Inquiry into the Australian Legal Aid System

Implications of the Re K decision

5.24 The Committee heard evidence from a number of witnesses concerning the implications of Re K. In particular, the Committee heard that:

• following the decision in Re K, there had been a sharp increase in applications for legal aid to enable the separate representation of children, which has placed significant pressure on the budgets of the legal aid commissions;
• social changes, and a decline in community services, may have contributed to the increase in separate representation orders;
• although recently there has been a levelling out in separate representation orders in some jurisdictions, this is at least in part because the Family Court is aware of constraints on the ability of the legal aid commissions to fund separate representation matters;
• in a limited number of cases a party to family law proceedings may be ordered to pay for the separate representation of a child; and
• there is need for a nationally consistent approach to the funding of separate representation applications.

The increase in applications for legal aid for separate representation

5.25 The Committee heard evidence that, since the decision in Re K, there has been a sharp rise in the number of separate representation orders made by the Family Court. The Committee also heard that legal aid is provided to the child in most such cases.

5.26 National Legal Aid gave evidence that, as a result of the increase in orders, the legal aid system's capacity to provide representation for children is reaching "breaking point". [7]

5.27 The Queensland Legal Aid Commission observed that, while the effect of Dietrich's case has been an "unknown quantity", the effect of Re K was immediate and significant. The Commission advised:

The High Courts decision in Dietrich was seen by many observers as having a potentially disastrous effect on Legal Aid Commission budgets. To date this fear has not materialised although some states have experienced additional budget strain occasioned by Dietrich applications. A more serious financial problem has arisen for Legal Aid Commissions as a result of the Family Court of Australia decision in Re K. There has been an explosion in the number of child representation matters being funded since that decision ... The demands on the Commission is outstripping the capacity to respond. [8]

5.28 Similarly, the Committee heard evidence from Ms Carol Bahemia, Director of the Western Australian Legal Aid Commission, that there had been a ten-fold increase in legally aided separate representation matters in one year, without a commensurate increase in funding to the Commission. [9]

5.29 On the other hand, the Chief Justice of the Family Court argued that separate representatives are appointed in 6.7 per cent of cases involving children's issues and that it is incorrect to state that the decision of the Court in Re K has "thrown the system into chaos." [10]

5.30 Legal aid for separate representation is generally arranged by the legal aid commissions. [11] The Committee received evidence that between 1992-93 and 1995-96, there was a substantial increase in separate representation approvals by legal aid commissions. The amount of increase varies between jurisdictions. In Victoria, for example, the increase during the period is over 2000 per cent. [12] Other jurisdictions recorded less substantial increases.

5.31 The following table shows the trend in legal aid approvals for separate representation of children in family law matters.

Table 5.1: Approvals by Legal Aid Commissions for Separate Representation

Sources: Family Law Council, Involving and Representing Children in Family Law, August 1996, p. 5 and information provided to the Committee by the Family and Legal Services Division of the Attorney-General's Department.

5.32 The Committee received evidence from the Attorney-General's Department that in 1996-96 the national average case cost of a separate representation matter was $3,464.78. [13] The Department also provided the Committee with the following information in relation to expenditure on separate representation matters:

Table 5.2: Approvals by Legal Aid Commissions for Separate Representation

Source: Information provided to the Committee by the Family and Legal Services Division of the Attorney-General's Department. [14]

5.33 Mr Stephen Bourke, Acting Assistant Secretary, Legal Aid Branch, Commonwealth Attorney-General's Department, advised the Committee that “we are aware of the growth in the number of separate representation appointments since the Re K decision and, on our assessment, we believe that the funds that would be available in 1997-98 would be sufficient to provide separate representation at those levels”. [15]

The impact of social changes and a decline in community services

5.34 While the Committee heard some evidence which tended to attribute the increase in separate representation orders to Re K itself, the Committee also heard that other factors concerning the welfare of children are relevant.

5.35 In this regard, Ms Judy Ryan, Manager, Family Law Branch, Legal Aid Commission of New South Wales, advised the Committee:

If you look at the data contained in the annual reports from the Family Court, you will see a dramatic increase in the number of files being opened which concern children. The other matter of context is the increasing collapse of the welfare systems. ... the Wood royal commission in New South Wales has highlighted very clearly the difficulties that exist for families to obtain assistance when children are perceived at risk with the Department of Community Services. We see approximately 33,000 notifications a year which allege that children are at risk. At a practical level the department's inability to respond to those notifications has resulted in client after client being advised by the department, `You must approach the Family Court and obtain assistance , that is the court to deal with your problem. The children's court system simply cannot cope.' That giving of advice matches the flavour of the work that we see in the Family Court, which now has a very clear welfare flavour; matters that we used to see in the children's court five years ago are being heard in the Family Court. [16]

The levelling off of applications for legal aid for separate representation

5.36 The Committee received evidence that most recent statistical data suggest that appointment of child separate representatives is levelling, and possibly decreasing, in some jurisdictions. [17] This evidence appears to be supported by figures provided to the Committee set out in Table 1.

5.37 The Committee heard that one reason for the levelling off of applications for legal aid for separate representation is the development of cooperative arrangements between the Family Court and legal aid commissions so as to best manage available resources. For example, Mr Jim Harnett, Director, Legal Services Commission of South Australia, told the Committee:

There has been a plateauing of the appointment of separate representatives here in South Australia. In part, this has resulted from a cooperative approach taken by the local court here and ourselves in respect of the appointment of separate representatives. ... if we get together with the other players we can often work something out to make sure that the system is still operating well and that we are able to contain it within our budget. [18]

5.38 The NSW Legal Aid Commission also informed the Committee that after substantial negotiation between the court and the Commission, orders for separate representation appeared to be declining. [19] Ms Judy Ryan of the Commission told the Committee:

Since July [1996], each [separate representation] order that is made by the Family Court is subject to an internal review by us whereby we assess its utility and need. It caused some tension in that the court perceived that this was us second-guessing an order of the court, and to a degree I guess that is right, but we had to acknowledge that we had our own budget to manage. We look closely at the court's order and then we determine whether the welfare of the child will be promoted and whether it is necessary to implement this order. As a consequence of that, we have refused about 10 or 15 requests in the last financial year from the court where they have asked us to represent the child. We have looked and come to the view that we do not think implementing the order will either make any difference to the outcome or, alternatively, promote the interest of the child. [20]

5.39 However, Ms Ryan warned:

To the extent that people might suggest ... that orders that are made by the court are made liberally and without regard to the genuine need of the child, we would say to you, firstly, that there are virtually no savings to be made. Ten to 15 orders, out of the 900 - odd that we will have this year, is a small saving. Our own reviews show us that the orders that are made are clearly made in appropriate circumstances and as far as we are concerned, we are expending legal aid dollars on separate representation matters in circumstances only which promote the needs of the child. [21]

5.40 The Committee heard that the Western Australian Legal Aid Commission only granted legal aid for separate representation applications falling under what were regarded as the two most serious categories enunciated in Re K. [22] The Committee was also told that, as a result, a child would only be granted legal aid for separate representation in the event of allegations of emotional, physical and psychological abuse. [23]

5.41 The Committee also heard the following evidence in relation to Western Australia from Mrs Jennifer Boland, Chairperson of the Family Law Council:

Anecdotally, I am aware that in Western Australia the judges are simply not making appointments where they would previously have done so under the criteria in Re K because they are aware of the guidelines the W.A. Legal Aid Commission has imposed upon the appointments of separate legal representatives. So there is a chicken and egg situation occurring. Because the court is aware that its orders are not likely to be fulfilled, it is not making the orders. [24]

5.42 The Committee notes with concern that this evidence suggests that the levelling off of separate representation orders, at least in Western Australia, is at least in part due the Family Court's perception of the availability of legal aid funds.

5.43 An alternative approach has been taken in Victoria which, as noted, has seen the most dramatic rise in the appointment of separate representatives for children. This increase has resulted in Victoria Legal Aid reassessing its approach to the funding of family law matters with limits on the number and financial caps on the amount of grants of aid. In its submission, Victoria Legal Aid elaborated on this matter in the following terms:

Legal Aid Commissions have no control over the Family Court when it orders that a child representative be appointed. In an attempt to limit the cost of child representatives, Victoria Legal Aid is also limiting the funding of child representatives to those cases where the child's parents (or one of them) are in receipt of or would qualify financially for legal assistance. ... Victoria Legal Aid will now pay no more than $10,000 per party and $15,000 to a child representative in a parenting dispute ... This policy decision to cap payments in any one matter also recognises that, with a limited budget, if VLA makes a large grant of assistance to one client, then inevitably another equally eligible applicant or applicants will have to miss out. [25]

The payment of separate representation costs by a party

5.44 The Committee heard evidence that has considered whether the Family Court should order the payment of separate representation costs by a party to Family Court proceedings. [26]

5.45 In its submission to the Committee, the Family Law Council advised that such an approach has some merit where the parties had the capacity to pay. However, the Council noted that in many cases one or more of the parties would be on legal aid, and that an order for costs against a party “could simply be a redirection of legal aid funds”. [27]

5.46 Similarly, Ms Judy Ryan of NSW Legal Aid Commission advised the Committee:

We have explored the idea of parties paying. To a degree, in New South Wales, there is more money in the family law system. Demographically, we see more people with substantial family resources, but they seem to have the capacity, I think because of their social skills, to generally resolve their issues concerning the children. The issues they litigate over are financial rather than children, so we do not see many [separate representation] orders in those circumstances. Where we do have on the rare occasion parties who have substantial resources, then indeed we do recover the entirety of the cost of providing the representation to the children. We make that known to them at the outset, that at the conclusion of the matter, we will be seeking an entire reimbursement. [28]

Developing a national approach

5.47 Family law is a Commonwealth matter, which raises the question of whether the States and Territories should follow a national approach to the provision of legal aid for separate representation.

5.48 In this regard, Dr Margaret Browne, First Assistant Secretary, Legal Aid and Family Services, Attorney General's Department, advised the Committee that:

The legal aid commissions have dealt with the Re K problem in different ways. In Western Australia, for example, a decision has been taken to fund only some of the matters that arise in relation to some of the criteria. In other states-for example, Victoria-caps have been put on in relation to the representation of the child and the other parties. So there are various ways of dealing with that issue.... Different approaches have been taken in different commissions. What we will be looking to do in the future is have a more consistent approach, but I would not want to be suggesting that we would come down in favour of one of those approaches as against the other. That is a matter for further negotiation with commissions. [29]

5.49 Ms Judith Harrison, appearing on behalf of the National Women's Justice Coalition, registered her concern about the lack of national uniformity in relation to Re K. She explained:

There is the whole issue about national equity in the [legal aid] program following the cuts, so the issues in relation to separate representation are part of that. We are not happy with the lack of uniformity in relation to the approach to Re K, but we are not happy with the lack of uniformity that is going to result generally from the cuts. [30]

The priorities of the Commonwealth and the legal aid commissions

5.50 In its submission, the Attorney-General's Department advised the Committee that:

Separate representation of children will be a matter of priority for the Commonwealth in the proposed funding arrangements. Funds provided should be sufficient for LACs to fund children's representatives in accordance with their guidelines. The difficulty with the funding arrangements to date is that LACs have generally given priority to children's representation by taking the funding from other family law matters. As a general rule, on the whole LACs have not sought in any meaningful way to increase funding of family law matters at the expense of criminal law matters to overcome the problem. In this regard, the Commonwealth's intention for its funds to be directed only to matters arising under Commonwealth law should ensure that appropriate levels of resources are available for family law matters, including children's representation. [31]

5.51 The Attorney-General's Department indicated that, in October 1996, State and Territory governments were advised of the Commonwealth's priorities for legal aid and that one of these priorities would be the separate representation of children. [32]However, the Committee also heard that the Commonwealth and the legal aid commissions have been considering a number of options to contain costs of separate representation, some of which have already been referred to above. These include:

• briefing counsel less often;
• “conferencing”, which is a form of alternative dispute resolution;
• capping fees;
• employing in-house social workers and psychologists to undertake reports;
• seeking reports from the Family Court Counselling Service;
• limiting the types of matters to which aid is granted to only some of the criteria set out in Re K, as is done in Western Australia;
• tendering; and
• seeking costs orders in appropriate cases. [33]

Conclusions and Recommendation Nos: 6, 7 and 8

The Committee is of the view that the provision of separate representation of children, where the Court determines that this would be in the best interests of the child, should be a funding priority for the Commonwealth Government.

The Committee is concerned to ensure that measures, such as reviewing the decision of the Court or capping grants of aid, which may be introduced through new funding arrangements, do not result in a denial of adequate representation for any child whose best interest requires it. The Committee understands that, while there is a need to manage legal aid funding efficiently, the bests interests of the child must be the primary consideration.

As final funding arrangements for legal aid have not been finalised between the Commonwealth and all States and Territories, the Committee is unable to comment specifically on whether new funding arrangements for legal aid will have the capacity to provide effectively for separate representation of children where such assistance is essential in the pursuit of justice.

The Committee, however, is concerned that if overall funding is reduced, but funding for separate representation is maintained, other legal aid services may have to be forgone.

The Committee recommends that the Commonwealth Government ensures that adequate funding is available to legal aid commissions for the provision of separate representation of children in family law matters having regard to the guidelines set down in the Re K decision.

The Committee notes evidence from the Attorney-General's Department that it monitors the nature and extent of separate representing orders and funding requirements but that the models used to do this are not “sophisticated”.

The Committee recommends that the Attorney-General's Department, in cooperation with legal aid service providers and the Family Court, initiate the development of a sophisticated model to determine more precisely the level of resources required to provide separate representation for children in appropriate situations. Such a model will enhance the ability of the Government to appropriate sufficient funds for the separate representation of children on a reviewable recurrent basis.

The Committee notes concerns about the lack of a national, uniform approach to the legal aid implications of Re K.

The Committee recommends that the Commonwealth Government develop national uniform guidelines to be applied by the legal aid commissions when funding separate representation matters.

Footnotes

[7] Submission No. 88, National Legal Aid, p. 1090L.

[8] Submission No. 80, Queensland Legal Aid Office, p. 725.

[9] Evidence, Legal Aid Western Australia, p. 1249.

[10] Evidence, The Family Court of Australia, p. 627.

[11] Family Law Council., Involving and Representing Children in Family Law, August 1996, p. 40.

[12] Family Law Council., Involving and Representing Children in Family Law, August 1996, p. 5.

[13] Statistical information provided on 5 June 1997 by the Attorney-General's Department to the Committee secretariat.

[14] The Department advises that the 1994-95 figures may be under-estimated due to some initial data recording difficulties.

[15] Evidence, Attorney-General's Department, pp. 127-128.

[16] Evidence, Legal Aid Commission of New South Wales, p. 533.

[17] Evidence, The Family Court of Australia, p. 634.

[18] Evidence, Legal Services Commission of South Australia, p. 669.

[19] Evidence, NSW Legal Aid Commission, p. 549.

[20] Evidence, NSW Legal Aid Commission, p. 534.

[21] Evidence, NSW Legal Aid Commission, p. 534.

[22] Evidence, Legal Aid Western Australia, p. 1249.

[23] Evidence, Ms Currie, p. 1158.

[24] Evidence, Mrs J Boland, p. 196.

[25] Submission No. 35, Victoria Legal Aid, p. 264.

[26] Such a scheme was recommended in the Australian Law Reform Commission (ALRC) Report 75 Costs shifting - who pays for litigation ALRC Sydney 1995, 81 and considered by the Family Law Council in its report Involving and Representing Children in Family Law, Canberra, 1996, p. 46. A draft recommendations paper by the ALRC and the Human Rights and Equal Opportunity Commission entitled A Matter of Priority: Children and the Legal Process, April 1997, recommends such a scheme and notes that in New Zealand the parties are advised before proceedings are heard that such an order may be made.

[27] Submission No. 119, Family Law Council, pp. 13-14.

[28] Evidence, NSW Legal Aid Commission, pp. 534-535.

[29] Evidence, Commonwealth Attorney-General's Department, p. 824.

[30] Evidence, National Women's Justice Coalition, p. 862.

[31] Submission No. 127, Commonwealth Attorney-General's Department, p. 1822.

[32] Evidence, Attorney-General's Department, pp. 127-28.

[33] Submission No. 127, Attorney-General's Department, p. 24.