Creighton, Alison; Hall, Matt --- "Less and More: Providing Legal Aid in Family Law Matters" [1999] ALRCRefJl 31; (1999) 75 Australian Law Reform Commission Reform Journal 60

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Reform Issue 75 Spring 1999

This article appeared on pages 60 – 64 of the original journal.

Less and more: providing legal aid in family law matters

By Alison Creighton and Matt Hall*

The delivery of legal aid in Australia and overseas has attracted the close scrutiny of government and the media in recent years. Public debates have questioned not only the levels of funding required, but also whether direct legal aid subsidies to poor litigants are the most appropriate and cost effective way to ensure access to justice.

Traditionally legal aid was delivered by providing funding for someone to receive legal representation throughout his or her matter. Legal aid commissions (LACs), community legal centres (CLCs) and governments have been reconsidering this approach in an effort to provide more services to more people. They have achieved this by placing limits or caps on the amount of funding one person can receive, by not increasing the rates paid to lawyers who do legal aid work, and by providing limited, targeted or ‘unbundled’ services rather than full legal representation.

The task of providing an effective, efficient service with the legal aid dollar requires LACs and CLCs both to effectively manage their case load and to function cooperatively in providing legal assistance. In the first instance this means prioritising cases and matching them to the appropriate type and level of assistance. Second, this means identifying the agency, service or person best able to deliver such assistance. For example, in cases where children are at risk and where parties are (for emotional, psychological or educational reasons) unable to represent themselves, full legal representation may be required. Otherwise, CLCs or related family law assistance schemes can handle cases in which limited assistance such as advice, case preparation or evidence gathering is appropriate.

These case evaluation and management changes have been adopted by legal aid commissions because of the limitations in their funding. Such changes can make for better integrated service delivery. It should be noted, however, that change to legal aid provision will not of itself produce savings if case management practices in courts are not also streamlined and made cost effective. This is a particular problem for cases in the Family Court of Australia.1 For family law matters legal aid caps of $10,000 – $15,000 should be sufficient for most cases, however courts need to ensure that their procedures and practices do not waste these precious legal aid funds.

Who receives legal aid

Legal aid is granted to applicants who have a certain income (means test) and have a case that has some prospect of success and involves some public interest (merits test). In family law matters clients of LACs and CLCs tend to be women, social security recipients and of non-English speaking background.2 Federal government guidelines direct that priority be given to cases involving children. Consequently, legal aid work in family matters is directed to cases that involve children who are part of families in social and economic hardship, particularly where there are allegations of abuse and neglect.3 Few CLCs at present offer more than a limited advice service for family law matters.

Priority clients

Legally aided clients and children in matters involving allegations of family violence and child abuse demand priority treatment by the court and legal aid commissions.4 Such cases are unlikely to be suitable for consensual resolution and are likely to require adjudication, and specialised, thorough and ongoing legal advice, evidence gathering and advocacy.

Inhouse legal aid lawyers are often well qualified and resourced to handle the priority children’s cases funded by legal aid for a number of reasons. Family law children’s cases form a large part of the practice of legal aid commissions, and many of these cases involve child protection issues. Legal aid family law solicitors in many states represent respondent parents and children in state care and protection matters brought by family services departments. Most of these cases involve family violence and child abuse allegations and provide experience in dealing with the most serious and difficult issues that come before the Family Court. In addition, the inhouse environment provides lawyers with an opportunity to workshop their cases, draw from the experience of other solicitors and access the practical, legal and emotional support required to deal with these cases. Finally, employed legal aid solicitors can access inhouse support services for their clients for referral to medical and psychological help, housing and other non-legal assistance.

Unbundled, targeted services

“There is now a growing consensus among commentators on legal aid that defining the right array of service components — varying with type of law, client need, case priorities, type of service being offered ... or the collective characteristics of the needs of certain groups of clients ... is far more useful.”5

In contrast to priority clients, there are other legal aid clients whose cases can proceed or be resolved with limited assistance. This invites debate on targeting or unbundling legal services — the selective provision of one, or some but not all, of the services in the full package of legal representation. Such assistance includes the provision of legal, procedural or tactical advice; assistance with preparing documents; representation at certain points in proceedings or for a major case event (discontinuous representation); and duty lawyer representation.

The aim of targeted services is to narrow the gap between full representation and no representation. Lord Woolf has commented favourably on unbundling as a process that

“... would offer a real way forward in terms of making justice accessible to those on moderate incomes who are currently not eligible for legal aid. Such an approach poses a challenge to both professional lawyers and other advisers as to how best to develop schemes that can provide the level of assistance needed within a cost ceiling appropriate to the matter at issue.”6

Targeted assistance can take the form of information about dispute resolution options; assessment of settlement proposals and of the merits of the case; preparation of information or bargaining positions for negotiations or conciliation; analysis of available income and help to develop realistic economic plans; or referral to necessary ancillary professionals such as therapists, appraisers, or vocational counsellors. Targeted assistance in family matters may also extend to representation on a ‘duty only’ or otherwise limited basis.

The timing of limited assistance is as important as the type of assistance and assistant provided. Where limited services are provided there are some indications that early assistance with case preparation may be more helpful than representation at trial. The preparation of initiating applications and documents and obtaining medical and other key evidence, have been identified as targeted services which can provide clients with the capacity to continue effectively with their matter unassisted. All LACs operate ‘face to face’ advice clinics, telephone advice services and duty lawyer programs. Many of these targeted services are also provided by CLCs, through clinical legal education programs or under contract to relevant government departments. Relationships Australia provides mediation services for families, children and adolescents, as well as other relationship support services such as marriage and relationship counselling and education; family therapy and skills training; and contact therapy.

Assistance by non-lawyers

Another mechanism for providing assistance on legal and related issues is to have non-lawyers assist clients in routine matters. The use of non-lawyers, law students and paralegals for advice, legal research, and simple representation or as a ‘McKenzie friend’ role,7 is common in the United States, Britain and Canada.

People without legal qualifications often have specialist legal knowledge and routinely assist in migration, housing, welfare and veterans’ matters. While representation by paralegals or lay advocates does not typically occur in family law matters, parties are sometimes assisted or supported by friends, family members or Court Network volunteers.

Often people seeking legal help also need assistance in relationships and parenting or drug and alcohol counselling, and/or assistance with housing or emergency refuge; assistance available from non-legal specialists such as social workers. Some LACs have inhouse social workers who provide assistance with refuge accommodation, community housing, relationships and parenting counselling, and enrolment in drug and alcohol or mental health programs.

The Commission has proposed that LACs should expand the use of non-lawyers and law students in areas such as straightforward legal representation before tribunals, as well as in social work and other non-legal areas.

Court Network schemes

All courts in Victoria, including the Family Court, operate a Court Network scheme to assist litigants, particularly those who are unrepresented. This service is funded by the state government, and is largely staffed by trained volunteers from a range of backgrounds, such as students of psychology, law and social work and retired people. They are trained for specific jurisdictions. Two volunteers are on duty at all times while the court is operating. The Court Network offers assistance with court orientation; court processes and procedures; and referral to advice services and other resources such as emergency accommodation. The service also is proactive; workers from the service might approach parties in waiting areas who appear ‘lost’; provide company or support to those in distress; provide information on court processes and referrals to legal or community assistance agencies. Other states do not have such a comprehensive organisation of this nature, but some courts have similar services.8 The Commission has proposed that the Court Network be expanded to all registries of the Family Court of Australia.

Coordination of services

Providing the broad range of necessary targeted services requires effective coordination of government subsidised legal services, the sharing of expertise, information and education resources, and the joint training of LAC and CLC staff in interviewing and identifying clients’ needs. Within such schemes, legal aid entities need to identify routine and difficult cases and the particular assistance or service which could facilitate the presentation or resolution of the case. The task is not easy but is essential if the problems associated with ‘the service roundabout’ of limited service provision are to be avoided.

Although there is a degree of coordination at a broad policy and administrative level, there is little coordination, sharing of case and practice information or referral cooperation, occurring between LACs, CLCs, and Aboriginal and Torres Strait Islander Legal Services. Persons requiring legal assistance may be referred from one CLC or legal aid office to another without receiving substantial assistance. Similar problems occur overseas. In May 1998, the Ontario Legal Aid Review found limited coordination a fundamental problem between legal aid and ancillary community legal service providers.9 In the United Kingdom the Lord Chancellor has described similar problems.

“Even where help is available, it is too difficult for people in need to find out about local services, and to identify which source of help would be best for their problem. As a result, many who could be helped simply struggle on alone, and may end up before a court as unprepared and unassisted defendants, or claimants with an unwinnable case.
The lack of effective referral networks of providers means that even when someone has taken the difficult first step, and sought help, he or she may be sent away. The lack of proper targeting also fails to make proper use of the resources available in the advice sector. For example, a fully trained lawyer who spends his or her time providing straightforward money advice, or checking welfare benefit entitlement, is not only wasting their own expertise, but is also denying that expertise to those customers whose problem really needs it.”10

Where there is expected to be greater use of minor assistance and unbundled services, it is important that people are not frustrated by a cycle of endless referral and minimal assistance. To address this, the Commission has proposed the establishment of a comprehensive referral directory that contains information on avenues of legal advice, and dispute resolution. It should also contain related referrals such as relationship and drug and alcohol counselling, community and emergency housing and refuge, ethnic support and interpretation services, domestic violence, trauma and torture services. The directory should be available on the internet and in print.

Improved case management

In its review of the federal civil justice system, the Commission has found that effective case management plays a fundamental role in maintaining a cost-effective litigation process. The Family Court, despite its many dedicated and talented judicial officers, its willingness to innovate and accommodate the needs of its litigants and its many potentially useful processes, is hamstrung by its case management system.

Comments to the Commission by litigants, practitioners, court officers and judges were generally that the conciliation, counselling and mediation services provided by the court are beneficial. However, the inflexible design of the case management system was said to add unnecessarily to costs and delays for many cases and to contribute to poor compliance with directions and orders. The complaint was that parties were required to attend too many case events and many of these did not help to advance the matter to trial or resolve it. Many litigants and lawyers reported that cases were settling because of frustration with the court’s processes. Parties are pushed down particular avenues which do not suit their circumstances and feel that they are being bullied into settling. In addition, lack of continuity in judicial officers managing the cases often forces people to tell their story over and over to different court officers at each of these repeated case events.

“Every time you go to court there is a different judge ... If I had a judge who knew the history and knew what the girls had been through for the last three years and what I had been through for the last three years ... maybe [it] would have been easier for me ... to get final orders and not just pending orders.”11

Litigants and lawyers also criticised the forms and documentation required in the Family Court. Some practitioners claimed the Court’s efforts to simplify documents and procedures have actually led to an increase in the amount and cost of paperwork needed. The Commission has proposed that the Family Court substantially improve its forms and initiating documents, its arrangements for discovery of documents and its referral of parties to conciliation and counselling. The Commission has recommended that the Family Court introduce a modified or team docket system of case management designed to cater for the particular case types dealt with by the Family Court. Each case would be allocated to a particular judge and registrar, who take responsibility for the case from commencement to finalisation. Because of the number of contested cases in the Family Court, it is not intended to place judges in charge of routine procedures which may be handled by registrars, but rather to allow difficult or complex cases to referred more easily to a judge for speedy determination. The aim is to make every case event count, to ensure compliance with case directions and produce effective settlement. It should also serve to cut unnecessary costs for litigation, including for those provided with legal aid.

Conclusion

Legal aid commissions must differentiate between cases that require priority, continuous representation and those that can conduct their own cases after receiving limited, targeted assistance. Once cases are differentiated in this way they can be streamed for assistance by the most appropriate service-provider, in the light of the priorities of other cases. The expansion and coordination of CLCs and other schemes, which operate in addition to LACs, will allow priority clients to be adequately represented while ensuring access to legal assistance for the growing raft of unrepresented litigants. This will ensure the maximum number of people will receive some assistance, even if this assistance is short of full legal representation for the duration of their case.

However, developing the case management techniques of the legal aid community cannot occur in a vacuum. Improvements to case management and consequential cost savings by the Family Court are crucial if LACs are to adequately serve the community.

* Alison Creighton and Matt Hall are Law Reform Officers working on the Commission’s review of the federal civil justice system.

Endnotes

1. Australian Law Reform Commission Discussion Paper 62 Review of the federal civil justice system Sydney 1999 (ALRC DP 62), ch 11.

2. ALRC DP 62, para 7.36.

3. Id, para 7.37.

4. See T Brown et al Violence in families: Report No 1 — The management of child abuse allegations in custody and access disputes before the Family Court of Australia The Family Violence and Family Court Research Program, February 1998.

5. Ontario Legal Aid Review Report of the Ontario Legal Aid Review: a blueprint for publicly funded legal services Queen’s Printer for Ontario 1998 (Ontario Review), ch 7 <http://www.attorneygeneral.jus.gov.on.ca/olar/ch7.htm> (18 June 1999).

6. Lord Woolf Access to justice: Interim report to the Lord Chancellor on the civil justice system in England and Wales Lord Chancellor’s Dept London 1995, 129.

7. A friend present in court to assist by prompting, making notes or quietly giving advice on the conduct of the case. See R v E J Smith [1982] 2 NSWLR 608.

8. See ALRC DP 62, para 7.74 – 7.76.

9. Ontario Review, ch 10 <http://www.attorneygeneral.jus.gov.on.ca/olar/ch10.htm> (16 June 1999)

10. Lord Chancellor’s Dept The Community Legal Service — A consultation paper: Modernising justice, ch 2 <http://www.open.gov.uk/lcd/comlegser/repindex1.htm> (4 June 1999).

11. Confidential consultation 1998.