27 November 2009 Executive Summary 4 Recommendations 11 Part 1: preliminary 18 1 terms of reference 18



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4.5 APPROPRIATE LEGAL REPRESENTATION

The importance of appropriate legal representation can hardly be overstated in parenting cases, especially those that involve issues of family violence. Where one or both parties are unrepresented, even with the benefits of increased judicial involvement arising from Division 12A, it can be almost impossible for the court to receive the sort of evidence and argument that can lead it to make an informed decision about the child’s best interests. Settled cases, too, are a worry when parties are unrepresented, because they may reach agreements in ignorance of the legal situation, or because they know they cannot properly put their case before the court.

It is universally agreed in the family law system that despite a lot of good work done to help unrepresented parties, such cases are the most likely to occupy the court’s time unfruitfully, or, as sometimes happens, effectively collapse because one or both parties is unable to organise witnesses or present their case in a satisfactory way. One submission pointed out that in some circumstances, cross-examination of a victim by an unrepresented violent partner can be experienced as a continuation of the violence.185 In such cases children are at risk, because they do not have the protection of a well-informed judicial outcome.

The Family Law Section of the Law Council of Australia made the following comments in its submission to the Review:

42. A court may make an order for an Independent Children’s Lawyer (ICL’s) to be appointed under section 68L of the Act and find that such order is meaningless because the appointment will not be funded by legal aid. For example, in Victoria, particularly in the Federal Magistrates’ Court, which is the court which deals with most children’s matters, this is often the situation. NSW Legal Aid has also recently refused to fund ICL’s despite the court ordering the appointment be made.


43. Independent Children’s Lawyers safeguard the interests of the children they represent. In cases in which violence is a risk, the ICL can and should collect information, ensure the child’s voice is heard and provide an independent view of any proposed order. The lack of funding for ICL’s in all cases, and particularly if violence is alleged, means the court is not properly assisted in assessing the risk of family violence or protecting children from such risk as it is obliged to do under section 60CG of the Act.

44. The general under resourcing of legal aid has adverse effects on all parties and children when violence has occurred or is alleged. Competent representation in court ought not be a luxury only the well-off can afford. The court has in any event an overriding obligation to consider the best interests of children and can only properly do so if information is gathered and evidence properly presented.

45. Self-represented litigants can be at a significant disadvantage. For victims of violence to present a case and argue it, including cross-examining the perpetrator, can be very difficult. If perpetrators are unrepresented this means they may be personally cross-examining the victim. These outcomes are increasingly frequent as legal assistance is under-funded and unable to assist many litigants who cannot otherwise afford representation.

46. Legal aid generally also has a “merits test” and as a condition of assistance the case must be considered likely to succeed. If perpetrators of violence fail the merits test then legal assistance is denied which can impact not only on the perpetrator but also on the victim. Self-represented litigants can increase the costs of legal proceedings for the other side, delay the smooth running of the case and will then be personally cross-examining the victim.

47. Perpetrators who admit past violence and who then want to access programs and assistance also have great difficulty in finding such programs especially if unrepresented and also affording such programs or assistance.

In many cases involving family violence issues, lawyers will be involved only if legal aid is available. It is beyond the scope of this Review to make recommendations about legal aid funding or guidelines or how those guidelines should be applied. However it is clear, in my view, that in cases raising serious family violence issue children are especially likely to be at risk if parties are unrepresented.

I would stress, however, the importance of having children represented in these cases. Issues of family violence are one of the circumstances in which the Full Court held that children should ordinarily be represented.186 Unfortunately, there is evidence that on occasions it is impossible to have children represented, even when a court so orders, because of lack of legal aid funding. In one reported example, it was alleged that the husband had broken into the home through the living room window, armed with an axe, and was later arrested by police, causing one of the children to commence bed wetting and another being teary at school; that on another occasions he had ‘pulled a flick knife’ at contact changeover; that he had made regular threats, including a threat to blow up the wife’s car; and that he had on several occasions breached an intervention order. Although the court ordered the appointment of an Independent Children’s Lawyer, no appointment was in fact made, because of lack of funding by Legal Aid.187 This represents, in my opinion, a lamentable situation and one that puts children seriously at risk.

I have no evidence about the way legal aid deals with cases where applications are made for legal aid by one or both parties and there is also an order for the child to be represented. Drawing on my own experience and remarks from various judicial officers during the Review, I would urge that if there are insufficient funds to provide lawyers for the child as well as the parties, the priority should be to have the child represented. In my view although there are almost always difficulties when any party is unrepresented, it is generally better to have the child represented even if one or both of the parties are unrepresented rather than to have one party legal aided and the other party and the child unrepresented. I suspect that it would generally be better to have the child alone represented than having both parties represented and the child unrepresented, but this may vary from case to case.

The beneficial impact of lawyers will be diluted, however, if they lack understanding of family violence in cases that raise that issue. It became clear during discussions with lawyers that there is a considerable amount of specialist knowledge associated with these types of cases. Interviewing clients, collecting evidence, negotiating settlements, making appropriate referrals to other agencies, will all be better done if the lawyer has a sound understanding of the various facets of family violence.

It might be arguable that at least in serious cases of family violence some formal steps should be taken in this regard, such as requiring or encouraging these cases to be handled by accredited family law specialists. However it was not possible in the circumstances of this Review to explore that possibility.

What is clear is the importance of continuing education for lawyers in aspects of family violence. Some good steps have already been taken in this regard: family violence is often a theme at legal conferences, and is discussed in the Law Council’s publication on good standards for family law practice.

A greater knowledge of the Family Court of Australia’s Best Practice Guidelines would in my view form a significant part of an effort to ensure that parties are appropriately represented in cases involving family violence issues.

There were some submissions about the inclusion of family violence in university and other educational courses. This would clearly be desirable but it would be wrong for me to make firm recommendations about how educational authorities should run their courses.

Finally, I understand that the Government is supporting initiatives involving education on family violence, and I wholeheartedly support that approach.


Recommendation 4.5

That in the funding and administration of legal aid, careful consideration should be given to the serious implications of parties, and especially children, being legally unrepresented.



Recommendation 4.6

That organisations of lawyers and bodies responsible for legal education give due weight to the importance of including programs about issues relating to family violence, including its effects on children.




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