being a single parent, and it was important to her that they try to remain as a family. She was also afraid that John would exclude her from Susan’s life, just as he had kept Natalie and her mother apart.
Eventually, she felt compelled to leave after an incident with one of the children. Emily had been helping John with the renovations and he hit her for making a mistake. She was injured and Sharon took her to a doctor. It was at this point that Sharon realised how afraid she was and how uncontrollable John’s temper had become. A few months before Susan’s third birthday, Sharon left taking the two girls with her. Natalie remained with her father.
Sharon went to live with her mother, but John found her there. He threatened to make sure Sharon was excluded from Susan’s life. Sharon went to a solicitor who applied for Legal Aid funding to obtain Family Court orders and John also sought legal advice.
Once they were away from John, Sharon’s two girls made disclosures to her of inappropriate touching of their genital area by John and his daughter, Natalie. Susan was engaging in behaviour that gave Sharon more reason to believe the stories were true. Sharon reflected on past conflicts between Natalie and Emily. There was Natalie’s past history of unusual vaginal discharge, and more recently her own daughters’vaginal irritation and discharge. Sharon sought advice from a range of people including welfare workers, child protection, medical practitioners and her lawyers. She received conflicting advice. A notification was made to the Department of Human Services, and protection workers were very concerned and recommended to Sharon that she cease contact between John and the girls. At this stage, a child representative was appointed by the family court who also urged caution with contact. Ultimately the girls did not repeat their disclosures to the investigators and the Department of Human Services investigation did not substantiate sexual abuse. Sharon had initially been encouraged to be very protective, as she could not be sure whether the abuse had occurred or not. She was later told that there was no basis to her claims, and that she had been just trying to frustrate John’s contact. Sharon denies this.
In the mean time Family Court proceedings were under way. Sharon was seeking an order that Susan reside with her, and made no specific application regarding—John’s contact. John had applied for all three girls to reside with him. He was not working and was receiving funding for his case from Legal Aid.
Interim orders in the Family Court provided that Susan reside with Sharon and that John have supervised contact with her. Contact with Emily was to occur only if the child representative could obtain her agreement. This did not happen. Sharon did not seek any contact with Natalie because of the conflict between the girls. Eventually the Welfare report ordered by the Family Court supported the view that there was no benefit in the three girls having time together.
As the allegations against John played a more significant part in Family Court proceedings, restricted supervised contact was ordered. The child representative was expressing the view in discussions between the parties lawyers that Sharon was a ‘no contact mother’, that she was trying to stop any contact taking place. Sharon still denies this. She pointed out that Emily had suffered as a result of having no relationship with her father and she did not want this to happen to Susan, but she did want to ensure Susan was safe.
It is always difficult to find suitable people to voluntarily supervise contact and, because John sought to increase his time with Susan, the matter went back to court for further amendments to the interim orders. Sharon’s records show that they went back to court over supervision issues six times in three months.
Sharon lost confidence in her solicitor and terminated her services. She lost legal aid funding for a while and had to appear unrepresented in interim hearings. She eventually was able to engage a new solicitor and received further legal aid funding.
As the final hearing approached, it was clear that Sharon had insufficient legal aid funds left to cover the costs. The legal aid ceiling of $10 000 had been almost reached as a consequence of the many returns to court over the problems of supervised contact. Although Sharon was not confident about appearing for herself in court, to save costs she prepared her own court documents with the help of a welfare worker at a community legal service. She was required to prepare a finale affidavit detailing all the history and evidence she would refer to in the hearing, obtain affidavits from her witnesses, and a chronology of events for the court. She had kept diaries but it was still very difficult, and the task obviously required expertise. Her solicitor did some editing of the documents and they were filed so the case could proceed.
Sharon had legal aid funding for representation in court by a barrister for one and a half days. The case was to last four days.John was also reaching the limit of his legal aid funding. He had all his court documents fully prepared by his solicitor, but he had no money left to be represented at court. He conducted the case himself. Just prior to the hearing he dropped his application for residency, and the only issue before the court was the nature and extent of John’s contact with Susan. He was seeking weekly overnight contact and holiday contact, all to be unsupervised. Sharon still had concerns about Susan’s safety. Emily was very distressed at the thought of Susan being with Natalie and John.
Sharon had managed to accrue some additional money to pay for her barrister. She received food vouchers, which she lived on so she could save for her legal costs. A religious charity gave her $500 and a friend gave her $1000. But her documents were inexpertly prepared and contained inconsistencies. This affected her credibility in the view of the judge deciding the matter. John cross-examined Sharon for a full day and the judge questioned her the next day.
In a judgement delivered six weeks later, the husband’s application for unsupervised contact was successful. Susan is still only five years old, and Sharon still worries about her safety. Sharon is learning to live with her concerns.
Commentary on critical issues:
- Denial of access to proper legal representation at the preparation for the final hearing stage of the case is a significant disadvantage that may effect the outcome of the case.
- Matters involving supervised contact are often cases that involve domestic violence and child abuse. They frequently require additional court time and consequently additional funding.
- The lack of availability of legal aid funding can result in a significant drain on other community resources: welfare agencies, community legal centres and charities.
- There is also the question of the husband’s access to adequate legal aid funding. In its absence, when a husband has to represent himself, it is inappropriate for him to cross-examine a wife when domestic violence is an issue.
Rachel was in her mid-teens when she cut short her education and commenced a relationship with Peter. They lived together for a few years and Stephanie was born. Peter was frequently violent towards Rachel, who was intimidated by him. Despite this Rachel managed to end the relationship with Peter and took Stephanie with her. Legal aid funded her to obtain orders for the residence of Stephanie.
Rachel is on a disability pension and has been dependent upon Social Security payments since she was a teenager. She has ongoing Family Court proceedings concerning her child. She is conducting those proceedings herself because part legal aid funding of Family Court costs preclude her from applying for further aid.
Although Rachel has her file from her former solicitors, she cannot always identify or find what she needs from these documents. Without them, she has difficulty accurately recalling dates and timeframes for past events.
As a young sole parent, Rachel needed support and some respite, but her family was unwilling or unable to help. Peter had regular access to Stephanie but access changeovers were problematic. Peter was still violent and threatening to Rachel. At this stage, Rachel entered another relationship that, unfortunately, was violent as well.
Rachel met Jeff through her neighbours. He had a history of criminal violence and not long prior to their meeting, had completed a thirteen-year gaol term. He had spent more than twenty years in the prison system. From early in their relationship Jeff was physically violent to Rachel. However, Rachel moved in with Jeff and soon became pregnant.
Rachel now found herself unable to provide a safe home environment for Stephanie. She was trying to cope with a violent new relationship. She lacked family support and financial resources. With all these problems and her exhaustion from contact changeover problems, Rachel was persuaded to consent to Stephanie, now school age, residing with Peter.
Rachel’s second child, Daniel, was born in 1992. Within months of the birth, Jeff was again imprisoned for an eight-month period. Following his release from prison, Jeff persuaded Rachel that it was in Daniel’s interest for him to move in with them.
He did not financially support them or share in the day-to-day care of Daniel, but continued his abuse and manipulation of Rachel.
Rachel was punched and pushed, she had a glass smashed over her head and a cigarette butted out in her face. Jeff would use his fists or anything handy as a weapon against her. Rachel lived in fear. She treated her own injuries. Jeff threatened that any report of violence would see him in prison again and, if that happened, he would have her killed. He threatened both Rachel and her son should she try to take Daniel away. Eventually, however, Rachel had to escape. In late 1996 she left, but without Daniel.
Her first act was to go to the police for protection. They assisted her with an application for an intervention order. Then Rachel obtained legal aid and engaged solicitors to act for her in Family Court proceedings for Daniel’s return. The only difficulty was that Jeff had moved and taken Daniel with him.
In any legal action when a party’s whereabouts are unknown, costs quickly accumulate and a legal aid grant is quickly depleted. Additional applications are needed to overcome difficulties in serving documents and in the enforcement of orders, and to proceed ex parte. Each additional step before the court can only go ahead for legal aid clients once VLA has approved an application for a further ‘stage of matter’ grant. This process takes time.
The Family Court made a custody order in Rachel’s favour, in Jeff’s absence. But Rachel had no contact with her son. Jeff had not been found so the order was ineffectual. Ten months after separation Jeff came forward and advised that he wished to contest the order. He claimed he had just received a copy of the court orders from friends, and had no knowledge of previous requests or orders for Daniel’s return.
The Family Court is reluctant to subject a child to frequent change or instability so Daniel remained with his father pending the further hearing of the custody dispute. Rachel, who had been Daniel’s primary carer for his first four years, was now involved in contested court proceedings for contact with her son. VLA would not fund Rachel in interim custody or residency proceedings.
By the time the final hearing came about, Daniel had been in his father’s continuous care for over nineteen months. He was attending school and apparently progressing normally.
Only one day of representation in court could be funded from the remaining legal aid grant. The $10 000 cap on legal assistance had almost been reached.
Rachel was frustrated by the court process that had failed to return her son to her, but left him in the hands of a violent and abusive man. She distrusted her lawyers and could not accept the depletion of her legal aid funds.
Rachel’s solicitors had persuaded VLA that, with the little funding that remained, Rachel’s case for her child to reside with her should be argued before the court. Despite the difficulties with the case, including the passage of time and some questioning of Rachel’s parenting skills, her lawyers thought it was worth seeking residency. However, on the day of her final hearing, she was unlucky enough to be delayed by a traffic accident and was late. She was viewed as unreliable and, in her absence, the court quickly made final orders.
Daniel was to reside with Jeff, and Rachel was ordered to have fortnightly contact, commencing as four hours of supervised contact, and becoming less restrictive over time.
With no further legal aid available to her, Rachel was unable to obtain legal representation—to do anything about the orders made in her absence or about the subsequent breaches of orders by Jeff, or to ensure the transition from supervised to unsupervised contact. The improvement due in Rachel’s contact has not occurred.
Rachel is now appearing for herself in the Family Court. She has brought proceedings against Jeff for his breach of the contact orders. The consequence of these orders is not at this time clear to her. Jeff has continued to breach the orders.
Rachel also intends to pursue a further application for Daniel to reside with her. She believes she must protect Daniel from Jeff. She has been advised that she needs to provide proof of the traffic accident that delayed her arrival at court. She has to consider how she can rehabilitate herself as a parent in the eyes of the court. But Rachel is a reluctant talker. Her level of literacy is too low for the task. She needs further legal advice but is ineligible for legal aid.
Rachel is representing herself in contested legal proceedings that are about the welfare of her young child.
Commentary on critical issues:
- There is a need to recognise the inadequacy of funding capped at $10 000 in complex matters, and where one party has the ability to resist service or enforcement of orders and the other party, consequently, must incur additional legal costs.
- This case highlights the greater difficulties of those with a background of extreme violence, and social and financial disadvantage in dealing with our most formal institutions, the courts. The need for assistance and the availability of legal aid is the greater because of these difficulties.
- The case has not ended, despite the making of final orders. Enforcement proceedings and an application for further orders have already been issued. The court will have to deal with the matter. It would be preferable for the court, the parties and the child involved if the proceedings were conducted by legal practitioners.
CONCLUSIONS AND RECOMMENDATIONS
This study was undertaken to highlight the difficulties that a specific group is facing in relation to denial of any or adequate legal aid. Although there are many examples of legal aid working effectively, there must be room to evaluate, and to consider the impact on those individuals whose needs are not met.
There is nothing extraordinary about the cases documented in this report. Cases were not handpicked for their sensational content or outcome. They are, in fact, the stories of ordinary women from various backgrounds who had been victims of violence, only then to find themselves subject to system abuse and judgment through an under-resourced legal aid system. The legal outcomes were not necessarily bad in every case; the experience of the legal process, however, varied from a sense of frustration to one of complete disempowerment and injustice.
If we dismiss the experience of the women in these case studies, we are at risk of condoning a legal system:
- which does not treat all people equally before the law;
- which does not, regardless of status or financial means, give people access to the law; and
- which does not recognise the immense struggle that is played out in our court system every day.
This study makes the following recommendations:
- That the VLA Board accept this project report for discussion and consideration.
- That VLA urgently consider developing specific guidelines for the granting of legal aid in cases that involve domestic violence.