Legal practices frequently advise clients in relation to family breakdown. And unfortunately Loddon Campaspe CLC is no exception. But our capacity to help is severely limited and we know there are many more people in our community in need of legal advice who are simply falling through the cracks.
In the previous 2011-2012 financial year, Loddon Campaspe CLC assisted with 478 matters related to family breakdown. These dealt with issues such as divorce and separation, child contact, child support, child residency, maintenance, parenting and property disputes. This figure does not include family violence or intervention order matters.
While the courts encourage people to resolve these matters by themselves, some matters must be litigated even though many are eventually resolved by the parties before a judgement is made. And some resolved matters must be ratified by the courts, for example divorce proceedings which must be initiated through an application to the Family or Federal Magistrates’ Court.
Unfortunately for many people, family law services are prohibitively expensive. The recent Community Law Australia report Unaffordable and out of reach: the problem of access to the Australian legal system notes that ‘a family law application, for example in relation to a dispute over access to children or property, costs $255 in court fees to start the application and $638 for each day if a hearing is necessary. For people on low incomes, fees can be waived or reduced. Federal Court data on fee waivers highlights the lack of access to legal aid; less than 10% of fee waivers in 2007-08 represented legal aid exemptions.’ (see CLCs call for a universal legal safety net for more information on the Community Law Australia campaign.)
In 2004, the Senate Legal and Constitutional References Committee inquiry into legal aid and access to justice noted that ‘more funding is urgently needed for family law matters’.
Unaffordable and out of reach quotes Bill Grant, Chief Executive, Legal Aid NSW: ‘The middle class really can’t qualify for legal aid, and they are the ones who end up being a lot of the self-represented litigants – in the family law area it’s about 30 per cent, it’s a horrendous figure.’
Cuts to legal aid funding across Australia in recent years have forced Victoria Legal Aid and their interstate counterparts to cut back on funding for family law matters. As a result, a percentage of this burden has been shifted across to the community legal sector and more people are representing themselves before the courts without proper legal advice. Despite the burden shift, CLCs have not seen a commensurate increase in funding.
Although legal aid commissions and the courts publish do-it-yourself kits for self-represented litigants and post relevant information on their websites, the forms and the procedures are often complicated. And while these publications provide some guidance, they almost invariably conclude with the disclaimer that they are providing general information only and people should contact a lawyer before making a decision about what to do or before applying to the court. Unfortunately, both legal aid and CLCs are so over-stretched that their capacity to assist those who cannot afford a lawyer is severely limited.
Nonetheless, Loddon Campaspe CLC does what it can to assist family law litigants who go on to represent themselves. For example, we recently assisted a 38-year old woman who was separated from her husband. The couple could not agree on the division of property. Loddon Campaspe CLC assisted our client to draft a letter of proposal. This was rejected by the husband. We then assisted our client to draft and file an Initiating Motion and supporting Affidavit. We advised our client how to serve the stamped documents. Before the matter went to court the husband agreed to negotiate and at the first mention, proposed orders were handed to the court to be ratified as Orders by Consent.
Although this matter was a win for our client, which enabled her to move on with her life, our capacity to help was severely limited and was only appropriate because our client had the capacity to represent herself with our guidance. Unfortunately, we know there are many more people out there who are in need of legal advice.