Family Law and Effect of Cuts in Legal Aid

Recently the ABC has reported that retired chief justice Alastair Nicholson the former head of the Family Court has said that women are being put through unintended distress in family court matters and  that justice is not being delivered because of cuts to federal legal aid in such matters. The problem is said to be most severe where men accused of physically or sexually abusing their partners are able to directly cross-examine their victim in court due to a lack of legal representation.

Former chief justice Nicholson is reported as saying that the problem is widespread, unacceptable and is affecting the rights of women and children in custody and property matters. Legal aid groups are reported as supporting the comments and adding that the process is so traumatising that some women are too frightened to leave their abusive partners and go through the Family Court system.

The problem arises from a loophole in the Family Law Act 1975 (see s 100(1) ". . . parties to proceedings under this Act are competent and compellable witnesses") which means victims of domestic and sexual violence can be questioned by their alleged attacker and forced to answer. This can then give rise to a position where a person subject to something like an intervention order requiring a former partner to keep a specified distance from them; can, in the Family Court, be required to answer the questions of that partner and in much closer proximity than required by the order.

Former chief justice Nicholson is quoted as describing this situation as "unacceptable" and saying that:

"Not everyone realises the degree of fear that's engendered in cross-examining them in court and in effect putting them through the ringer... I think the effects on them are profound and it just shouldn't happen."

The problem is blamed on cuts to legal aid funding causing an increasing number of people appearing in the Family Court to represent themselves because they do not have a lawyer and cannot afford one.

In response the Federal Attorney-General is reported as saying that proceedings "can be traumatic for victims of domestic and sexual violence to be cross-examined by their former partner, but he says it does not happen often". Stating that only 5% of cases going to full hearing and even less producing the situation of a partner being compelled to answer in court, the Federal Attorney-General also argued that the Commonwealth is putting its share into legal aid but that some of the states are not.

In Victoria, new guidelines have been introduced that mean if one party in a Family Court case does not have a lawyer, then the other party is not eligible for legal aid help either but this, it is said by legal aid representatives, makes difficult cases even worse: "There are going to be two unrepresented parties at trial trying to argue their case in court, so it's less than an ideal situation," says Pasanna Mutha from the Victorian Women's Legal Service.

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